PB Minutes 9-9-08

Minutes

Meeting of the Planning Board

Regular Session

Village/Town of Mount Kisco

Tuesday, September 9, 2008

Meeting called to order at 8:05 P.M. at the Municipal Building Mount Kisco, New York.

Members Present: Chairman Joseph Cosentino

Vice Chairman Anthony Sturniolo

Doug Hertz

Sol Gibbons

Ralph Vigliotti

Joseph Morreale

Members Absent: Stanley Bernstein

Staff Present: Nanette Bourne

Anthony Oliveri

Whitney Singleton

Formal Application:

Crossroads Plaza

639-657 East Main Street

PB2008-15

Present: David Steinmetz, Attorney at Law, Zarin & Steinmetz

Brad Schwartz, Attorney at Law, Zarin & Steinmetz

Richard Cohen, Buckingham Properties

Joseph Scaltro, Engineer, Accurate Engineering Associates

David Steinmetz: Briefly, Crossroads Plaza approved by your board in 1998; is what we believe to be a successful and attractive shopping center here in the Village. As you all know, at one point one of the spaces, 6713 square feet was utilized by UBS, arguably as an office rather than a straight retail space, although retail services were provided. The application tonight really is quite simple. We want to put that 6700 square feet back to the identical retail use that was approved by your board in 1998. To dispel any concerns that the Board may have, originally there had been discussion about putting a drug store chain in that space, about the possibility of combining that 6700 square feet with an adjacent vacant 1300 square feet. That is not what we're here for, that is not what we're seeking. We're not seeking to join the two spaces, and we're not seeking to do anything other than straight retail in those 6700 square feet of vacant space. The space is vacant and has been vacant. I apologize; Mr. Ed Cohen could not be here tonight. He was called on some humanitarian and charitable business out of the country. He did write a letter to the Board apologizing. He was going to be here at last month's meeting, but when it was cancelled, he was unable to rearrange his schedule. But Richard is here, and he asked us to make it clear to the Board that we need to get this space rented; we need to get this center occupied. They are having tremendous difficulty legitimately putting the space out to rent with this change of use back to retail hanging out there. They are losing upwards of $30,000 a month in retail; as I'm sure any of you on the Board can imagine with this type of space. We think it's a real simple application. We're not changing the parking, we're not changing the circulation, and we're not changing anything on the exterior. We simply want to put the space back to what it's approved for.

Chairman Cosentino: Just a clarification. I was on the Board at the time of this agreement with the Village 10 or 12 years ago. There were 17 parking spaces dedicated to Ben and Jerry's and the Luppino building across the street. Do the 17 parking space get included with the 119, since they're dedicated to others?

Nanette Bourne: In the resolution, #14, no signage shall be erected to suggest specific parking rights. There are a couple of references to that and the resolution does not specifically discuss what we remember to be the discussion at that time. But it talks about conditions in the title need to be included in the plan and failure to do so is non complying.

Chairman Cosentino: So if we could assume that the 17 parking spaces are included in the 119, there's no problem. Whitney, do you agree with that?

Whitney Singleton: I'll go back and do a review of this application. I will clarify that.

David Steinmetz: Point of information that might help and answer the Chair's question; when the Village conveyed this property to our client, the Village specifically put language in the Deed that says the spaces that we are talking about are to be counted toward Crossroads or the centers bulk and not toward anyone else's bulk.

Chairman Cosentino: And you have documentation on that?

Brad Schwartz: Yes, included. This should be in your packet. Exhibit B.

Nanette Bourne: But it can't prevent others from using it.

David Steinmetz: Absolutely; and that was at the request of the Village. The Village said here's the property, you count it toward your bulk, but please allow others to use it on a first come first serve basis.

Chairman Cosentino: I want to clarify this because every time we negotiate with somebody else nearby he says he has nine parking

spaces to himself and no one can use them. That is what I want to clarify.

Brad Schwartz: The language states, "the party of the second part, which is us, shall be solely responsible for the maintenance of the property herein conveyed and shall be the only party or entity entitled to utilize said property to meet the bulk zoning requirements of the Village of Mount Kisco.

