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State of New York
County of Fulton
Town of Caroga
Minutes of the regular monthly Caroga Town Board meeting held Wednesday November 13, 2019 at the municipal building located at 1840 State Highway #10 at 7:00 pm with the following persons in attendance by roll call:
Supervisor James K. Selmser - Here
Council Member John Glenn - Here
Council Member Jeremy Manning - Here
Council Member James Long - Here
Council Member Kent Kirch - Here
Other town department representatives in attendance were Gene Centi – Lakes Management, and Attorney Greg Dunn. There were 47 members of the public in attendance which included Supervisor Elect - Scott Horton, Council Members Elect - Don Travis and Rick Sturgess, and Highway Superintendent Elect - Larry Voght.
Supervisor Selmser called the meeting to order at 7:03 pm. Following the roll call, the flag salute was held. The Supervisor announced the opening of the public hearing on the 2020 Budget. He then introduced the Town Attorney Gregory Dunn who was invited to make a statement regarding some decisions he had recommended to the board to make regarding issues with lawsuits that were against the town. He will do his best to address any questions the public has. The supervisor wants to keep this to about within an hour period of time.
Attorney Dunn thought some if not all in attendance were aware of the board’s decision to enter into a settlement agreement with Balboaa Land Development Corporation. Council Member Glenn noted it was not a unanimous decision; it was a three-to-one decision. Attorney Dunn stated he was here to answer questions in regard to that settlement. To understand what went into the board making the decision and why the attorney for the town would recommend that as the best decision for the town. As far as details leading up to Attorney Dunn’s decisions, he would go back to the very start the entire process - the donation agreement. George Abdella was interested in donating the Sherman’s Property to the town, with certain conditions attached. That the town couldn't sell the property, that the property would be maintained to the highest standards, and that he would reserve some rights that the town may have to develop a sewer system on a property that he retained nearby.
The agreement was entered into by the former Town Supervisor Ralph Ottuso without board approval. It was brought before the board and about two to three months after the transfer of the property, to the town, the board agreed to adopt the donation agreement and the terms that bound the town along with the transfer of the property. About two months after that the town board changed their mind and said, no we don't want to be bound by those conditions but we want to retain the property. At the time there was an attorney involved in the matter named Sal Ferlazzo who advised the town that the town could do that based on the doctrine of merger. That says if you don't put certain conditions in the deed that transfers property to you those conditions are extinguished and they don't exist. But the doctrine of merger is not an absolute doctrine. There are exceptions to it. There things that can contradict that such as the intent of the parties that certain conditions survive the transfer of property are meant to be abided by after the transfer of the property. In the attorneys initial look at things it was pretty obvious to him that the parties understood that there were certain conditions to survive the transfer of property because one of those conditions was that you could never sell the property. So without even looking at the law that seemed a fairly common sense answer to him, but the board then adopted and said yes we ratify those conditions. Then unilaterally without George Abdella's agreement changed their mind and said no we're not going to be bound by those but we're going to keep the property. Just inherently, you can't do that. You can’t enter into an agreement with somebody and promising to do something for them and then say no you have to keep your end of the bargain but I don't have to do what I said I would do. The law isn't really going to support that. The attorney thought it's unfortunate that the attorney advised that decision at the time but I've learned since that the attorney wasn’t really hired for the purpose of reviewing that issue in depth. He was hired to defend the town from an Article 78 lawsuit that had been filed by a number of people that didn't even want the property to be donated to the town in the first place.
So, that was a resolution that he came up with in order to eliminate that Article 78 lawsuit, and it did. The Article 78 lawsuit was dismissed at the time and the town since held the property but without knowing whether they were bound by those conditions, whether George Abdella was going to file a lawsuit and from that time forward he's always threatened to. Mr. Abdella said you are bound by those conditions. In analyzing the law and analyzing the facts it was pretty clear to Attorney Dunn what the decision of a judge would be. When faced with a lawsuit against George he was pretty certain that the judge would say, hey, you either didn't come to an agreement or you are bound by those conditions. There's pretty clear evidence that you guys didn't have a meeting of the minds and really form a contract. When we went to the hearing on October 25th the judge confirmed that. Some of the first questions he asked, “I don't even get how you can sell property when there's a cloud on the title.” He asked specifically of Attorney Dunn how are you going to defend against this type of lawsuit. The judge thought the donation agreement and those conditions were part of this whole transaction and you are arguing that the town shouldn’t be bound by those.
So yes I have argued that in defense of George Abdella's lawsuit but my personal opinion was that we were going to lose on that issue. I am 100% confident after hearing the judge speak at our hearing that the town made the right decision in deciding to give the property back to George. We were faced with a second lawsuit filed by John Livingston to set aside the referendum vote. So that the decision was not left to the people whether this property sold or didn't sell. Basically, he was given what he wanted. The town decided not to go forward with the referendum vote but to just give the donated property back to George.
Attorney Dunn continued, “I know there are a lot of people here that may not understand why the decision was made, may not agree with my decision but at every stage of the proceeding I have tried to approach it saying what is in the best interest of the town. What is the most likely outcome of this whole situation?” No matter how in depth he looked at it he had a very hard time thinking that the town was right in keeping that property and having refused to abide by the conditions that George Abdella asked for. Frankly, he felt the judge felt the same way. The law would have upheld that position. It is a shame it had to come to this that the town had to be in angst and at odds with each other for the last four or five years. Sometimes the decisions you make one day just don't turn out the way you think they will.
