Olive
Loses Cell Suit
Masterpage,
which is seeking to construct a 142' tower at the summit
of South Mountain in West Shokan, alleged in its suit that
Olive’s town board violated the 1996 Telecommunications
Act by unreasonably delaying the processing of its application.
The proposed tower site is a ten acre parcel which was approved
years ago by the town planning board with a provision that
it was to be used for ”recreational” purposes
only and its intended conversion to a commercial site was
the foundation of the town’s position that Masterpage
would have to apply to the planning board to change its
usage designation. Masterpage refused to take this step
and, instead, filed its suit.
In his ruling, Judge Mordue highlighted the planning board’s
recommendation in February of 2002 “that Masterpage
re-apply to the Planning Board to remove the ‘recreational
use’ restriction, at which point the Planning Board
would ask the Town Board to declare the subdivision an Open
Development District. An Open Development District requires
a 50' right of way with a road maintenance agreement approved
by the Town Highway Superintendent and signed by affected
property owners. The Planning Board stated that Masterpage
would also have to provide proof of right of way over crossed
properties.”
Since the access road is a steep dirt trail impassable for
a large portion of the year and the right-of-way was being
contested by a neighbor whose land it crossed, the company
was understandably hesitant to pursue that course of action.
However, physical access to the site was deemed unimportant
to the issue by Judge Mordue, who pointed out that, at a
hearing in January 2002, “Masterpage’s attorney
stated that its proposed use would
not require accessibility for emergency service vehicles
because the proposed facility would be monitored from a
remote location, would not be staffed, and that someone
would be there less than once a month to check the equipment.”
Judge Mordue also noted that the planning board had originally
declared that
the matter was “out of (its) hands” based upon
Masterpage’s assurance that its “use of the
site would not be significantly different from the current
use” and that it would sign a road management agreement.
A letter from the DEC stating that the visual impact of
the mountaintop
tower was “not significant” was found acceptable
for the site’s environmental viability in the ruling.
This had been one of the original town board concerns since
the subdivision is bordered by land owned by the DEC and
their Regional Director of Foresters, Frederick J. Gerty,
had pointed out that DEC land was open to the public at
all times of day and night.
”(U)nlike private property where entry may be limited
and supervised,” Gerty wrote concerning Masterpage’s
request for a set-back waiver in February
2001, such a site seems “far more in need of such
protection for the visiting public.” Despite this
and other reservations expressed in the letter, Masterpage
was able to acquire the waiver from DEC Natural Resources
Supervisor William Runge following their visit to his office
shortly after
Gerty’s retirement in early 2001.
The question of legal access was dismissed in the judge’s
ruling with the
following comments concerning the position of the landowners,
Sam and Delia Adams, whose property is crossed by the access
road: “Although the Adams’ repeatedly claimed
Masterpage had no right of way through their property, they
did not submit any evidence in support of that claim to
the Town Board. Likewise, the Town continues to maintain
there is an issue of fact as to whether Masterpage has legal
access to the site, but has not cited any evidence in support
of that assertion.”
Reached on vacation in another state, Delia Adams seemed
mystified as to how Masterpage could have won their case.
She said she would consult with town officials regarding
the decision when she returned to West Shokan.
Robert D. Gaudioso, an attorney for Snyder & Snyder,
LLP of Tarrytown, N.Y., the firm handling another application
for a tower in Boiceville filed by the Nextel corporation,
said that he was already studying the judge’s decision
but that it was “too early in the process” to
consider the feasibilities ahead.
”Nextel is certainly looking at (the Mordue ruling)
but no decisions have
been made at this point,” Gaudioso said. “Whether
the town appeals and whether the tower is actually built
are certainly things that have to be taken into consideration.”
The question of an appeal is yet to be addressed by Olive’s
town board although the topic was raised at this month’s
public meeting.
”My reaction is that there’s a zoning violation,”
said councilwoman Helen
Chase. “There are stated ‘different use’
issues that should have been cleared up prior to the permits
being given to the applicant and to have the judge say to
just let them build the tower isn’t right because
other people who have zoning violations or who have declared
a ‘different use’ for a parcel have to go through
having their zoning violations - and whatever else
needs to be accomplished - tended to before permits are
given. Everybody else has to do this. It is not a good precedent
for the judge to have declared that the tower can go forward.