David Steinmetz: So that goes to our required 119, and we're the only ones.

Chairman Cosentino: Fine. I wanted to get that clarified for the minutes.

Ralph Vigliotti: There was a time about six months ago, maybe it was a physical therapist or trainer, that had these spots labeled indicating no one is to park there but the clients of this particular company, and according to what you just read, and I had complained about that because the retail across the street could not park there and the understanding was that those spaces would be available to all here and here.

Chairman Cosentino: But if you look at the map, those spaces that were dedicated to Somers Orthopedic are here.

Ralph Vigliotti: And they should not have been dedicated but they were. Those signs are down now.

David Steinmetz: I don't know if those are the Parcel B spaces.

Ralph Vigliotti: How do we make sure?

David Steinmetz: The "B" line is right here.

Ralph Vigliotti: So if we're calling this the east side wall, there are eight spaces. Those signs are now down, but I just want to prevent that from happening again.

David Steinmetz: So that my client is clear, what the Board is saying is that in the future should my client wish to try to restrict certain spaces to certain potential tenants, either he can't or he would need to come back to the Board and explain a reason why. Maybe there would be a legitimate public health, safety and general welfare reason.

Ralph Vigliotti: There was an agreement ten or twelve years ago that these seven or eight spaces would be available to the retail across the street.

Chairman Cosentino: The problem is in the agreement here; it gives them the right to take up the full 119 spaces. It was never put in the resolution.

Ralph Vigliotti: I'm going to ask Whitney if you would be kind enough at some point to research that. There is documentation to that effect. There was a small road that came through Park Avenue. That road was a Village dedicated road, it was purchased by Mr. Cohen, the retail across the street was very upset that opportunities were not given to everyone in that area, and I believe there was a deed restriction and understanding or part of the resolution that these eight spaces would be available to the retail across the street.

David Steinmetz: I'd like to explain two different things. One, the only property that the Village conveyed to my client was Parcel B. This is Parcel B. Parcel B is subject to the restriction that the chairman just read about the bulk. This, I think, what you're talking about is a license agreement that was entered into and expired.

Brad Schwartz: Correct. It was a one year terminable at will.

Ralph Vigliotti: I don't think so. We're going to stop here. You guys need to do your homework, and our attorney will do his homework. The property owners across the street have been the owners of that property from day one, and this goes back 10, 14 years, and they had a concern that was addressed by Mr. Cohen at that time that these spaces, in all fairness to the Luppino's who own that property, that these spaces were set aside for their use that they would not be exclusively used by anyone that is renting property in the building. So, just check it through. I don't want to be argumentative; I just want to protect the retail across the street. Mr. Luppino would be very happy to hear that I am here to protect his rights.

David Steinmetz: We will make sure he hears that. Whitney, we will provide you with a copy of the license agreement that I think you remember I gave you when we met on that topic.

Whitney Singleton: The license agreement that wasn't paid for nine years by the property owner. That's when we decided to sell the property, remove it and Deed it. And those Deed restrictions can only encumber the property that was conveyed. It conveyed that Parcel B be made sure that it was mutually available to all people and while it could go to the lot and bulk requirements for the applicant and solely for the applicant it was to be made available for all in the area. So, it couldn't by definition at least by the Deed, extend beyond Parcel B.

David Steinmetz: Having said that, you should know that Mr. Cohen has always tried to be entirely cooperative to all of the neighboring properties.

Ralph Vigliotti: I'm not talking about Parcel B right now. I'm talking about these eight spaces that are along the wall on the east side of the building.

David Steinmetz: Absolutely.

Whitney Singleton: We'll look into it.

Ralph Vigliotti: My concern is we're going back to retail, and I want to make sure that whatever that retail is there has to be some associated traffic counts and some associated studies done, because it's night and day from what it was 10 or 12 years ago in that area. So whatever retail you're going with, which you don't know, I think it merits something that we need to talk about. There is retail that is normal nine to five and then there could be seven days a week, 24 hours a day. It's going to impact this road, which is in front of Park Avenue now which doesn't work as far as ingress and egress, and I want to make sure that whatever retail is going there that it is not going to exacerbate a bad situation as it is now. We will scrutinize whatever retail you intend to bring there. To make sure not just that section of town, but that the traffic that it generates and those patterns are actually looked at.