Attorney Dunn stated he would answer any specific questions the public might have. They could be legal or about the thought process. Now that the decision has been made we are more free to speak about what we’re thinking as we went through the process. Because he's heard it, because people have said, you really seem to do this behind closed doors. He noted you have to understand why it appears that way. Whenever you are involved in negotiating deals or handling lawsuits you have under the law the protection that when you speak with your attorney it's confidential. That your opponents not going to be entitled to get to that information or somebody else isn't entitled to take that information and spread it around. When he meets with representatives of the town, he has the privilege of speaking to them in confidence and they and he can keep these matters quiet. The reason for that is so the opponent doesn't know what we're thinking. We didn't want George Abdella or anybody on that side to know how we felt about the legal issues while we were developing the case. That’s a protection that the law affords. It is a valuable protection. That’s why you, as the residents, don’t hear everything that goes on. The public hears the final decisions that the board makes but you don't always hear the mental process or the attorney's advice.
Council Member Glenn asked why a declaratory judgment wasn’t done at that time - five or six years ago about the legality of the agreement. Attorney Dunn stated he wasn't here at the time. He doesn't know why the board didn't go through with that process. He surmises that you thought that by either talking with Mr. Abdella or deciding what you really wanted to do with the property that you could maybe resolve it without a lawsuit. That it was a better way of handling things. Attorney Dunn stated in his opinion the town would have lost based on the law. He heard what Sal Ferlazzo used as a basis for making that decision, and that is the doctrine of merger.
Council Member Glenn asked the other board members why it wasn’t done. Council Member Kirch asked Council Member Glenn why the declaratory judgement wasn’t done when this happened in 2015. Council Member Manning agreed, saying that Council Member Glenn was on the board when this happened. They noted they were not on the board at that time but he was and turned it back to him.
Beth Morris asked didn't the town file in court for a declaratory judgment this summer. Council Member Manning responded that was filed by George. Attorney Dunn stated George Abdella in defense of that lawsuit we asked for a declaratory judgment. This was the case we settled he said. Well if you think you're going to win the declaratory judgment than it is worth going to trial for but if you think the law and the facts are against you and that you're going to lose and you're going to expose the town to a damage award then it's a good thing to settle it. Mrs. Morris stated the other attorney, who she believed was under retainer, advised the town to get a declaratory judgment. She stated that George had 18 months after the decision. Attorney Dunn said that was incorrect. He noted that was the statute of limitations argument. Attorney Dunn stated the other attorney was incorrect that the statute of limitations is 6 years that apply to a breach of contract. He said there is another part to the statute of limitations: There is a thing called the tolling of the statute of limitations. The attorney noted you could have a breach that arises 3 years down the road and your statute begins from that time forward. He said it is not just 18 months from the time you make your decision. Even though the board made the decision not to be bound by those contractual agreements you never did anything opposite of that. And, you were discussing it with Mr. Abdella so there was a lot of question about what was really going on there. Attorney Dunn stated he's talked to George Abdella and he stated the town did this behind his back. Attorney Dunn said Mr. Abdella had a fraud argument. The town was negotiating the terms of the donation agreement and then all the sudden decided not to be bound by it. Attorney Dunn stated that's a fraud argument. That's another 6 years of statute of limitations. Even Sal Ferlazzo acknowledged that in the minutes. Former Supervisor Morris noted it would have been nice if the town could have heard from Mr. Ferlazzo on this issue, because he is still our Town Attorney, he is still under retainer. Supervisor Selmser said Sal Ferlazzo has not been for two years. Mrs. Morris said again it would have been nice to hear from Mr. Ferlazzo. Councilman Glenn said we will.
Attorney Dunn said you can read the old minutes. You can read what the basis for Mr. Ferlazzo’s decision was. Attorney Dunn said Mr. Ferlazzo relied on two legal doctrines: the doctrine of merger and the statute of limitations. Based on Attorney Dunn’s research, the doctrine of merger did not protect the town. Attorney Dunn noted typically in a real estate transaction the doctrine of merger comes into play when you have some conditions that are laid out. You probably should have written those conditions into the deed. If there are conditions that were clearly meant to survive the closing, if there’s lots of negotiations that go on... The court can look at those and the court can consider those and say those weren’t meant to be extinguished. It is so clear from the situation: three months later, the town board said we’re going to abide by those conditions. Attorney Dunn stated that one of the very first things the judge said at the hearing was “Sure looks like the donation agreement was part of this transaction. You're going to have to convince me otherwise Mr. Dunn.” All Attorney Dunn can tell from this is that the judge confirmed Attorney Dunn’s research at that time.
Scott Horton stated he was there at the hearing and he confirmed that what Attorney Dunn is saying was said by the judge. He did not make a ruling on it. The judge referred to the donation agreement and the donation of the property because they were in such close proximity date-wise that there was probably something there that connected the two of them. Mr. Horton noted that there was nothing in the donation agreement that said that if the town did not meet his standards what the solution would be. The donation agreement was so nebulous. Mr. Horton asked what was the board's biggest fear was it that we were going to lose the property that we were going to have to pay $3,000,000 he's trying to figure out why the board threw in the towel on this thing. You can't ignore the facts that behind all of this, for the last several years, the desire on the part of the town board was to sell the property to the CAC and George Abdella has said if I get this property back I'm going to donate it to the CAC. So there is a cloud that has really upset the citizens. Mr. Horton noted the vote was very strong. He thought there was a lot of stuff going on. Now that this has been settled we can talk freely and openly there's not a lawsuit any longer. What was it that was so compelling that we didn't want to adjudicate that first before we threw in the towel and gave the property back.
