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HomeMy WebLinkAbout20190117 Eberlein Subdivision Correspondance (8) Caffry & Flower ATTORNEYS AT LAW 100 BAY STREET GLENS FALLS,NEW YORK 12801 (518)792-1582•FAX:(518)793-0541 JOHN W.CAFFRY AMANDA J.KUKLE KRISTINE K.FLOWER February 10, 2020 City of Saratoga Springs Planning Board Attn: Jennifer Merriman, Land Use Board Coordinator Recreation center 15 Vanderbilt Ave Saratoga Springs, NY 12866 Re: Eberlein Subdivision City Project No. PB #2019. 117 42 Ruggles Road, Saratoga Springs Dear Board Members: This firm represents the Raga Family Trust, an adjacent property owner to the proposed subdivision identified above (the "Project") owned by Geraldine M. Eberlein (the "Applicant") . As expressed in prior communications from Leeanne Raga of the Raga Family Trust and Sterling Environmental Engineering, Ms. Raga is concerned about the general suitability of the property for this Project, as well as the potential adverse impacts on water resources. The relocation of the driveway and septic system and the revisions to the application materials have addressed some, but not all, of Ms. Raga' s concerns, and necessitate further review by the City of Saratoga Springs Planning Board (the "Board") . Before the Board can render a decision in this matter, it is necessary for the Application Materials and Conservation Easement to be revised, and for a full Conservation Analysis to be submitted. The Conservation Analysis is Deficient The "Conservation Analysis" provided by the Applicant is insufficient to give the Board the necessary information to direct the Applicant as to what features should be conserved, or for the Board to make its required "conservation findings. " Thus, the Application must be denied. City of Saratoga Springs Saratoga Springs Planning Board 2 February 10, 2020 Re: Eberlein Subdivision, 2019. 117 Subdivision Regulation ("Subdivision Regulation") , Article IV, § 1.A.2 . d. The purpose of the Conservation Analysis is to provide the Board with information about the property to empower it to determine what needs protecting and then for it to make "conservation findings", a determination that the conservation easement actually conserves the features on the property that should be protected.' The Applicant has not prepared a sufficient Conservation Analysis for the Board. The " [A]pplicant should prepare a conservation analysis consisting of inventory maps, descriptions of the land, and an analysis of the conservation value of various site features. " Subdivision Regulation, Article IV, § 1, B. 2 (emphasis added) . The only conservation analysis provided by the Applicant is a filled in Conservation Analysis Checklist and the Conservation Analysis map. In the Conservation Analysis Checklist, the Applicant only briefly describes the physical attributes of the present features, and does not describe the features' value as required in the Regulation, and as specified on the Conservation Analysis Checklist. Take, for example, the stream that flows through the Project site. First, on the Conservation Analysis Checklist, the Applicant does not even indicate whether it is a NYS Department of Environmental Conversation wetland, let alone what class of wetland. Second, as a watercourse, it merely describes it as "the site has an unnamed stream running through the center of the site that discharges to a culvert that runs under Ruggles Road. " This provides the Board with no way to evaluate the value of the stream or what type protections are necessary to achieve the goals of the Subdivision Regulation or the Rural Residential District set forth in the City Code. This bare bones description deprives the Board of useful information such as: • What waterbody does it flow into? 1 See also, the Sterling Environmental Engineering, P.C. letter to the Board, dated February 6, 2020, pg. 2 . Saratoga Springs Planning Board 3 February 10, 2020 Re: Eberlein Subdivision, 2019. 117 • Is this stream a tributary to a waterbody that is used as a drinking water source or for human recreation? ▪ Is this stream intermittent or does it flow year round? • Are there wetlands around the stream? • Does it contain any species of animal or plant? • Do those species have specific habitat requirements related to temperature, water chemistry, or turbidity? It is information like this that would provide the Board with the information needed to decide where to focus the conservation efforts . For example: • Should the conservation protections on the property prioritize water temperature or run off? • What other features should be conserved to protect that resource? • Is there monitoring or testing that should occur? • Is mitigation needed? • Can the stream adequately absorb additional run off? • Are there other City or government departments that the Board should coordinate with? The Applicant has not given the Board the tools to answer these questions . Simply identifying the stream and stopping all analysis at the boundary of the property is inadequate. The deficiency of the Conservation Analysis is not limited to the stream. The Conservation Analysis Checklist also identifies wooded areas greater than 1 acre on the Project site . But that description does not even describe the forest type or the relative age of the forest. The Applicant is proposing to clear almost an acre of trees, yet the Board does not know anything about either the trees to be cut or the trees to be conserved. The sparse description of the of the "wooded areas" raises questions about the accuracy of the Applicant' s assertion that there are no "trees uncommon by virtue of size, age, or species . " Without information about the values of the features on the Project site, the Board can not meet its obligation to tell the Applicant what areas are most important to preserve, nor can the Board "make written findings identifying the specific conservation values protected and the reasons for protecting such land" as required in its conservation findings. Subdivision Regulation, Article IV, §§ 1.A. 2 .b and 1.A. 2 .d. Saratoga Springs Planning Board 4 February 10, 2020 Re: Eberlein Subdivision, 2019. 