David Steinmetz: Mr. Chairman and members of the Board, with all due respect and regardless of what Mr. Vigliotti has said all we're seeking to do is that which you've already granted permission from my client to do. So I totally appreciate the comment, and I think to the extent that you have concerns about what other properties may or may not do to contribute to Park Road and the neighboring other properties, you absolutely have a right to analyze that at some point in time when other property owners come forward with an application. With this unique situation, my client has an approval. He has an approved retail center for retail use under the Mount Kisco code. We have spec'd it, designed it and built it in accordance with the Mount Kisco Code, and we're seeking to use it in accordance with the Mount Kisco Code. So, regardless of what retail use he brings in there, he's allowed to do it.

Ralph Vigliotti: Why are you coming before us this evening?

David Steinmetz: Great question and I'll answer as I always do with all of you very honestly and bluntly. In probably nine other communities that I could rattle off, I wouldn't be here. But you have a unique code; a very protective and conservative code in many ways, which is good for all of you and good for your community. Your code has been read and interpreted by your building inspector to require my client to come back before the government and ask for permission to do that which he already has permission to do, approval to do retail, for the simple reason that along the way he brought in an office. He put an office in there in 6700 square feet, used it in that fashion legally, no problems. Now he's ready to come back and use it as a retail center. Your code actually says because he's going from office to retail, which definitely has a higher parking demand, we have to come back for a Change of Use Permit. If you read the first letter I sent to you, I put language in there; we're going to come in because we always come in to cooperate and work with you and make sure everything is square at the corners. I don't think we should have to be here, I don't think we should be wasting your time and I certainly don't think we should be wasting my client's effort and money to do what he's already permitted to do. He's a retail center, he's built a retail center, you analyzed it, you did a five year SEQRA analysis and from 1993 to 1998 this property was thoroughly studied.

Chairman Cosentino: In all fairness, from 1993 to then things have changed considerably. Whitney, since they're looking for a change of use, which is fine, they are entitled to it, and yet this Board as planners does not know what is going to go in there, does this Board have the right to know what is going in there at the time and review it?

Whitney Singleton: They're telling you what the use is going to be.

They're not telling you what the user's going to be.

Chairman Cosentino: But you can have use of anything that will compact the area more. My question is solely, can we review it?

Whitney Singleton: If you're looking to see the associated impact for a particular use, and there is a use being proposed, and they can go from one retail use to the other retail use without a Change of Use Permit then what you would anticipate to be the spectrum of impacts for retail uses that would be permitted in the zoning.

Ralph Vigliotti: Would you read off the wide range of retail uses for that site?

Whitney Singleton: For GR.

Doug Hertz: Mr. Chairman, while Whitney is looking this up, I have to say, and this is a rare thing you'll ever hear coming out of my mouth, I happen to agree with the applicant. I don't know why they're here.

Chairman Cosentino: They're here because the Building Inspector determined that they should be here.

Doug Hertz: I understand, but we're being asked to give them a Change of Use that we've already agreed is okay.

Ralph Vigliotti: 15 years ago.

Doug Hertz: But they haven't violated their site plan or changed their site plan.

Ralph Vigliotti: No they have not. They came before the Planning Board "X" number of years ago to bring in a business use there and the Board approved that. They're back before us because they want to go back to retail. The business use had very little impact on that neighborhood. There are neighborhoods along there that I want to make sure are being protected, by not putting a McDonalds there or a Burger King. They came before us to have a business use.

David Steinmetz: That's correct. Fifteen years has changed; a lot has changed. The most significant thing for our discussion tonight is the parking requirement.

Ralph Vigliotti: I'm not here to talk about the parking.

David Steinmetz: But that's what you have to talk about, and I understand the stomach ache that you're wrestling with. You're here wrestling with a use, not a user. What you said three minutes back; you'd love to regulate users. You'd love to say this retail guy generates this much traffic, this retail guy generates that much traffic. That's not what you're allowed to do under zoning.