Attorney Dunn thought it was interesting about his comment of throwing in the towel. He did not agree with that, but the nebulous agreement – exactly. Therein lies the problem. In order to create a contract you have to have a meeting of the minds of both parties. If both parties have a mutual mistake in coming to an agreement then the agreement is set aside then the deal is rescinded and the parties are returned to their original positions. So George Abdella is saying I'm giving you this property based on these conditions you agreed to all of these - right, but I forgot to put those in the deed. I made a mistake. The town was supposed to be bound by those. The town is saying hey we accept the properties the former supervisor did it himself but he didn't have board authority so we spent three months negotiating these issues and we agreed that we would be bound by all of them. Then a month-and-a-half later we changed our mind because we made a mistake, mutual mistake. No meeting of the minds. A misunderstanding as to what was supposed to happen in this transaction. The judge said it looks like there was a mistake here. The judge did not know if there was even an agreement at all. It would have been void from the beginning. You may not even have had an agreement. There's your rescission. There is the judge confirming what Attorney Dunn thought: that you have a mutual mistake; you don’t have a meeting of the minds; you don’t have a contract; the judge is going to rescind this transaction; give the property back. Attorney Dunn noted we've held the property for five years. The Town hasn't done maintenance on it so the town could still be hit with a judgment for having not taken care of the property. So what should we do? Do you spend the town's money fighting it just to have the whole transaction set aside because your agreements weren’t clear or should you do the smart thing and should you eliminate that risk, and that expense. And also should you do the right thing because it's not right to keep something when you made a promise to do something and then say I'm not going to do it, but I'm going to keep it. Attorney Dunn said that’s just a basic principle that everyone understands.
Attorney Dunn stated a judge has the discretion and authority even if the law doesn't support his position to enter an order based on what he thinks is fair and equitable. Attorney Dunn did not know what the property was worth $50,000 to two million dollars - let the town keep that and have no obligations or give the citizen who was willing to donate this property to the town, the property back. What do you think sounds more fair? His position is that the court would give that back to George.
Mr. Livingston's interjected that that's always been his position. Attorney Dunn stated this hasn't always been his position because he didn't have to develop that position until Mr. Livingston filed his lawsuit. An exchange of words occurred between Mr. Livingston and Attorney Dunn.
Mr. Sturgess noted that Attorney Dunn said that when both parties make a mistake it goes back to what it was prior to the mistake. Should we have had the property - less the donation agreement? Attorney Dunn stated before the agreement – we are going to give the property to the town, here are the conditions of the transfer. There wasn’t a meeting of the minds. The town said we don’t want the conditions, we just want the property. George said no, you are bound by all of it. There’s the mistake. If you don’t come to a meeting of the minds, it is all set aside. You don’t get to keep the property. It goes back to George.
Mr. Sturgess asked in Mr. Abdella’s lawsuit what was he stating that the town did not do to the property…. Attorney Dunn stated you did not maintain it. He wanted the whole transaction rescinded. He wanted the property back, he said there wasn’t a meeting of the minds. George said that in the lawsuit.
Mr. Hogan offered just a perception. When he talks to people the perception is that this wasn’t a problem until the CAC got involved. From that perspective it has been apparent to a lot of people that the board wanted CAC to have the property. So what they did was at the very end he said you know how we're going to solve this? We're not going win this lawsuit let’s just give it back to George because you know George is going to give it to CAC. This is the board’s mechanism of getting the properties to the CAC. Mr. Hogan can’t prove this. He can’t tell you it’s correct. But he can say the people are thinking it. It has been very obvious over the years that this current board wants the CAC to have that property.
Attorney Dunn asked what is wrong with the board wanting it to go to the CAC? Mr. Hogan noted the board represents the town. If the town voted not to give it to the CAC the board should recognize the town’s wishes and go that route. Attorney Dunn responded that may be true, they did not sell it to CAC. However, had the referendum vote gone forward and failed what would his recommendation have been – the exact same thing. Mr. Hogan noted the town has been going back and forth with Mr. Abdella for a long time. Then when the CAC gets involved things change?
Attorney Dunn stated “George filed a lawsuit.” That starts to bring things to a head. The attorney did not see anything wrong with the perception that the board would want it to go to the CAC.
Beth Morris was heard to say just because they could doesn’t mean they should. Attorney Dunn responded just because you could keep the property should you? Mrs. Morris stated that is not what this is about. She asked for time to talk because the board has been holding meetings during the day when none of us can attend because we work. The attorney stated that was perfectly fine there is nothing wrong with that. Mrs. Morris stated that four years ago she worked with two of the board members who crucified a former town board for hypocrisies for not being open and they have committed the same sin that they did. “It’s OK now because it is their agenda?” It is not about George anymore – he has threatened to sue the town the minute he gave the town the property. The attorney asked why would that be. Mrs. Morris responded because somebody likes to bully people. She noted the town has been destroyed: friendships have been destroyed over this. She stated during the primary and the election the town spoke clearly. Elections always matter and for the three board members who aren’t going to be here next year good riddance and for the one that is on there who can run in two years – wouldn’t it be great to have Morris vs Long again. (Applause)
Mr. Sturgess asked at one time was the board in negotiations with the CAC for a 10 year $40,000.00 a year contract or lease? Supervisor Selmser responded that was a prior board. Council Member Manning stated it was a 2 – 2 board. It sat there and no one moved on it. That is what happened. Mrs. Morris interjected that the title was clouded. Attorney Dunn stated the CAC changed their position – they did not want to lease the property. Mr. Sturgess interjected because the town board was going to give it to them for nothing. The attorney denied that and stated they wanted to borrow money and couldn’t because they didn’t own it. Mr. Centi stated the attorney was wrong it was shown at a meeting with a representative from Fulton County that as long as there was a lease on the property with control of the property they could borrow money. That is a fact. Mr. Centi noted Attorney Dunn was at that meeting with Ron Peters. Mr. Sturgess wondered why this wasn’t revisited before just giving up.