I personally hope that this proceeds further in the judicial
arena. We all know that we need to have a cell tower in
the area but to have this go around the ordinance that we
have and to ignore the zoning law that we have is, I think,
not correct... We have another applicant that’s going
through the correct process but this one is flouting the
zoning ordinance. That’s my opinion.”
”It’s a good opinion,” Supervisor Leifeld
agreed.
Judge Mordue’s decision, based on what he termed Olive’s
“persistent and
repetitive requests regarding issues previously resolved”
would appear, at least at this stage, to represent issues
resolved to Masterpage’s satisfaction rather than
in evidence considered satisfactory to officials of the
Town of Olive. An appeal, again in early reactions as the
verdict is studied, is not unthinkable.
Hazy
Budget Forecast
Town supervisor
Brendt Leifeld was joined by Bruce LaMonda, Linda Burkhardt
and Henry Rank of the town board; Olive highway department
supervisor Jim Fugel, Shandaken highway department supervisor
Richard Merwin and Ulster County highway department section
supervisor, Joseph Nalepa; executive director of the Ulster
County Soil and Water Conservation District, Gary Capella;
Ulster County district 3 legislator, Rob Parete; New York
State Department of Environmental Conservation habitat manager,
Jack Isaacs; Dan Ahouse of Congressman Hinchey's office;
Jason Shea of the U.S. Army Corps of Engineers and a representative
of New York City's Department of Environmental Protection
as the group set out to assess conditions along the Bushkill
and Moonhaw Creeks and Maltby Hallow Brook in the wake of
this spring's flooding in West Shokan and surrounding regions.
The trek was the eventual response to a petition initiated
by residents of Moonhaw Road in West Shokan requesting federal
attention to overflow problems in the waterways of the area
preceding and resulting from the early April floods in the
region.
"I got hold of the Army Corps of Engineers, Hinchey's
office, the county and
everybody else," Leifeld explained. "They're going
to give us a report on cleaning out the brooks here. The
state was here, too, Jack Isaacs- who gives out permits
if you want to do work on the streams- and we've got some
firm commitments. We want to take out all those big trees
from one bridge to the other (on the Bushkill) and there's
other stuff up in the valley there
that's all private property but Isaacs said that if they
fill out the permit (applications), he'd be inclined to
grant them- which is quite a commitment because it's usually
a big deal."
Some areas of the waterway would be cleared out and others
fortified, according to the early calculations, in hopes
of reducing the impact of serial flooding events along the
streams and creeks.
"They're not going to dredge this thing out like they
did 15, 20 years ago. They don't believe in that anymore,"
Leifeld added before alluding to the recent flooding problems
in the Gulf states by noting that the Army Corps of Engineers
(USACE) was, of course, "busy elsewhere."
"Anyway, I asked this guy from the USACE (Shea) what
they were going to do now and he said he was going back
to write up a report," Leifeld said. "'I'll give
you a list of programs that I think would fit into this
and then you go from there' he said. This is long range
stuff. The county kind of surprised me but it's their road
(along Moonhaw), so they want to protect it."
Dan Ahouse of Congressman Maurice Hinchey's office had another
dimension to add to the clean-up picture, noting that, when
Leifeld contacted him, his office had already been working
with the USACE "subsequent to the flooding in April-
on issues pertaining to the Esopus Creek corridor in other
parts of the county."
Ahouse observed that Hinchey's office "brought together
numerous stakeholders who are in a position to affect the
situation...on the Bushkill" for the meeting based
on Olive's correspondence with the USACE because "(t)he
issues that the town was interested in with regard to the
damage and the mitigation work were consistent with things
that the Army Corps was looking at in other parts of the
town and other parts of the county. So, it made sense for
them to come out..."
In the background of these actions, Ahouse indicated "a
comprehensive watershed management plan which has been authorized
by language that Congressman Hinchey added to a piece of
federal legislation." This fresh authorization "came
in response to the April flooding but it should not be misconstrued
as a 'quick fix'," he pointed out. In this legislation,
the USACE has been given authority to engage in what they
call a Watershed Management Study of the Esopus Creek Watershed,
including the Bushkill and Maltby Hallow systems, as part
of a "comprehensive analysis of the creek and its tributaries."
"There's several areas that they would be looking at-
including issues like water quality, stream bank protection,
recreation, the flow and engineering of the creek,"
Ahouse said. "The Corps has some ideas about how you
could better effect the flow of the creeks so that you mitigate
against future erosion of stream banks... It encompasses
much more than flood control. It's a very comprehensive
approach...There are programs, for instance, within the
USACE Natural Resources Conservation Service and other,
state programs that address the more immediate needs in
our creeks- some of which have already been put into play
while others, pending funding, are to be initiated. The
context of the Corps' visit was to see, first of all, if
there was justification for immediate action on their part."