Ralph Vigliotti: I want to find out what's in the retail and I want to make sure that Mr. Cohen is not bringing in a retail business that is going to tear apart that section of town because it's so busy.

David Steinmetz: That would require something different from what I am here asking for.

Nanette Bourne: To put this in perspective, the reason why this came to the Planning Board is because the applicant's original application identified a user. It was over 8,000 square feet.

Doug Hertz: I thought that was the reason they are here, because they originally were suggesting combining retail spaces to get over a point where they did need a Special Use Permit. But now, what they are suggesting is simply using the space in the manner to which it was permitted. So, I still ask the question, why are we doing this?

Chairman Cosentino: As I've said before, the Building Inspector would not give them a permit, and sent them before us.

David Steinmetz: Subsequent to Nanette's comment, when we said we're no longer doing that, we were still told to come back.

Nanette Bourne: Originally it was Austin who told them to come, when they wanted Walgreen's.

Chairman Cosentino: Then I said if you're going to be talking about Walgreen's, it's on the application, come back again with just a Special Use Permit without Walgreen's, which is what you've done. But the real reason they are here is that the Building Inspector said that the use of the insurance company that was there was sales, and he had to come back to change the use back to retail.

Whitney Singleton: It's the function of this Board to plan for this site. It's not the function of this Board to determine permitted uses in the zoning districts to determine the propriety of the Building Inspector's interpretation. If they don't like the Building Inspector's interpretation then they make an appeal of that determination to the ZBA. They are here for an application for a Change of Use Permit to go to a retail use on the site which is permitted, which does have the required parking requirement. If they don't like the determination of the building inspector, they have avenues of relief which they've elected not to pursue. I think we are wasting our time to debate that issue.

Chairman Cosentino: In all fairness, I think that the Board wants to put certain things in the minutes. We have other people in this Village that ask questions, and they can always pick up the minutes and find that we've already asked the questions that they're looking for. We're trying to protect the Village. That's our job. We need our Village Fathers to realize what we're doing. As far as retail, they're entitled to retail, but these questions have to be asked.

Whitney Singleton: I think I can probably give you a reference to a prior application that was reviewed by your board many years ago and litigated several times before your Board. If you recall on the corner of Barker Avenue and 117, there was a gas station, which was the subject of a subdivision application and it did not want to disclose a use for the property. The Board asked how we can review an application for a subdivision when we don't know what the use is going to be on the property. And the advise that I had given you at that time in which your board adopted and I deemed to be appropriate then as well as now, is to look again at the uses that could be allowed in that zone. In this particular application I can read to Mr. Vigliotti the permitted uses on the zone.

Chairman Cosentino: On that same note, if you read the minutes, we approved the land but he had to come back and tell us what he was going to put there for a site plan approval. The difference here is a site plan has been approved already.

Whitney Singleton: Understood. While the applicant is back before your Board with a host of permitted uses in the zone, they are specifically relegating themselves to retail use. If they wish to change that use and it has a higher parking requirement, they will come back for another Change of Use Permit. If they wish to change with another permitted use with a lower parking requirement, they will simply seek a Certificate of Occupancy building permit.

David Steinmetz: We agree with counsel on those statements.

Whitney Singleton: If they go to more intensity in the future, it will require a Special Use Permit.

Ralph Vigliotti: I would like to hear and place on the record what retail uses are allowed in that zone.

Whitney Singleton: The principal uses are stores and shops to the conduct of any retail business excluding drive ups, drive in and not to exceed 8,000 square feet. Personal service establishments, restaurants, drinking establishments, administrative business and professional offices, post offices, banks, dry cleaners, laundries, Laundromats, libraries, museums, government uses, parking lots and structures, educational training facilities, service establishments, residences, drug stores and limited situations, which are inapplicable here, gasoline stations, physical training studios.

Chairman Cosentino: Correct me; add to that, anything over 8,000 square feet they have to come back to us.