Mr. Toskas noted right from the beginning this thing has turned out to be a huge wedge in this town. As it was said, friendships have been lost – people are in this room going at it with hammer and tongs. Whatever you think of the board’s reasons for doing the things they did – they did them. Now, here is where we are. What we have to do now is find some way of repairing the damage that’s been done. Way back when – when Mrs. Morris was on the board there was a 2 -2 tie whether we should go to court to find out if Mr. Abdella’s claim had teeth. Had we done that we would have found out A) if the property is ours to do with as we please, B) or we have to give the property back to Mr. Abdella or make some other arrangement with him. Had we done that instead of playing politics with it, we wouldn’t be sitting here fighting with each other. There is no reason for us to be doing this. It’s a nice piece of property. When we started this people were saying we want to rebuild Sherman’s. That was never going to happen. We have managed to get ourselves painted into two separate corners. Somehow or another we are going to have to find a way to get to some middle ground so this town can be whole again.
Mr. Bishop – remembers when the agreement came they decided not to lease it because Jeremy… you know because you’ve written grants, they could not get grants if they didn’t own the property. He noted we have made improvements on the property and fixed the pavilion and carousel. He commended himself and Mr. Kirch for making the doors to the carousel.
At 7:40 pm Supervisor Selmser asked if anyone else wanted to speak, hearing nothing this session was closed. The Supervisor thanked everyone for speaking their opinions and for keeping it civil.
Council Member Long noted the judges words (minutes) are now online at TownOfCaroga.com.
Public Speaking –
Joyce Barrett was shocked to find out that there wasn’t a law that septic systems had to be emptied every year. She bought her house in 1987 she doesn’t remember her neighbors ever having their septic pumped out except that she has done her own. Council Member Long noted the town law that holding tanks had to be pumped yearly. She wondered about the regular tanks. They can go up to 10 years or so the supervisor noted. She was concerned about seeing some green algae around her dock. Mr. Centi noted there is no green algae bloom in our lakes. The algae can be from a lot of things. For the record he said if anyone has concerns like that call him or Linda Gilbert and a water test can be done.
Karl & Carol Ziemann spoke this evening about the upcoming Polar Plunge. She sent an email to the board members. They requested that the town once again pay the cost of their insurance for the event in the amount of $385.00. Last year the insurance cost doubled. They had been paying the insurance for the past 10 years. Mr. Hogan wondered why a waiver couldn’t be used.
People do sign a waiver…. But the jurisdiction to uphold that is in questions and the legal expenses are in question. They hope to make close to $4,000.00 this year. It is for a good cause. Mrs. Ziemann noted they have to protect themselves. It is a one day rider. Her business liability will not cover it because the marina is not being used for its intended purpose. Mr. Horton stated so this insurance protects their interests. He noted there are certain boundaries you have to be careful of - you are asking the taxpayers to support something. It has been a wonderful thing and it brings people to Caroga.
Council Member Kirch, on behalf of the town, thanked them for putting this event on every year. It does bring people into town.
RESOLUTION #2019-113 to pay the insurance rider for the Polar Plunge was offered by Council Member Kirch at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
WHEREAS, the board heard a request from Karl and Carol Ziemann of the Caroga Lake Marina this evening asking for the town to pay the insurance rider for the one day event on January 1st 2020 known as the Polar Plunge, and
WHEREAS, the board desires to promote events in the Town of Caroga, now therefore be it
RESOLVED, that the Caroga Town Board does hereby move to pay premium for the insurance rider for the even on January 1, 2020,
Seconded by Council Member Long
Adopted by a vote of 5 Ayes: Selmser, Glenn, Manning, Long, Kirch
Supervisor Selmser noted there was a discussion last year with our insurance adviser and they preferred the town not to take out insurance directly since we don’t own the property.
Supervisor Selmser stated at this time the floor is still open but only for questions regarding the 2020 Budget.
Mr. Livingston noted our assessor through her contract is for one less hour per week. Five hours a week – Tuesday’s 9 – 2. That is $250.00 a week if she is here every Tuesday. That equals out to $108.00 per hour. So she is working less hours and more money. How does that figure?
Mr. Horton commended the board for the hard work they put into the budget. It is a responsible budget.
Council Member Kirch responded to the question from Mr. Livingston. He talked to the assessor and she works for at least 3 other towns. He asked her how compensation was determined and she said it was based on the number of properties assessed in the town. He agreed with Mr. Livingston that it is a significant amount of money but it falls into the range based on the number of properties in town. “There is value in someone who knows the town who is a resident of the town and has been on the job for a number of years.”
Mr. Livingston has heard she hasn’t even been through this town. He heard from another assessor that she said she doesn’t even know much about this town. It was noted that she does work from home occasionally. The supervisor thought she was using her own laptop. He was corrected by the clerk and Council Member Kirch.
At 7:54 pm the public hearing on the 2020 budget was closed.
Assessor’s Report – Victoria Hayner submitted a report dated 11/1/2019. Supervisor Selmser stated it is pretty repetitive with others months reports.
BTI – Lynne Delesky reported for her husband (who was at another meeting) that for comparison in 2017 they used 67 gallons of BTI, 2018 they used 48 gallons, and in 2019 they used 57 gallons. Usage is based on how wet the season is and how many streams they have to keep treating. There are 10 gallons left and Mr. Delesky would like to purchase 60 gallons more before the next price hike. Approval was asked for to send in licenses for the applicators to DEC for next year.
Clerk/Tax Collector/Registrar/RMO – The clerks report was submitted to the board. The clerk noted to the board of two upcoming educational sessions I would like to attend. There will be a tax collection program class in Clifton Park on December 3 and a NYSTCA regional meeting on Dec. 9th in Saratoga Springs.
