Village Board Minutes - November 6, 2006

Minutes of the Regular Meeting of the Board of Trustees of the Village/Town of Mt. Kisco held on Monday, November 6, 2006 at 10:00pm in the Frank J. DiMicco Board Room, Village Hall, 104 Main Street, Mount Kisco, New York.

Present: Mayor J. Michael Cindrich

Trustee Peter DiChiara

Trustee George L. Griffin, Jr.

Trustee Peter Grunthal

Trustee Anthony Markus

Also Present: James Palmer, Village Manager/Clerk

Whitney Singleton, Village Attorney

Mayor Cindrich opened the meeting with the Pledge of Allegiance and asked everyone to please reflect on why we are here and asked for guidance in the decisions that we make this evening will benefit all the people of Mount Kisco. Mayor Cindrich also asked that we remember Mary Russell, a longtime resident of Mount Kisco, and Dr. George Krull, a past Trustee of the Village of Mount Kisco. Mayor Cindrich also asked that we remember Sergeant Kyu Chay who lost his life in the Middle East. Mayor Cindrich asked that everyone stop by the New Castle Cleaners and let the family know that we are appreciative of the service that his son made to our country.

1) Communications:

A. Plaque presentation to Julia Jefferson for her service on the Town Assessment Review Board.

B. Resolution Approving Request from Chamber of Commerce

Motion made by Trustee Grunthal and seconded by Trustee Griffin, Jr. approving the request from the Mount Kisco Chamber of Commerce for Police assistance for the annual Holiday Tree Lighting & Singing Ceremony to be held on December 1, 2006 at 6:00pm, all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

C. Resolution Approving the Request from the American Legion

Motion made by Trustee Griffin, Jr. and seconded by Trustee Grunthal approving the request from the American Legion to use the area in front of the Library and for a police escort in conjunction with the Veterans Day Services on November 11, 2006 at 11:00am, all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

2) Petitions: None

3) Board, Committee and Commission Reports: None

4) Village Manager's Reports -

A. Letter of Byram Lake

Village Manager James Palmer advised that the level of Byram Lake was at 95.7% capacity today, daily average pumpage for the month of October was 1.54 million gallons per day, and the Saw Mill Pump Station inflow as well as outflow averaged 1.43 million gallons per day.

Trustee Grunthal said that as he looks at the historical total monthly pumpage, it seems that it is going up at a fairly regular rate each year. Trustee Grunthal asked Village Manager, James Palmer to look into what this trend is and what is going on so that we can better understand what is happening.

B. Village Manager, James Palmer, provided the Board with a copy of a monthly Byram Lake Report provided by BLU DOT, Inc. Mr. Palmer advised that he and Jeff Econom met with BLU DOT, Inc. to consider several recommendations that were made by the Byram Lake Committee that he will be presenting to the Board at a future meeting.

C. STAR Local Property Tax Rebate Update

Village Manager, James Palmer, advised that anyone who is currently receiving the STAR Exemption on their school tax bills should have received by the New York State Office of Taxation and Finance an additional rebate check. Mr. Palmer said that anyone who has not received their check can fill out a Rebate Application Form at the Assessment Office.

D. Cable Channel Broadcast Schedule

Village Manager, James Palmer, advised that Village Board meetings will be broadcast every day and provided the Board and public with a schedule.

E. Traffic Promulgation for Hillside Avenue

Village Manager, James Palmer, presented the following Traffic Promulgations:

Hillside Avenue

No Parking, Standing or Stopping

On its northerly side from its intersection with Mountain Avenue to its terminus at Kisco Avenue.

Do Not Enter Sign on Hillside at the intersection of Mountain Avenue

Twenty-five (25) Mile Per-Hour Speed Limit for the length of Hillside, from the intersection of Mountain Avenue to the intersection of Sand Street

No-Through Traffic sign on Hillside Avenue at the intersection of Sand Street.