Vice Chairman Sturniolo: If it appears we're saddled with this change of use issue because another entity in this building said you need to come back to the Planning Board and after listing to Whitney's litany of potential uses, why don't we simply focus on what use would have the most dramatic, the highest impact, and let that be the driving factor. If, and I'm making it up; if a warehouse use were permitted in this district, then we would look at what is entailed with a warehouse; tractor trailers, loading trucks, midnight deliveries, all that. So why not pick from the list the worst case scenario and move forward with that. Other than, if the applicant is willing to state for the record, who is going to go in there; the name of the tenant.

Richard Cohen: We don't have any tenants at this time.

Chairman Cosentino: I don't know what use would be more intense there, but they still fit the criteria of 119 parking spaces no matter what it is with what Whitney just read.

Vice Chairman Sturniolo: Going back to the hypothetical warehouse use, if you had to build loading docks you would have the change the amount of parking spaces.

Chairman Cosentino: That would trigger Planning Board approval.

David Steinmetz: That would require a change of use of the modification of the site plan. I don't have approval for a warehouse, I have approval for a retail center, which has a parking ratio of one to 150 for the first 10,000 and then it drops off. Which, you should all know is one of the most conservative parking ratios. The first 10,000 square feet of this center is parked at a Christmas peak parking ratio. A more conventional analysis would be one to 200 or one to 250 for the entire center. When I referred to the Mount Kisco code as a conservative code in that regard, it is. Reading codes for a living, there is a value to having that step that you've created, that first 10,000 square feet is heavily parked.

Vice Chairman Sturniolo: So let's take the worst case scenario and move forward.

David Steinmetz: So the record is clear, we are not here for a use that deviates in any way from the use that's approved on the site plan which is parking ratio of one to 150 for the first 10,000 and then step down there, which is under Mount Kisco's code, the straight retail use. All we're asking for is straight retail.

Chairman Cosentino: The nice thing about it is if he got a client such as Walgreen's, and he's got 6713 square feet and Walgreen's need 10,000 square feet, they have to come back here because it's over the 8,000 square feet.

Vice Chairman Sturniolo: If the client comes in and doesn't need more space, the worst case scenario we're grappling with is if it's something that would have a greater parking and turnover, such as a store that does a lot quicker business but is still considered retail, still fits the same shoe size as what is permitted. That's the intangible that we're trying to deal with right now. There is a difference between square feet of Walgreen's and square feet of repairing Stradivarius cellos and violins.

Ralph Vigliotti: Or a Dunkin Donuts with high turnover. I am placing on the table concerns of that neighborhood. It has nothing to do with retail changing back.

Doug Hertz: This is more a question of our ability to do anything. They have already complied with the strictest parking count that we can get them to comply with, so what discussion are we going to have that's going to get them to go beyond complying with that; restrict them even further.

Ralph Vigliotti: We had a similar discussion when we were going to put a Dunkin Donuts in the former D'Agostino's, the carpet place. It was a retail building, we had conversations whether the ingress and egress would be a very difficult that side of town. By right, they could have put a Dunkin Donuts there but they listened to us and they were able to move differently.

Doug Hertz: I totally agree with that.

David Steinmetz: If we want to put a Dunkin Donuts we've got to come back.

Ralph Vigliotti: I hope we're together on that. I want to share that with you very early on.

Joseph Morreale: If an applicant comes in and gets a special permit for retail in the site plan, then they come back and want to revert, do they have to rescind the special permit?

Whitney Singleton: I think we're throwing out nomenclature that is not necessarily applicable. They got a site plan approval for a commercial building that shows at their own election to convert to another permitted use within the zone with a different parking requirement theoretically, and now after having made an election to do so and after having paid a Certificate of Occupancy to use that space for an office use, they wish to revert that to the original use to which they no longer have a Certificate of Occupancy and in doing so they need to comply with the requirements that exist as in present day. They can't simply go back and put themselves in the position of saying well it was retail at some point in time, and I want to reclaim that. If there had been a change in the parking requirement since that point in time, then they would be subject to that and they may not be able to revert back to that use. In this particular circumstance I think the same parking requirements exist today. And I think what would probably be appropriate is for me to review the application and lay out to your Board what the permissible do's and don'ts are relative to the review of this application as set forth in our code. That might make a better use of your board's time.