RESOLUTION 2019-114 to authorize the Town clerk to attend meetings was offered by Council Member Long at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
WHEREAS, the clerk/collector informed the board of two upcoming educational meetings that pertain to her jobs, and
WHEREAS, the clerk/collector will be reimburse for mileage and the cost to attend the regional meeting of $35.00, now therefor be it
RESOLVED, that the Town Clerk/Collector is hereby authorized to attend a tax collection program class in Clifton Park sponsored by Business Automation Services on December 3 and a NYSTCA regional meeting on Dec. 9th in Saratoga Springs.
Seconded by Council Member Kirch
Adopted by a vote of 5 Ayes: Selmser, Glenn, Manning, Long, Kirch
Code Enforcement & Sanitation – Mr. Duesler submitted a written report – 20 permits were issued from Oct 10, - Oct. 31, 2019 collecting $1,430.00 with a total value of $155,175.00.
The code officer gave some other recommendations the board would look at in an executive session.
There are three code computers that are running windows 7 which will not be supported after January 1st. The supervisor will meet with Brian McIntosh of Canada Lake Computers on Monday at 9 am to evaluate the town computers. Some of the older computers may not be recommended to be upgraded to the new software. The intent is to do the upgrade by the end of the year. The clerk asked if the supervisor contacted the County IT department for assistance with this. The supervisor will contact the director again. At times they have surplus computers.
Mr. Shekerjian wondered if the 10 year old computers would be able to support the upgrade to windows XP.
Dog Control – Mr. Dutcher reported to the clerk that he had 5 calls for the month and wrote one ticket.
Golf Course – Supervisor Selmser noted the Golf Course is closed as of Nov5, and that the mowers have been ordered. The town has reconciled the records for the year. A voucher has been created to make settlement with Mr. Jennings on the credit card charges. The supervisor will give a report at the next meeting on the golf course.
The clerk noted the mowers will be delivered tomorrow at 9 am. Council Member Kirch asked what the plans were for the old ones. The supervisor thought in the resolution to purchase new it stated they would dispose of the old ones. The clerk responded the board did not state how, where or when this was to be done in the resolution. There is room to store all 4 mowers. The board wanted to discuss this with Mr. Jennings.
Highway – The supervisor noted the new plow truck was delivered. The town is waiting for the paperwork to get it registered and insured. There are a few minor issues with it. Adjustments are being made in house.
Lakes Management Program – Mr. Centi reported a really, really successful year. They took out 4398 bushels which is less than last year by about 2000 – but different bushels were used so the weight was about the same. The program, put into effect two years ago, has had an effect on the native weeds: in 2008 25% of the weeds were milfoil, in 2010 it was 18%, in 2017 it was 32% of the lake was milfoil based on the survey done in September by Larry Eichler it was 7%. (Applause) Chris Sirnacki was acknowledged and given applause. On West Caroga it pretty much stayed the same from year to year. In 2008 5% of the weeds were Eurasian Milfoil, in 2010 7% were milfoil, in 2017 – 8%, and in 2018 we were back down to 5%.
Mr. Centi reported the native plants are the key to longevity and health of the lake. He reported the following: Large Leaf Pond weed went from 11% two years ago to 32% of the population of weeds in the lake. Eagle Spike was 4% and went to 16% and the muskgrass went from 9% to 18%. The reverse is happening usually the milfoil overtakes the lake and kills off the native plants now we are seeing the reverse happen. This is good for the lake overall.
Council Member Glenn asked if there were any numbers on the lake steward program. Supervisor Selmser noted the paperwork was submitted for reimbursement. He thought the amount was $16,000.00. The clerk noted it takes Paul Smith some time to process the data collected. She will call them for a report. Mr. Nilsen reported he inspected 1000 boats at the West Lake boat launch. Council Member Glenn wanted to tighten up the lake management program.
Town Hall Building – Supervisor Selmser stated the major accomplishment in the past month is the restoration of the heat to the Code and Supervisor office. It has been down since May. The choice was to replace the heat exchanger or get a new boiler. The heat exchanger route was taken but there were problems. The air flow and gas flow sensors were replaced as was the circuit board. In the end they put in a new boiler for just a couple hundred dollars above the cost of the heat exchanger. Council Member Long had to make an adjustment to the boiler after installed to get it working. The supervisor thanked Council Member Long for his persistence to accomplish the replacement.
The clinic ramp was repaired by the tenant - Nathan Littauer Hospital. The original ramp joists did not have hangers they were just toenailed in. Council Member Long stated he felt it was better to access the clinic through town hall.
Youth – No Report
Historian – The supervisor noted the nice pictures in the newspaper by the historian. Mr. Nilsen stated the roll of the historian has changed over the years. They aren’t doing genealogy – they are promoting the town. He was thanked for doing a tremendous job by the supervisor.
Council Member Long noted the town has loaned the printer negatives to retired Professor Allen Farber to look at the McMartin Caroga Book. He is in the process of extracting photographs and has found originals that were color that he can use. This is his winter project.
The Supervisor noted in the health reimbursement accounts from CDPHP year-to-date through October were $42,969.00 charged against $78,529 so there is a surplus there. The insurance will lapse into the new policy will begin Dec 1st.
The county adopted a resolution for new tipping fees at the Dept. of Solid Waste. This will affect the town in the cost of recycling. The present rate for haul from the transfer station is $10 per ton it will increase to $20 a ton in 2020. For curbside pickup the town is charged $20 a ton which will go to $30 a ton in 2020. This is due to the fact that it is costing the county money to get rid of recycling. In the past revenue was brought in. It was asked if there was an advantage to recycle anymore. Last year there was revenue of $4,500. This year it has cost the county $45,000 to dispose of recycling. Other fees will change in 2020 at the county level.
Supervisor Selmser noted there will be public hearing on the County Budget on Monday November 25th at 1:30 pm in the County Building in Johnstown. The budget has to be finalized by early December.