Mayor Cindrich said that for a number of months, following a serious accident on Hillside at the blind crest of the hill, the residents of that street have been asking the Board to improve the safety of the street. Mayor Cindrich said that the street was built well over 100 years ago and was not built to modern day specifications, there is a blind crest and the road is rather narrow. Mayor Cindrich said that the Board had a traffic consultant look at the road as well as presenting this issue at a recent Federal Highway Safety Institute Seminar. Mayor Cindrich said that he felt that they have come up with the best possible scenario to help alleviate some of the traffic.

F. Resolution Scheduling an Executive Session

Motion made by Trustee Grunthal and seconded by Trustee Markus scheduling an Executive Session following the close of the Regular Meeting to discuss pending litigation, personnel and real estate matter, all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

5) Mayor's Reports

Trustee Markus advised that he has meeting with a Committee to revise the current sign law. Trustee Markus said that the ARB has completed putting in dimensions in the zones that will be created throughout the Village and that the Building Department is now reviewing these recommendations. Trustee Markus thanked the parent volunteers at the elementary school for building a second playground this past weekend.

Trustee Griffin, Jr. stated that the wall by the Tea House at Leonard Park has been replaced. Trustee Griffin, Jr. credited "a job well done" to Jeff Econom, Assistant Village Manager.

Trustee Grunthal encouraged the Board to go ahead and make a decision this evening regarding the Library project. Trustee Grunthal said that there have been delays that are putting us behind schedule and feels that we should not allow anything to stop the project at this stage.

Trustee Griffin, Jr. stated that he was under the impression that the final design had been chosen and that all that lay ahead was aesthetic approvals from the ARB, environmental studies and contracting issues from our Construction Manager. Trustee Griffin, Jr. said that the ARB came in with their recommendations for a change of layout but was under the impression that they already picked a plan.

Trustee Markus said that he is concerned and wants to make sure that we have a discussion regarding costs before we move forward.

Trustee Grunthal stated that the issue is that there are two plans; Jim Lothrop's "Plan A" which the Library Board is comfortable with and "Plan B" requested by the ARB which turned one of the buildings by ninety degrees. Trustee Grunthal stated that the Board should come to a decision this evening so that we are essentially ready to brief Mr. Lothrop tomorrow morning to go forward with specifications for either "Plan A" or "Plan B". Trustee Grunthal said that with respect to the issue of cost, he attended a meeting wherein Calgi indicated that they are working on budgets for the two buildings, running about $380-$390 a square foot. Trustee Grunthal said that he is concerned with the delay because the rate of inflation for building/construction materials has been in the order of 9% over the last twelve months and with that in mind, Trustee Grunthal said that if you look at a cost of something like $400-$425 per square foot, we are not looking at an 18,000 square foot building with an $8,000,000 budget. Trustee Grunthal said that the Board needs to decide whether we want "Plan A" or "Plan B" and then go back to Jim Lothrop and ask him to design a building that will come within the budget of $8,000,000.

Mayor Cindrich commented that every meeting he attended the architect was given the mandate to design the building within the $8,000,000 Bond Resolution the Taxpayers voted on that included hard and soft costs. Mayor Cindrich said that he is not in favor or downsizing the building any more than it has been downsized, but does not want to go back to the taxpayers for additional funds. Mayor Cindrich said that he has conveyed this message to the Library Board that if there are any issues with respect to finishes or other problems, funding is going to have to come from private sources. Mayor Cindrich said that the original proposal that was presented to the taxpayers, and two months into the project, and after the Bond Resolution was approved, the Board was told by the architect that they could not build the building for $8,000,000 and that is why the size was reduced. Mayor Cindrich said that there have been a number of issues to overcome but feels that we are on the right track. Mayor Cindrich said that he asked the Library Board to get involved with the ARB because this is a community building and he expected the community to become involved in building it. Mayor Cindrich said that he did not ask the ARB to completely redesign or site the building on the property. Mayor Cindrich said that any encroachment onto the War Memorial is not acceptable and he additionally does not want to destroy the Evergreen Tree in front of the Library so any configuration of a building that has to do with either encroachment of the War Memorial or removal of the tree he will not entertain. Mayor Cindrich also said that he will not entertain any construction of a building that will take away from the statement that the Village Hall makes or take away from the fa�ade or exposure of Village Hall. Mayor Cindrich said that he requested last week that a meeting be scheduled with the ARB, Village Board, Library Board and other members of Boards that can attend, to come to a resolve and make a decision so that we can move forward. Mayor Cindrich said that he does not know what Jim Lothrop's holdup is, there is a footprint design that he can come up with to get the cost estimates. Mayor Cindrich said that if they cannot build the Library for $8,000,000, maybe the Bond Resolution that the taxpayers voted on should have been for more money which could have had a different outcome.