Chairman Cosentino: But you could also argue the point that people came off the street and bought insurance there. That was sales.

Joseph Morreale: So your answer to me, Whitney is that you should take this under advisement?

Whitney Singleton: No. What I think I suggested was for me to do an analysis both to review the application for it's compliance with the zoning, for Nanette and Anthony to do an analysis as to whether they think this compliant or there are issues of non-compliance and then for me to identify for you what, pursuant to the code, are permissible areas for you to consider relative to this site.

Anthony Oliveri: There is a memo from Austin in the packet regarding a number of existing zoning non compliant dimensional requirements. That could affect any review, obviously looking at it as a new change of use application.

Richard Cohen: With all due respect, I just want to emphasize that our company is suffering a loss of $30,000 a month. We haven't had any reduction of taxes while this has been in front of the Board.

Chairman Cosentino: But this is the process.

Richard Cohen: I understand but I want to make sure that is known because that does have an impact on our company.

David Steinmetz: We would hope that your Board could deal with this tonight. If you can't deal with this tonight because you don't have a resolution or there is answers to questions you still want, we would ask that you bring us back as soon as possible because as I'm hoping you could all understand, it's a lot easier for a center to lease space when it has space that is currently lease-able as opposed to sign my lease but I can't let you occupy it because we still have a process.

Chairman Cosentino: Yes, we will work on this. We'll get the information back from our attorney, and expedite it as quickly as possible.

David Steinmetz: If there is anything else that you need us to supply at the next meeting, please let us know.

Nanette Bourne: What would be helpful is if you could break down who the tenant is and their square footage, use and appropriate applied to that.

Whitney Singleton: Also, the issue regarding lighting. I know that you address that in your memorandum, but the Board will be entertaining later this evening new lighting regulation, which will be adopted which is going to not be grandfathered.

David Steinmetz: If you would give us the latitude of a few more minutes, Mr. Cohen brought his lighting consultant with him here tonight. I'd prefer the gentleman not come back next meeting because I think it's a pretty easy issue. We built what was asked, and as I understand it your board spent a lot of time and effort in 1998 spec-in out the lighting, location and fixtures to accommodate Timber Ridge and others, and we had our lighting consultant go out there. He found that there were no deficiencies, under lit areas or excesses. I'm hoping that this is a non-issue, but if there are questions about the lighting he is here and he can answer them. My understanding is your proposed regulations are actually more lenient than the old regulations in certain respects.

Doug Hertz: It would surprise us.

Nanette Bourne: Are they compliant? That becomes a very easy discussion?

Brad Schwartz: Are you saying there is not grandfather protection in the new proposed plan?

Doug Hertz: No.

Whitney Singleton: It would be terrific if you could broach that issue with the Board.

Brad Schwartz: Did I see in an earlier version that it does have grandfather protection?

Whitney Singleton: There is a copy of it in tonight's agenda.

David Steinmetz: Have you received any complaints about lighting on the site that we are unaware of? We know there was a letter written by the Mount Kisco Beautification Committee to my client commending him on the beautiful landscaping, the building and the parking lots and the grace and elegance of the facility at the gateway to the Village. We have only gotten compliments on that site.

Joseph Scaltro: I made two site visits and took some hand readings with a hand foot candle meter. My basic feeling was that the installation meets the basic intents of the code. It's not glaring, excessive lighting or misdirected lighting. I did some quick numbers assuming I really believe its 100 watt high pressure sodium lamp. I did a calculation saying it was 150 watt high pressure sodium lamp and found that under ASHRAE 90.1 you're allowed .15 watts per square foot. We're at about .075 per square foot. So you can see that they are very frugal on the amount of electricity and it certainly proves that it's not over lit or excessive lighting. I further walked around and did not see any glaring spots. I was looking at all the traffic lights. I looked at the neighbor who does have cobra heads. It is certainly well-engineered in design system of eight years ago. Is it compliant to the new dark sky regulations? No it is not, but it is still a very good lighting design. I took reading at the curbs, it doesn't have trespass. It's got numbers like .2 and .1 even though you're allowed .5. I read your old code was an average of 2.4 with a minimum of .6 foot candles. I believe your new code is really coming more into line with what the ASHRAE energy compliant standards are, where for a retail use you're looking for .8 foot candles average with a .4 minimum. So you can see that your lighting levels in your new codes are starting to reflect where all this leads in the energy codes. I'm actually going to an IES meeting next month where hopefully they are going to be talking about revamping the IES handbook because the book is out of date today. I could say, with my 25 years experience, I walked around the site; I did not see any glare or misdirected light. There is nothing pointing up and it certainly seemed like it was meeting the intents of the code. Now, it was designed and installed way before you had this new code and way before dark sky existed, so how could it meet that? It couldn't, but it's certainly a well designed spot and gives adequate lighting without being excessive and without giving glare.