The Town is required to have disability insurance. The current carrier is going out of business. The Town will be signed up through Shelter Point 1225 Franklin Ave. Ste. 475 Garden City NY 11530 (516) 829-8100 via the previous insurance carrier. The cost should not be changing it is less than $100 a month. The clerk asked if it will go into effect Jan. 1st. The supervisor responded yes. Council Member Kirch asked if we know anything about the carrier. No was the response by the supervisor. He stated he would be going to the information portal and pass on any information to the board.
Update on LED lighting – The supervisor has not heard back from NY Power Authority. He has reached out to National Grid regarding the buyout program they had on the equipment. He did not hear back from them so he called the 800 number and hopes to have better information by next week.
Proposed Local Law #2 regarding a Short Term Rental Ordinance - Supervisor Selmser sent on information or maybe it was forwarded out by Council Member Long, but back in April the supervisor attended a Local Government Conference in Lake Placid. One of the major topics was short term rental issues. There were four speakers. The supervisor did report on it briefly at the time. He noted a lot of other towns and villages have adopted regulations. We felt maybe it was maybe something that was critical and should be looked at. He passed on information on laws that were passed in Mayfield and Warrensburg recently and at the same time Jeremy had also found some other similar town regulations.
Council Member Long interjected that our Attorney Kirsten Dunn has read our zoning ordinance and is of the opinion that our current zoning ordinance doesn't even allow short-term rental. It's an anomaly. It’s an oversight. If an activity is not listed it's forbidden. We need a short-term ordinance if only to put short-term rentals on the legal basis. He noted there are several other reasons health and safety related.
Council Member Manning stated right now there are no standards or procedures by which somebody could check the house and make sure it's up to safety standards environmental standards. He stated there are many houses in this area that have septic systems that get used - a two-bedroom house that gets rented out to 20 people for the weekend. The systems are overflowing. We need someone to regulate that. Most towns especially in the Adirondacks on lakes have recognized this problem. Council Member Manning noted simple things like smoke detectors carbon monoxide detectors, egress for fire safety. This would give the code enforcer the ability to look at those homes before they're listed on websites or people are using them for rentals.
Supervisor Selmser noted another critical issue that comes up in other towns has been safety issues regarding parking. Clogging the roads could be a safety issue for emergency vehicles. This was a major problem in Lake George. You want people to come in town to town and have a good experience. Most communities have been adopting these to make sure you have smoke detectors and post information on who to call if you have problems.
Council Member Glen asked if permits were necessary. Supervisor Selmser stated there is a permitting process which is stated in the regulations. Mayfield has a one-year permit renewal with conditions which are required. Warrensburg has a 3-year permit. The inspection is done - you pay a fee and you can go three years before another inspection is done. Council Member Manning stated that's what we put in this. Council Member Glenn asked if the local Planning or Zoning Board could do this. The supervisor stated it would be our building code inspector. He stated the regulations could go through the Planning Board but it was noted that most towns do this as a stand-alone ordinance not part of the Planning Board or Zoning Board.
Council Member Kirsch thought this was something the board needs to do for all of the reasons that have been discussed. His only concern is the burden it's going to put on the code office. It was his understanding that Caroga is a large Airbnb market. Council Member Manning stated initially everyone will have to get one. So it will be a year of a lot of work then it will taper off after that.
The town clerk noted there are about 25 houses registered with the county for the bed tax. Supervisor Selmser printed a report from April which states there were 22 active rentals.
Council Member Manning stated the most important to him is the septic stuff.
A member of the public asked when this new law was going to be written. Council Member Manning stated it has been written if we want to pursue it we can pass a resolution tonight putting it to public hearing at the December meeting and then potentially adopting it then.
Supervisor Selmser spoke to Council Member Long on some minor changes to the regulation. The supervisor stated currently there are no fines or penalties listed in the local law. Two board members responded that that information was in there. Council Member Manning stated the board could pass a separate resolution. The supervisor wanted to have a work session to discuss this and potentially some other issues. Council Member Long stated Attorney Kristen Dunn said we could pass this resolution and then enact an application form and a fee structure but it does not have to be part of the ordinance. She was quite clear on that. The ordinance makes this whole process legal he said. Council Member Manning did not think a fine was necessary. In this it says there is a revocation of the permit. He noted there is a warning period, a suspension for a continued violation. Council Member Manning then stated he would make the resolution to set up the public hearing on the proposed law for Adoption of the Local Law number two 2019 Short Term Rental Ordinance Town of Caroga New York. The motion was seconded by Council Member Long. This will be published on the town website and make hard copies available. The public hearing would be at the December 11th Town Board meeting at 7 p.m.
Discussion: Council Member Glenn wanted the fees the application process and violations to be discussed and thought the matter should be tabled. Council Member Manning responded that everything he mentioned is in the ordinance. Council Member Kirsch noted there are no fines they just lose their permits and can no longer rent out their house. Council Member Glenn asked how much the permits would be Council Member Kirch said that's to be determined. It's more desirable to do it separately so you do not have to rewrite the local law if you want to make changes to the permit amounts. Supervisor Selmser stated we have some knowledge from other towns permitting fees. He noted the Town of Mayfield is $100 every year. Warrensburg is $350 every 3 years. Supervisor Selmser said he would send Council Member Glenn copies of the other two town’s information. Council Member Manning stated the fine and fee schedule can be decided in December by resolution.
RESOLUTION #2019-115 to hold a public hearing on proposed Local Law # 2 of 2019 a law to regulate short term rental ordinance Town of Caroga NY was offered by Council Member Manning at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
WHEREAS, the board discussed the need and reasons to have a short term rental ordinance in the town of Caroga, now therefore be it
RESOLVED, that the Caroga Town Board shall hold a public hearing on proposed Local Law #2 of 2019, short term rental ordinance in the Town of Caroga on Wednesday December 11, 2019 at 7 pm.