Trustee Markus said that he is ready to make his decision right now and is in agreement with not infringing on the War Memorial and removal of the tree. Trustee Markus said that the Board at that time asked for a real quote so that we could be extra cautious and now we are hearing a number that is $60-$70 more than what was projected.

Trustee Markus said that we should find a creative way to build the Library at the proposed square footage and still meet the budget. Trustee Markus said that he is satisfied with the original plan.

Trustee Griffin, Jr. said that he is in the building materials business and the trend in building materials in all levels now has softened, there has not been the inflationary pressure that we had last year, demand is off, building is off and prices are coming down. Trustee Griffin, Jr. said that there is no reason that we can't build this for the amount of money the taxpayers approved. Trustee Griffin, Jr. said that they may have to give up an elaborate heating system and use a plain boiler to get it within budget. Trustee Griffin, Jr. said that they should stick to the original plan and he aggress that the War Memorial should not be infringed upon. Trustee Griffin, Jr. said that the architect would be able through choice of materials and design factors to keep the price within the $8,000,000 range.

Mayor Cindrich stated that Charles Pieragostini was recognized by the Italian American Club and given the "Civic Man of the Year Award" for the excellent work he does as Superintendent of Recreation and as a volunteer, Joe Fedele was honored as "Man of the Year" and Elizabeth Veccio was honored as "Woman of the Year."

Mayor Cindrich asked that the Village Attorney consult with each member of the Board that attended the Public Hearing regarding the property annexation and that we do not hesitate in making that decision.

Mayor Cindrich requested a report from the Building Inspector why the "right of way" has not been restored at the corner of Lexington and Moore Avenue. Mayor Cindrich said that it is quite obvious that the "right of way" has been paved over and compromised. Mayor Cindrich said that we are trying to improve the appearance and quality of life and these little things make a difference.

6) Old Business

A. Resolution Authorizing Approving ASCAP Agreement

Motion made by Trustee Markus and seconded by Trustee Griffin authorizing the Village Manager to sign an Agreement with the American Society of Composers and Publishers to restore music to the Village's cable channel, all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

B. Resolution Regarding Cafe' La China's Cabaret Application

Motion made by Trustee Grunthal and seconded by Trustee Markus approving the following resolution:

Whereas, in accordance with Chapter 45 of the Code of the Village/Town of Mount Kisco, an application (dated November 29, 2005) was submitted by or on behalf of Caf�' La China Corp. for the issuance of a cabaret license, and

Whereas, in accordance wit the provisions set forth in Chapter 45 (Section 45-4 and 45-5), the Village Manager, James Palmer, referred the application to the appropriate Village officials to conduct the appropriate inspections and investigations, and

Whereas, such investigation called into question whether the application satisfied the separation requirements between the establishment to be licensed and a school, church, synagogue or other place of worship as mandated by Section 4-12, and

Whereas said Section 45-12 does hereby require:

"No public amusement license for a full cabaret shall be granted for any premises who se main on-street entrance shall be within 500 feet of a building occupied exclusively as a school, church, synagogue or other place of worship, the measurement to be taken in a straight line from the center of the main on-street entrance of the premises to be licensed."