There's more that needs to happen before USACE involvement-
cost-sharing issues, agency assignments and other such concerns-
as Ahouse observed. But he emphasized that he was encouraged
by the degree of cooperation amongst stakeholders at the
federal, state, county and local levels as well as New York
City authorities. He spoke of "very productive conversations
about who can do what and when- which he said was "very
refreshing" and "perhaps even unprecedented."
"We've seen projects already completed. We've seen
projects moving forward in engineering and design. We've
seen agencies willing to step up," he beamed.
There appears to be a prevailing optimism that the water
system in the New York City watershed will emerge in the
foreseeable future as a stabilized and unified entity.
Large
Parcel Hangover
School taxes? The assemblyman has a bill for reform which
will convert the funding system from property tax to income
tax. "People are getting taxed out of their homes,"
Keyser said. HR8069 is still in committee and looking for
a sponsor on the Senate side.
Restructuring health care in New York? There's a commission
looking into the problem and its purpose is to cut back
on health care, Medicaid, close some hospitals and nursing
homes around the state and "eliminate" a number
of beds but "restructure" is a safer term. There's
a regional committee that's only met a couple of times so
far and their recommendations aren't scheduled to emerge
until the end of 2006. "We want to make sure that Ulster
County and the Hudson Valley are protected and health needs
are met around here," Bambrick offered.
HAVA (the Help America Vote Act to convert the nation to
electronic voting that was ushered into being after presidential
election of 2000)? "At the end of the session this
year, there was a deal between the Senate, Assembly and
the Governor that enacted almost all the necessary legislation,"
Bambrick explained. "They got the federal money and
kind of left the voting machines up in the air (for counties
to choose from among the models certified. The State Board
of Elections will come out with the guidelines before the
end of the year."
What else would you like to talk about?
Cindy Johansen, Republican candidate for Olive supervisor,
brought up the
topic of a gasoline tax rollback, mentioning that prices
had spiked on a rumor of severe shortage, going up over
a dollar in 24 hours. "We feel a rollback would be
counterproductive," Bambrick responded. "You might
save a few cents at the pump, assuming it was passed down
to consumers, but lower prices could cause people to take
unnecessary trips and use more gas. If you lower demand,
prices will go down."
Heating oil? Councilwoman Linda Burkhardt noted that when
local suppliers
announced their "prepay" prices this year, there
were 75 people on line the next morning. "I'll bet
a lot of those people didn't go to the grocery store that
week," she said.
Inevitably, as more people drifted in for the regular meeting,
the large parcel questions rolled in with them: "Why
did Cahill support taking the Ashokan Reservoir out of our
tax base?"
"Mr.Cahill supported that legislation because when
the idea was first brought to him, the NYS Tax Assessors
Association was in favor of it," Keyser answered. "They
had been asking for years for a tool that would help them
with problems that arose in the area of assessing large
parcels. Kevin thought it was fair at the time and he still
thinks it was the right thing to do."
"Now we have communities battling each other over this
legislation," said an audience member. "You cannot
take the tax base from a community and divide it amongst
other communities. The Ashokan Reservoir is in the Town
of Olive. It always has been and the land belonged to Olive
taxpayers before the reservoir came into being. It is not
in Woodstock. It's not in Shandaken. It's not in Marlborough.
It's not in Highland. It's in Olive."
"I respect your opinion," Keyser said. "I'm
not going to tell you Kevin agrees with you because he doesn't."
"Personally, he is not my representative," a slightly
louder voice said. "You see nobody showed up for this
except people that have to be here for the town meeting."
"That's okay," said Keyser unflinchingly. "Our
purpose in coming here tonight is to treat Olive like we
treat every other community in our district."
"Well, we have not been treated like every other community,"
came from one side of the room and other comments began
to flow from other corners. Some addressed the disabled
economy that resulted from the reservoir's arrival, others
referred directly to the assemblyman.
"Some of the towns that benefit from that law were
already rich towns," said
a voice from the back. "Most of the people around here
make very low salaries compared to the rest of Ulster County.
Does he know that? Does he care?"
"In answer to you question, yes," said Keyser.
"Kevin is sympathetic to anyone who is suffering because
of a tax increase."