Seconded by Council Member Long
Adopted by a vote of 5 Ayes: Selmser, Glenn, Manning, Long, Kirch
Supervisor Selmser noted another possible local law to opt out of section 487 of New York State real property tax law exemptions for solar farm projects. He explained New York State adopted it. It gives developers of solar farms an exemption up to 10 years so there are no local property taxes can be collected unless the local towns adopt a local law opting out of the state law. That is what the county decided to do to opt out. So any solar farms could be assessed and taxes could be collected. He noted a recent article in the Leader Herald which highlighted the pros and cons. In the article it was noted that the Towns of Mayfield, Broadalbin, and Perth have also adopted laws as the county did to opt out of the tax exemption.
Council Member Long stated we still want to encourage solar. He is glad they allowed individual municipalities to opt out of the exemption but he thought we should encourage solar.
The supervisor stated at the county it was stated it does not discourage them. They have enough opportunities to invest and there is a return on their investment to build them. The potential for the assessment locally should be made locally versus at the state level.
Council Member Manning, in his reading of the law, it's not just solar farms. It is any business or residential, or any upgrade to a property, that involves any alternate energy. He stated you just can't assess the increase in value of the property because of the improvement. He was in favor of encouraging alternative forms of energy to be used on houses especially. He would hate to discourage you if it was a possibility.
Supervisor Selmser stated the board would take no action on this.
Council Member Long stated under new business is a noise ordinance.
Supervisor Selmser stated under his report there was information from CT Male attached to the voucher that was being paid tonight. Supervisor Selmser opened discussion on a noise ordinance but was not was not sure if he supports it.
Council Member Manning wanted to propose a noise ordinance, which again, most towns in the Adirondacks do have, especially lake towns. Those who live on the lake have dealt with this in the past people getting rowdy all night until 2 or 3 in the morning. What do you do in that situation? He stated in the ordinance would go from nighttime hours from 10 p.m. to 7 a.m. It would be the same for every district except the Town Center would be a different decibel level between those hours as well. He stated there is no restriction on noise between 7 a.m. and 10 p.m. he stated if you had a party or concert going on you could appeal to the zoning board for an exemption to that rule. He has heard that a lot of people have had issues with this in the past.
Town Justice Subik asked how this was going to be enforced. Council Member Long responded “that's a good question.” Council Member Manning stated it's in here. He responded it's by the Code Enforcer and the Fulton County Sheriff's. Council Member Kirch wanted to play this out - it’s a Saturday night 11pm who do you call? The Sheriff was the response. Council Member Long stated we have to see how this plays out over time. He noted we do have a separate dog officer who is theoretically on call. We have a code officer but he is mostly a daytime job. It may come to pass that the town would need a noise officer who has similar powers... The public begins to grumble. It could be the Sheriff's Department he noted. It does not specify – it just says an officer. Council Member Manning clarified it was more of a constant sound. Its 4 a.m. you have to go to work the next day that kind of thing. Council Member Manning then stated that he proposes to put to public hearing at the December 11th board meeting at 7 p.m. Local Law number 3 of 2019 a Noise Ordinance of the Town of Caroga. The motion was seconded by Council Member Long.
Discussion Council Member Glenn stated this is insane. Members of the public were heard to be in opposition. Council Member Kirch had concerns about enforcement. In principle having some kind of noise ordinance makes sense. Justice Subik stated the board didn't want to open that box. Supervisor Selmser stated he agreed with Justice Subik. Supervisor Selmser stated it would be impossible to enforce. The supervisor offered to hold a vote on this matter. Council Member Manning withdrew the resolution to hold a public hearing on a proposed Local Law for a Noise Ordinance.
Council Member Kirch asked the board about publishing a document entitled Town Board Special Statement via the news flash publication. Council Member Glenn disagreed stating everything in it was already said by the Town Attorney. Council Member Kirch wants the rest of the town to hear the boards reasoning. The document explains the reasoning behind our decision to take the settlement agreement with the Abdella lawsuit. The document was not read at the meeting.
A member of the public asked what the current status of the property was. Council Member Long stated the deed was transferred to George Abdella on October 31st. A waiver was signed by George Abdella that completely terminates all of his rights to sue us under that donation agreement.
RESOLUTION #2019-116 to include the Special Board Statement on the settlement in the news flash this week was offered by Council Member Kirch at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
WHEREAS, Council Member Kent Kirch distributed a document to his fellow board members and the town clerk several days prior to this town board meeting for their review, now therefore be it
RESOLVED, that the Caroga Town Board does hereby move to distribute the “Town Board Special Statement” via the News Flash document produced by Council Member Kirch after town board meetings.
Seconded by Council Member Long
Adopted by a vote of 5 Ayes: Selmser, Glenn, Manning, Long, Kirch
Supervisor Selmser noted the bookkeeper gave him a resolution regarding a budget transfer due to expenditures going over budget.
RESOLUTION #2019-117 to make a budget transfer was offered by Supervisor Selmser at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
WHEREAS, the bookkeeper has indicated that a transfer is necessary to maintain a balanced budget, now therefore be it
RESOLVED, that the following transfers be made as necessary to maintain a balanced budget:
TO: A8090.41 WEEDS C/E $ 650.00
FROM: A8090.13 WEED divers P/S $ 650.00
Seconded by Council Member Long
Adopted by a vote of 5 Ayes: Selmser, Glenn, Manning, Long, Kirch
Council Member Glenn asked if any transfers were necessary to cover the cost of the two mowers. The supervisor responded they will do that once they receive the bills – when they know the total amount is. The supervisor noted there would need to be some adjustments made in insurance. We will be getting some credit back and we need to take action to adjust those we will. Council Member Glenn asked when we can anticipate a refund on the insurance for the Sherman’s property. The supervisor responded he should have it next week. He needs to sign one document and send it back. The supervisor stated the insurance has been canceled on the Sherman’s property. The electricity will be turned off at the end of the week. Council Member Glenn asked what was going to be done with the money put aside in the 2020 budget to “maintain the property.” It could be used on another line item.