Vice Chairman Sturniolo: Just a few points. Our concern is not be it a sodium fixture versus another fixture. Our concern is a couple of simple things. When you do a full blown photometric lighting plan, do they comply with the new lighting standards that we have? And, are the fixtures full cut off? If they're not, go ahead and modify them. There is a note, David in your letter to us that says your consultant will be present at this meeting to explain how the current lighting meets the spirit and attentive of Village regulations. AKRF advised us that it believes strict compliance is required. As one voting member of the Planning Board I would like to see strict compliance as stated in your letter to us and as stated from our planner.

Joseph Scaltro: Strict compliance would not be possible. It is not a cut off fixture, so I could never do that. Your code also requires that the concrete base extend two feet above grade. Their bases are basically at grade. What they have could never meet full compliance with your new code coming in.

David Steinmetz: Are you requesting that my client tear down all those fixtures, tear down the supports and re-build them all? These were not off the shelf fixtures. As I understand it, you and the chair may recall, your board in 1998 required a specific fixture. They built the fixture, paid extra and my understanding is that Timber Ridge has written letters saying there is no excessive light or glare. I absolutely understand that you're entertaining new, more state of the art lighting regulations, and it sounds like even our own consultant finds it commendable that you're doing that. The issue is whether this is the application for you to say tear out what you've got and put in something new. If I understood what Whitney was suggesting maybe there ought to be some discussion of a grandfathering provision.

Whitney Singleton: What I was saying is, you're here, the Board is looking for a couple of improvements to the site, you're going to have to change it within a year and a half anyway, it might be a good opportunity to address that concern of the Board now rather than later.

David Steinmetz: There is at least one significant change in the text that is subsequent to the version Brad and I saw. Maybe this is an issue that we need to talk to Whitney more about and maybe even to the Mayor and the Board of Trustees as to an existing site that is not otherwise causing difficulty in the Village. I hear your concerns and you know we want to try to address them. I just don't want to turn to a shopping center that your Beautification Committee has commended for its grace and elegance and now tear stuff out.

Vice Chairman Sturniolo: There may be a lot of mixing in of The Beautification Committee what Timber Ridge Road years back to right now, and the issue with the sodium vapor lamps, etc. I'm just saying that for, and I believe you've represented other clients in the past year or two that have been here, and we've always reiterated that we're working on new lighting codes and everybody needs to comply, so why not address those now because eventually the code will take place, and it kind of goes back to the point that he said. I'm saying there is a new lighting code and I'd like to see it enforced.

Chairman Cosentino: Is the new lighting code brighter than what they presently have?

Vice Chairman Sturniolo: No. Until we see a full blown photometric lighting plan you can't answer it.

Joseph Scaltro: There are numbers that are below your .6.

Chairman Cosentino: The reason why I say that is because they just settled a problem with Timber Ridge which was brought before the Village Board on the high intensity lighting there and I think the last letter from Timber Ridge to us was that they are happy to put brighter lights in there. You're right; we should go by the code.

Joseph Scaltro: We looked at the lighting that you had and I made sure with the trespass lighting we weren't offending any of the neighbors. If we were to change light fixtures that are located here, we would then be putting more than the .5 foot candles over the curb line. So, it wouldn't be something where I could change the light fixture or to a higher wattage or different type and then still meet the cut off.