Councilman Bruce LaMonda charged that a loophole was being
used in a law intended to stabilize taxes to "equalize"
them.
"I'm sure Kevin is an intelligent man," LaMonda
said. "He must realize that
the Ashokan Reservoir is the most stable taxed entity in
Ulster County. The law's intent is to stabilize taxes so
people will know from year to year what their taxes will
be. Using that as an 'equalizer' certainly violates its
intent."
"I would have to disagree with you in characterizing
(Cahill's) vote on the large parcel as having anything to
do with how many people in the town would vote for him or
how much money they would give because that's absolutely
not true," Keyser countered a woman who said she came
with a hope the assemblyman had considered the law "more
thoughtfully" and sent aides to mend fences. Regardless
of its veracity, the more discourteous remark in the exchange
postured the aides' presence as an "affront, in some
ways, to a lot
of people in Olive who don't think that Kevin Cahill has
been their representative."
Numerous angles of the large parcel controversy were raked
over, a number of which the aides were unfamiliar with and
said they would research- the provisions in the sponsor's
memo for a veto vote from any affected community which disappeared
from the law's language, for example. "It's very common
for legislation to be altered as it goes through committee,"
Keyser pointed out. Bambrick added that a bill has to keep
its form for 3 days prior to the vote.
All in all, the assemblyman's aides weathered the storm
with an unflappable grace and scarcely a blink of turmoil.
At the edges of that calm, however, it was instructive to
see how close to the surface the resentment remains among
Olive citizens who felt as if they were being penalized
for having an abundance of water in place of a center of
commerce. "New York City doesn't buy<i/> water
from Olive," said one man still fuming after the meeting.
"It takes water from land it owns in Olive. Why should
the rest of us get hit with a sales tax, then? That's what
it feels like!"
One small, sweet-faced woman summed up her feelings with
the slightest edge in her voice; "Anything Kevin Cahill
proposes from now on will be extremely suspect to me. I'll
look for layers upon layers of hidden motive and agenda
because I don't trust him. You can take that back with you."
A
Jar Of Olives ...And
The Winners Are
Accepting the
honor of being “The best little town by a dam site,”
I would like to thank:
* Steve Heller and Martha Frankel for combining art with
functional furniture. The result was simply “Fabulous!”
· Kevin Scanlon for the mini-mall across from the
high school that now houses the Onteora Teachers’
Association Office sandwiched (excuse the pun) between Subway
and the Hong Kong Chinese Restaurant.
· Joanne Stropoli for being the unofficial ambassador
of Samsonville to the rest of the free world. Joanne boasts
her town has three streetlights and one general store. What
makes it so special, she adds, are the friendly people who
inhabit this bucolic paradise with mountain views in all
directions.
· Mr. Warnecke who lives at the edge of Olive and
has gardened and manicured the gateway to Shokan if you
come the back way around Temple’s Pond. By the way,
you know a local if they call it Kenozia Lake.
· Tom Planz for serving as Fire Chief for serving
Olive as fireman for over thirty years and chief for sixteen
years until Carl Swenson III, a fireman for twenty-six year,
took over two years ago.
· Donna Van Kleeck for organizing the Christmas party
where Santa, Mr. Kothe, arrives on a fire truck with sirens
blasting with his sack full of toys for sixty or more children.
· Ternice Winne and Jeannie Bachor for taking on
the monumental task of coordinating Olive Day.
· The Tongore Flower Club that plants flower beds
around town and donates the wreath at Memorial Day.
· Ruth Ann Muller and Rosie Burgher for being the
librarians who actually encourage conversation at the friendly
Olive Free Library.
· Hoppy Quick and Jimmy Hyde for producing the only
bears who don’t get into garbage cans.
· Gary Boice who chose living and working in Olive
and quit the rat race of urban technology.
· John and Barbara Parete who have been host and
hostess to every sports team pizza party. Most people can
remember a time someone when they attended a shower, a christening,
a wedding, or a meeting there in the back room. One person
I know even catered her divorce celebration.
· Olive Matters Committee, the town board, and the
many citizens who wrote letters, spoke at Board of Education
meetings, and addressed the Ulster County Legislature NOT
to enact the Large Parcel Bill.
Like the recipients of the Emmy, I find I have run out of
time to thank all the deserving people for their service
to each other. The more I think about it, I realize that
Olive may be a place on the map, but it is the people in
it that make it the special place that it is. Because of
these people and the many more I will acknowledge in the
future, the winner is…Olive!