At 8:52 pm Supervisor Selmser opened the budget work session to look at the numbers and see if any adjustments are needed. A possible adjustment on the Highway Superintendents salary was discussed. The supervisor asked if that should be moved back to what it was in the beginning of the year. Council Member Glenn did not know how this could be done. Council Member Long stated it puts the board in an awkward spot to make a correction at this time. He stated that elected officer (except board members) were given a cost of living adjustment. What was the board’s intent? He goes on to say having made the mistake maybe we should stand by it. Everyone got a cost of living increase except the board. The supervisor read from an email provided by the town clerk from 2016. “The board may decrease the salary below the published amount during the preliminary budget or the final budget providing the town clerk is not in the middle of the term.
The clerk noted this information was provided to the supervisor upon his request to substantiate a document provided by the Highway Superintendent. The clerk stated his position has been right along that when a new person comes in (including myself – a 25 year employee) why should that person get the same salary that it took me 25 year to obtain. Yet they have no experience in the job. I believe Mr. Putman is saying in this instance about the highway superintendent position. He has asked for the board to make a resolution prior to….that there should be a base amount set for incoming elected official at a certain amount. That is what he is asking for.
Council Member Kirch stated this is an elected position – elected positions tend to have a value placed on them and whoever gets elected to that position regardless of their experience gets paid that amount.
The clerk stated she is not arguing the case I am just giving the information that he wanted presented. Supervisor Selmser just wanted it presented and have a discussion. If everyone is in agreement to keep it then so be it.
The supervisor stated on page 4 of the budget there is a line item A1620.43 for the Sherman’s Buildings. $10,000.00 if we keep all the numbers the same we could move that into A1990.4 Contingency. That was a consideration. Council Member Long agreed that should be done. The contingency line item would increase to $25,000.00. The supervisor did not recommend any additional changes to the budget. The tax levy will remain the same. Council Member Glenn asked about the insurance line item. The Supervisor could not say if there would be and extra $3,000 or $5,000 in that line item. Council Member Glenn asked if the adjustment was made (lower) based on the meeting with Bill VanGorder and the discussion that the Sherman’s property was being used. The supervisor stated we have not had the final adjustment on it. The supervisor noted there will be a charge for the new plow truck being put on the road. Council Member Kirch suggested it is a small amount and the new board can make the adjustment in January.
RESOLUTION #2019-118 to accept the amended budget & adopt the Town of Caroga 2020 Budget was offered by Council Member Long at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
WHEREAS, the board held its regular monthly town board meeting with a budget work session commencing at 8:52 pm, and
WHEREAS, an adjustment was made to transfer $10,000.00 From A1620.43 Sherman’s buildings To: A1990.4 Contingent which shall have a total of $25,000.00 in it, and
WHEREAS, the tax levy will remain the same at $926,073.00 with the tax rates as presented at no change, now therefore be it
RESOLVED, that the Caroga Town Board does hereby move to adopt the budget.
Seconded by Council Member Manning
A discussion on the percentage of the increase was stated to be 2.4% by the supervisor. With the formula from the state gave the town a factor of over 3% to work with this year due to carryover.
Adopted by a roll call vote:
Supervisor Selmser - Aye
Council Member Glenn - Aye
Council Member Manning - Aye
Council Member Long - Aye
Council Member Kirch - Aye
Supervisor Selmser has a calendar of work days from Steve Jennings and Joanne Young.
RESOLUTION #2019-119 to accept the calendars of retirement reporting for the position of Steve Jennings Golf Pro and Joanne Young Bookkeeper/Budget Officer was offered by Supervisor Selmser at the regular monthly meeting of the Caroga Town Board held on Wednesday November 13, 2019 at Caroga Town hall.
Last 4 SS#
Emp. Time keeping
WHEREAS, the NYS Comptroller’s Office requires that employee’s enrolled in the retirement system to provide certain documentation, now therefore be it
RESOLVED, that the Town of Caroga hereby establishes the days worked per month for these two appointed officials and will report the following days worked to the New York State and Local Employees Retirement System based on the record of activities maintained and submitted by these officials to the clerk of this body.
Seconded by Council Member Long
Adopted by a vote of 5 Ayes: Selmser, Glenn, Manning, Long, Kirch
Council Member Long made a motion to accept the minutes of the October 9th which were marked as final. Seconded by Council Member Kirch all board members were in favor of the motion. The clerk asked if he had sent them back to her as approved. He will check on that.
Mr. Bishop asked about the beaver dam situation on his road. The board suggested he call DEC. Council Member Glenn noted the bridge under St. Hwy 10 is a state bridge.
Motion to pay the bills as presented for audit with the exception of General Fund bill # 346 in the amount of $700.00 was offered by Council Member Long and seconded by Council Member Manning. All board members were in favor of the motion.
Council Member Glenn made a motion to adjourn at 9:07 pm. Supervisor Selmser made a motion to go into executive session to deal with a personnel issue. The motion was seconded by Council Member Long. All board members were in favor of the motion.
At 9:35 pm Council Member Long made a motion to exit from the executive session. The motion was seconded by Council Member Glenn. All board members were in favor of the motion. There were no decisions or actions taken as a result of the executive session. The supervisor stated Morey Road was discussed.
At 9:36 pm Council Member Glenn made a motion to adjourn. The motion was seconded by Council Member Long. All board members were in favor of the motion.
Linda M. Gilbert, RMC, CMC
Caroga Town Clerk
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