117 Finally, the Conservation Analysis Map should include and label the stream corridor within 100 feet of the stream bank. See Conservation Analysis Checklist. It is incumbent upon the Applicant submit an actual Conservation Analysis to the Board, so that the Board has the information necessary to fulfill its legal duties . The Conservation Easement Should be Revised The proposed Declaration of Restrictive Covenants ("Conservation Easement") should be revised before the Board issues a decision on this Project. Conservation Easements under the Subdivision Regulations must include a "land management plan" that is approved by the Board. Subdivision Regulation, Article IV, § 1 . C. 2 .c. Currently, the closest thing to a management plan that the Conservation Easement has is a list of prohibitions. While this list of prohibitions is consistent with the list set forth in Subdivision Regulation, Article IV, § 1 .C. 2 .b, it does not constitute a land management plan for the purposes of § 1.C. 2 .c. Moreover, the Subdivision Regulations require specific language about the rights of the City Council to make determinations on violations of the land management plan and even enter the property for necessary maintenance. Subdivision Regulation, Article IV, § 1.C.2 . c. Both the land management plan and the enforcement language are absent from the Conservation Easement. Enforcement powers over the Conservation Easement should be expanded to the currentor future owners of the two proposed parcels (defined as "declarants" in the Conservation Easement) . The Conservation Easement limits enforcement authority to just the City of Saratoga Springs . However, municipalities do not always have the time, resources, or desire to insert themselves into these issues and bring legal action. This is why conservation easements often grant other parties a right to enforce the restrictive covenants. These parties sometimes include conservation groups or homeowners associations. Here, we believe it would be beneficial to grant the declarants the right to enforce the Conservation Easement against one another. The proposed house on Lot 2 is close to the Saratoga Springs Planning Board 5 February 10, 2020 Re: Eberlein Subdivision, 2019. 117 boundary of the conserved land on Lot 1 . If the owner of Lot 1 violated the Conservation Easement, the owner of Lot 2 may suffer. As the Conservation Easement is currently written, the owner of Lot 2 would need to convince the City to bring a judicial action against the owner of Lot 2 . The Conservation Easement will have a greater chance of actually being enforced if both the City and the declarants have the right to enforce it. We also encourage the Applicant to contact local conservation groups about this. Not only would giving an organization with expertise on this topic the right to enforce the easement ease the burden on the City, but such an organization may be an asset to the current or future owners in managing this conserved area in a way that maximizes the conservation benefit and enjoyment of the forest and resources. The Changes to the Plan Require an Updated Information In light of the changes to the locations of the driveway and septic system, the Stormwater Pollution Prevention Plan ("SWPPP") should be revised. It appears that lengthened driveway and new septic system location have not increased the total "soil disturbance" for the Project, though this should be confirmed by the City' s engineer. Sterling Environmental Engineering has identified specific deficiencies in the SWPPP, including information and forms that are still needed. See Sterling Environmental Engineering, P.C. letter to the Board, dated February 6, 2020, pgs. 1-2 . A full SWPPP would provide needed information on the projected impacts of removing nearly an acre of trees could have on neighboring property as well as the capacity of the stream and culvert to absorb additional run off. The presence of culverts on the Project site and their absence from the Application materials has been raised several times since this Application came before the Board. The Notice of Intent in the most recent SWPPP still states that none are present on the site. The environmental assessment form (EAF) is still deficient in the most recent submission and should be updated. Applicant should also ensure that the EAF reflects any change to the calculation of "acreage to be physically disturbed" created by the change in design. Saratoga Springs Planning Board 6 February 10, 2020 Re: Eberlein Subdivision, 2019. 117 The Minimal Review that Occurred When the Property Was First Subdivided Necessitates a Harder Look Now The Project site is a lot that was created by a subdivision in 1973 before there were subdivision regulations in place. In 1999, in order to obtain a building permit the owner needed to have the prior subdivision approved. The type of review required for a conservation subdivision was not considered at that time, so the Board will need to look carefully at what resources and features are present on the Project Site. In 1999, the Board waived "the topography requirement since it was a large site [10 acres] and it had no unusual features. " It is unclear what, if any, evaluation of the lot' s resources was actually done before reaching that conclusion. An inaccuracy documented in the 1999 minutes related to the need for culverts suggests that there may be other oversights or misjudgments in the conclusions at that time. The Board must look with fresh eyes at the property and determine what portions of the property are in the best interest of the City to preserve and ow best to acheive those goals. Conclusion The current Application is both inaccurate and inadequate . The Board can not approve this Project until the Applicant completes the application, including the SWPPP and EAF, until the Applicant provides a sufficient Conservation Analysis sufficient for the Board to render a conservation finding, and until the Conservation Easement is revised. The Board should not approve this Project at this time. Thank you for your consideration in this matter. Sincerely, A4/141/a(A- Amanda J. Kukle UU akukle@caffrylawoffice. com Saratoga Springs Planning Board 7 February 10, 2020 Re: Eberlein Subdivision, 2019. 117 AJK/ljs cc: Susan Barden, AICP Principal Planner Anthony J. Izzo, Assistant City Attorney Vincent J. DeLeonardis, City Attorney Anthony Scirocco, Commissioner of Public Works Michael Veitch, DPW Business Manager Deborah M. LaBreche, P.E. Assistant City Engineer The Raga Family Trust S:1Client.Files&Raga41221PB.Letter.I.wpd