Whereas, based upon the preliminary information contained within the Village's computerized mapping system, it did appear as though the 500 feet separation requirement was met. Upon enlisting the services of a professional land surveyor, the Village did ascertain on May 16, 2006 by correspondence from H. Stanley Johnson and Co. PC Land Surveyors that the dimensional separation between the front door of the subject premises and the nearest entry door of Mount Kisco Elementary School is 444.8 feet, and

Whereas, the application was advised by the licensing official James M. Palmer, Village Manager, of the denial based upon failure to satisfy separation requirements and was simultaneously advised of their right to appeal the decision to the Village Board in accordance with Section 45-8 of the Village Code, and

Whereas, public hearings commenced on September 25, 2006 and continued on October 10, 2006, whereupon the public hearing was closed. Pursuant to the rights afforded the application under Section 45-8B, the applicant was represented by Counsel, I Miles Pollock, Esq., who presented submissions on the applicant's behalf, together with various covering letters, and

Whereas during the public hearings members of the public were given an opportunity to be heard and a written submission was received from Mr. Santo Asaro dated October 10, 2006, and

Whereas in response to Mr. Pollock's written submissions referencing letters from the applicant's surveyor, Leonard Jackson Associates, the Village did have its professional land surveyors review Mr. Pollock's submissions and confirmed by letter dated October 10, 2006 that the subject site failed to meet the separation requirements mandated by local law, and

Whereas, the following correspondence and documentation was received and reviewed by the Board in hearing this appeal and rendering its determination:

June 12, 2006 letter of denial, May 16, 2006 letter from H. Stanley Johnson and Co., June 2, 2006 invoice from H. Stanley Johnson and Co., Public Hearing notice for September 25, 2006, Affidavit of posting, August 10, 2006 letter from I. Miles Pollock, PC, Public Hearing notice for August 14, 2006, Affidavit of posting, July 7, 2006 correspondence from Miles Pollock, P.C. with enclosures, Copy of Caf�' La China Corp. application for cabaret license, Undated submission of Miles Pollock submitted arguments with enclosures, October 10, 2006 correspondence from H. Stanley Johnson and Co., October 10, 2006 submission by Santo Asaro, October 17, 2006 submission by Miles Pollock.

NOW, BE IT RESOLVED that the appeal of Caf� La China Corp. challenging the determination of the Village Manager is hereby denied and a determination of the Village Manager is sustained for the following reasons:

The appellant has advanced two (2) separate arguments in support of its appeal, neither of which this Board finds compelling or determinative of the underlying issues. The appellant's initial argument is that the Code requires a straight line measurement from door to door in ascertaining whether the 500 foot setback requirement is satisfied (Section 45-12). The appellant attempts to question the accuracy of such determination by stating that the Village conducted its measurement on a two dimensional basis, not a three dimensional basis. In support of appellant's position, appellant submitted a letter from a licensed surveyor, Leonard Jackson Associates, suggesting that on a three dimensional basis, the longest side of a triangle is the hypotenuse, and in fact, the separation requirement would be met. Interestingly enough, the appellant does not undertake these calculations or measurements, and simply attempts to create uncertainty. The principal of Cafe' La China Corp. has been aware for some time that the separation requirements were in question and has steadfastly failed to demonstrate its compliance by engaging a surveyor to confirm its position. While the Code does not require a three dimensional analysis, the Village Manager nevertheless requested clarification of this issue from H. Stanley Johnson and Company Land Surveyors, who by letter dated October 10, 2006 confirmed an elevation difference of 57.4 feet, thus creating a slope distance between the two doors of 448.5 feet, still failing the separation requirements by more than 10%. These measurements have been consistently performed as part of a cabaret application procedure and has served as a basis for both approvals and denials. The appellant's failure to undertake its own measurements should not and will not be construed by this Board is placing the obligation upon the Village. It is the responsibility of the applicant to demonstrate its compliance with local law. Nonetheless, if the appellant was unsatisfied with the means of measurement or disputes the accuracy of such survey, the appellant was welcome to submit its own report, which it obviously chose not to do so.

