BALLSTON – The Ballston Town Board voted unanimously to set the date for public hearings on two controversial water main extensions during Tuesday’s board meeting despite a lawsuit filed by the state Department of Agriculture and Markets alleging that granting the extensions would be unlawful due to a resolution passed by the town board in 2004.
The Town Board has been considering extending the water district to the Katz Planned Unit Development District on Route 50 and a 12-lot subdivision on Goode Street since last year, voting to approve the extensions in May.
The Katz PUDD would consist of a three-story building with 23,000 square feet of retail space on the bottom floor, 20 apartments on the second floor and 20 apartments on the third floor. The project also calls for 121 multifamily units in 11 buildings and 57 single-family lots.
The director of the state Department of Agriculture and Markets sent a letter to Town Supervisor Tim Szczepaniak questioning the legality of the extensions given that both subdivisions are located within the town’s agricultural district and a resolution passed by the Town Board in 2004 limiting lateral water connections in the agricultural district.
The 2004 resolution limited connections to the water main located on Goode Street to agricultural uses and already existing non-agricultural uses within both the water and agricultural district.
Town Attorney James Walsh had advised the board that a resolution is different from a law and reflects the board’s opinion. According to Walsh, if the board chooses to pass a resolution preventing some action, they can subsequently pass a resolution allowing that action if their opinion on the matter changes.
To address the letter from the state, the developers of the projects and their attorneys appeared before the Town Board in November asking the board to go through the approval process for the extensions a second time, this time filing notices of intent with Agriculture and Markets.
In completing the process a second time, the developers’ attorneys sought to review the approval process with the town to avoid procedural irregularities that may have occurred initially and to seek comments from Agriculture and Markets and a recommendation on whether the board should grant approval to the extensions.
Agriculture and Markets did not respond to the preliminary notices of intent regarding the impact statements for the projects prior to the January Town Board meeting, which Walsh said constituted consent to proceed in the way that the town outlined it intended to in the notices.
The Town Board voted to approve the final notice of intent and agriculture impact statement for the Katz Route 50 PUDD on Jan. 10 and for the 12-lot subdivision on Feb. 14. The two separate votes were both passed by 3 to 2 with Councilman Bill Goslin, Supervisor Szczepaniak and Councilwoman Kelly Stewart voting for the measures.
Councilman Chuck Curtiss and Councilman John Antoski voted against the two resolutions, arguing that the extensions go against the town’s comprehensive plan and are not allowed based on the town’s water extension restrictions.
The Town Board voted Tuesday to schedule public hearings for the extensions on April 11, at 6 p.m. before the regular board meeting at 6:30 p.m. The resolutions to set the public hearings were passed unanimously, with Antoski and Curtiss specifying that they support holding public hearing on the measures. The board previously scheduled public hearings on the extensions for March 14, but they were cancelled due to snow.
Before the vote took place, resident Kevin Draina voiced his surprise that the board was considering setting public hearing dates on the extensions and had placed consideration of approval for the water extensions on the tentative agenda for the April 11 board meeting, given the pending lawsuit against the town.
According to a recent article in The Daily Gazette, state Agriculture Commissioner Richard Ball filed suit against the Town Board on Feb. 28 for approving the water extension to the 12-lot subdivision and seeking a permanent injunction against the action, citing the town’s restriction on lateral water connections in the agricultural district.
“I don’t see how the town can take any further actions on water line extensions until that injunction is brought to court and ruled upon. So, why would the town want to open themselves to maybe another lawsuit for disobeying or ignoring an injunction that’s been filed against them,” Draina said.
Supervisor Szczepaniak responded to Draina saying that the Town Attorney would be meeting with the Department of Agriculture and Markets on Friday to discuss the lawsuit.
“We’re still moving forward with the process, like we do with other projects. If there are any issues where the attorney gives us guidance to not move forward, where more time is needed, we will go ahead and do that,” Szczepaniak said.
“You’re still taking action tonight, which, isn’t that illegal?” Draina asked.
Szczepaniak said that the board had checked with the Town Attorney, who had advised the board that it was safe to move forward.
Before voting on the public hearing dates, Councilwoman Stewart asked if there was litigation against the Katz Route 50 PUDD, as the initial letter from Agriculture and Markets had been limited to the 12-lot subdivision. Szczepaniak informed Stewart that the state had sent a second letter regarding litigation against the Katz PUDD.
Town Attorney Walsh arrived at the meeting just after the board voted to set the public hearings and provided additional details regarding the meeting he had scheduled with the Department of Agriculture and Markets at their request.
“They wanted to have a sit-down. I think that it is probably smart for us to do. I’m very comfortable with the positioning of the town, we’re in very good shape having dotted our I’s and crossed our T’s. We’ve done everything properly,” Walsh said.
Following the meeting, Walsh said that he and the Department of Agriculture and Markets also have a follow up meeting scheduled with the judge presiding over the case on April 5. He added that he did not believe that the judge would grant a preliminary injunction on the water district extensions in this instance.
Later in the meeting Walsh informed the board of his intent to give notice and tender his resignation effective April 31, unless the board can find a replacement at an earlier date. Walsh said that he had come to the decision due to his growing workload and that he hoped to resolve some of his current business for the town before his resignation takes effect.
“I really all of the effort and the time that you put in with the Town Board. A lot of folks don’t see the behind the scenes, the time that you put in as far as the litigations and all of the dealings that you have. We appreciate all of the hard work that you’ve done, you’ve done a great job for our town,” Szczepaniak said upon receiving the news.
The town board added a resolution accepting Walsh’s resignation unanimously.