Vice Chairman Sturniolo: A full cut-off fixture is an independent subject from the type of lamp that's in the fixture. That's what we're talking about. If anything, a full-cut off fixture is going to help Timber Ridge even more than they are enjoying the lighting right now.

Ralph Vigliotti: Currently the lighting works well. Whether it matches our current code is something else, but going through that neighborhood every night I think it's fair and reasonable. It may not match the lighting code and that is something that needs to be addressed. I want to make a fair comment. I'm more concerned about the use than I am about the lighting that seems to be fair and reasonable.

Brad Schwartz: To match it would be brighter lighting.

Joseph Scaltro: Yes. To match you would end up with higher intensity you would need a higher pole. Right now you have a nice ten foot pole that is very residential. You have a lower wattage in there that makes it very comfortable. If I was to try and redesign this I would probably be at 12 to 14 foot poles.

Vice Chairman Sturniolo: When you read the code you will see there is some leeway on pole height. You may not wind up replacing poles. You may wind up replacing the fixtures with full cut offs.

David Steinmetz: How significant is that base issue?

Joseph Scaltro: That's big. The new code requires the new base to be 24 inches above grade.

David Steinmetz: It sounds to me like we would have to create a whole amount of disturbance and a construction project throughout the site where we're building concrete bases.

Chairman Cosentino: Counsel says within a year and a half you're going to have to address it anyway. Maybe now is the time to address it.

David Steinmetz: Again, I'm being candid, I don't know how the Board reacts, but maybe this is an issue that the Board of Trustees needs to consider after you do your referral back to them. Procedurally, where are we? The Planning Board is going to be commenting on the new proposed guidelines?

Whitney Singleton: The Planning Board is proposing. There's no referral back to them.

David Steinmetz: Okay, but it's going from here to the Board of Trustees.

Whitney Singleton: Correct.

David Steinmetz: I don't want to stick around and burden the end of your agenda with more comments, but I hope you would consider grandfathering certain aspects.

Joseph Morreale: One of the things I was curious about is there are three categories. I am trying to figure out which category you were quoting from because I don't see the consistency here.

Joseph Scaltro: There was one where you had low, general retail uses.

Joseph Morreale: Now I'm reading here .2 to .8 minimum average and maximum. Is that where you were?

Joseph Scaltro: Yes. .8 average, .2 minimum with a uniformity ratio of 4 to 1, I'm assuming that's average to me.

Joseph Morreale: And the maximum horizontal foot candles at lot line are .1?

Joseph Scaltro: Yes.

Joseph Morreale: What did you say?

Joseph Scaltro: I had maximum horizontals of point… I'm not exactly at the lot line in the parking spots themselves. I'm at .6, .5, .2, .1, .3, .6, .7, of course there are light fixtures right on the light line. You have cobra heads here. This parking lot here, if you remember, he had cobra heads at about 40 feet. Probably 250 watt cobra heads, so he is spilling light over here already on us. This place has a very low intensity nice lighting system and right next door we have high intensity cobra heads.

Joseph Morreale: I'm concerned about when somebody comes in front of us and says we think we meet the lighting requirements, but maybe we don't; it would be nice to match up what you're saying against what the code says. That's what I'm having trouble with. As I said to you, if it says .1 here and you're giving me .6, that's not within the code, so I'm having trouble with that.

Joseph Scaltro: But I wouldn't be able to meet it because I can't shut off these guys' lights or the street lights. Some of this is definitely trespass light from the guy with the 50 foot pole, and the town has a cobra head here and here that are adjacent to the property.

Joseph Morreale: Am I right that they have till the first of January 2011?

Whitney Singleton: Yes.

Joseph Morreale: So there is a time period in which you could make adjustments.

David Steinmetz: Understood.

Joseph Scaltro: One thought was to shut lights off on the perimeter on the timer at night you would virtually have a cut off fixture.

Nanette Bourne: What you describe is you don't have full cut off fixtures on the interior of your site, so you do have glare going down.

Joseph Scaltro: Yes. They're acorn fixtures; they are Hanover Acorn Glass Fixtures.

Nanette Bourne: The acorn fixtures are so you get the affect of the aesthetics without the glare going up.