Secondly, the appellant argues that the Village Manager's denial should be viewed as a revocation of an existing license rather than a denial of a new permit. The appellant cannot produce an existing license for the year immediately preceding the subject application as none exists, yet wishes this Board to assume that this was a de facto cabaret since it alleges it nonetheless operated without a license in violation of local law. In support thereof, the appellant has submitted documentation from a cabaret application more than a decade earlier purporting to document similar operation without valid cabaret license. The Board does not find this argument compelling. Even if the appellant's assertions and conclusions were correct, the concept of collateral estoppels cannot be applied against a municipality. The fact remains that there was no existing license issued to Caf� La China, and therefore, there could be no revocation. Notwithstanding, the appellant has been afforded the identical appeal procedures set for the in Section 45-10 governing revocation. The appellant's argument is akin to an unlicensed motor vehicle driver claiming an entitlement to a revocation hearing based upon the fact that he has been illegally driving a car for the last three years. Without a valid license, there is nothing to revoke. The action taken in this particular situation was a denial of an application and nothing more. The Board will not allow unlicensed activity to be manipulated or legitimized into some sort of property interest.

For the aforementioned reasons, the appeal is denied and the Village Manager's denial sustained.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

7) New Business

A. Resolution Approving Annie Sez Parking Lot Agreement

Motion made by Trustee Markus and seconded by Trustee Griffin, Jr. hereby authorizes the Village Manager to enter into an annual Lease Agreement with Mt. Kisco Associates LLC for $1.00 for the use of the Annie Sez parking lot for public use as detailed in the Agreement dated November 6, 2006, (with clarification of parking lot maintenance for snowplowing and sanding) all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

B. Resolution Approving Funding for NYSDEC Water Quality Improvement Projects

Motion made by Trustee Markus and seconded by Trustee Griffin, Jr. hereby authorizing the Village Manager to apply for grant funding in the amount of $370,000 from the NYSDEC Water Quality Improvement Projects, all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

C. Resolution Approving the Library Plan A Building Design

Motion made by Trustee Grunthal and seconded by Trustee Markus that Library Plan A, presented by Lothrop Associates, and attached to the minutes, be approved by the Board and that Lothrop Associates be instructed by the Village Manager on November 7, 2006 to proceed with the documents required for the Library project to proceed, all in favor.

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

8) Bills -

The following motion was offered by Trustee Griffin, Jr. and seconded by Trustee Markus to pay the bills, all in favor.

General Fund $129,409.45

General Fund Claims $115,485.50

Water Fund Claims 10,940.66

Sewer Fund Claims 2,644.68

Library Fund Claims 249.56

Trust Fund Claims 89.05

Senior Nutrition Fund 3,545.99

Water and Sewer Fund 51,601.38

Capital Projects Fund 28,824.35

Trust in Agency Fund 3,198.00

TOTAL $ 216,579.17

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

9) Approval of Minutes -

Motion made by Trustee Markus and seconded by Trustee Griffin, Jr. approving the following minutes:

Regular Meeting October 23, 2006

Motion Adopted

Mayor Cindrich Aye

Trustee DiChiara Aye

Trustee Griffin, Jr. Aye

Trustee Grunthal Aye

Trustee Markus Aye

10) Non-Local Business - None

11) Public Comment - None

There being no further business to come before the Board a motion to close the meeting was made by Trustee Griffin, Jr. and seconded by Trustee Markus, all in favor.

10:45pm

__________________________

James Palmer

Village Manager and Clerk

Regular Meeting November 6, 2006 2.

Created by pmaiorano. Last modified 2006-11-21 10:27:13.