Loading...
Cranberry Fire DepartmentJUL-27-2005 WED 11:09 AM VSR&PLLC FAX NO, 845 298 2842 P. 01 1136 Route 9 Wappingers Falls, NY 12599 Phone: B45-298-2000 Fax; 645.2998.2842 ax To: Joe Ruggiero Fax: 297-4558 Re: Cranberiy Resolution Fire Dept Memo Easement Memo VERGILIS, S PAR PARTNERS, LLP ROBERTS & From Albert P. Roberts Date: July 27, 2005 Pages: 9 Pages to Follow If you do not receive all pages, please call Karen at (845) 298-2000 (ext.11.4). Thank you. JUL-27-2005 WED 11:09 AM VSR&P LLC FAX NO. 845 298 2842 P. 02 RESOLUTION NO. 2005- RESOLUTION AUTHORIZING APPOINTMENT �1.FACTION WITH ORNEY REPRESENT THE TOWNS INTERESTS TM WETLANDS DISTURBANCE PERMIT REQUESTED BY CRANBERRY I ES At a special meeting of the Town Board of the Town of Wappinger, Dutchess County, New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on. the — day of � 2005, at 7:30 P.M. The meeting was called to order by Joseph Ruggiero, Supervisor, and upon roll being called, the following were present: PRESENT: Supervisor Joseph Ruggiero Council Members - Robert L. Valdati Vincent F. Bettina Joseph P. Paoloni. Maureen McCarthy ABSENT: The following Resolution was introduced by and seconded by WHEREAS, Cranberry Hills Associates ("Cranberry"), received Conditional Preliminary Subdivision Approval from the Town of Wappinger Planning Board on October 21, 2002; and WHEREAS, to construct the subdivision as propose& the applicant will be required to disturb both Federal Wetlands, New Yorlc State designated Wetlands and buffer areas and obtain New Yorlc State Stream Crossing Permits, which permits are issued by the New York State of Environmental Conservation and/or the Army Corps of Engineers; and O:1Wappin9er1Town Boa+d1RESOLUTION1Auth Appt Atty Represent Town.dacAUTH APPT ATTY REPRESENT TOWN 2nd DRAFT 7/25/05 JUL-27-2005 WED 11:09 AM VSR&P LLC FAX NO. 845 298 2842 P. 03 WHEREAS, Fortune Home Builders, LLC, apparently on behalf of Cranberry, has submitted an application to the New York State Department of Environmental Conservation ("NYSDEC") for such Wetlands and Stream Disturbance Permits and by letter dated July 11, 2005 NYSDEC notified Fortune Home Builders, LLC and the Town that NYSDEC considered the application complete for review; and WHEREAS, because of the numerous disturbances to both State and Federal Wetlands and State Wetland Buffers, the Town Board wishes to ensure Cranberry's compliance with applicable statutes, laws, rules and regulations regarding State and Federal Wetlands; and WHEREAS, the Law Firm of Carter, Ledyard & Milbum, LLP, 2 Wall Street, New York, New York 10005 has established and documnentedexperience with the statutes, laws, rules and regulations applicable to the issuance of Wetland and Stream Disturbance Permits and the Town Board seeks to retain said firm to represent the Town to ensure that Cranberry and/or Fortune Home Builders, LLC complies with said statutes, laws, rules and regulations; NOW, THEREFORE, BE IT RESOLVE), as follows: 1. The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. 2. Supervisor Joseph Ruggiero be, and hereby is authorized and directed to retain the firm of Carter Ledyard and Milburn, LLP, 2 Wall Street, New York, New York 10005, to represent the Town's interests in the matter of the Application of to the NYSDEC for Freshwater Wetlands Disturbance Permits, Stream Disturbance Permits, and Clean Water Act Water Quality Permits, to ensure compliance by Fortune IHlom.e Builders, LLC and/or Cranberry 0:1WappInser\Town eoard\RESOLUTIONWuth Appt Atty Represent Town.docAUTH APPT ATTY REPRESENT TOWN 2"d DRAFT 7125/05 JUL-27-2005 WED 11:10 Al VSR&P LLC FAX NO. 845 298 2842 P. 04 with applicable statutes, laws, rules and regulations applicable to designated Wetlands, Streams and Wetlands Buffers within New York State. 3 The fmn of Carter Ledyard and Milburn, LLP shall also be authorized to intervene in any application to the Anny Corp. of Engineers for any permit causing disturbance to any designated Federal Wetlands associated with said project. 4. The firm of Carter Ledyard and Milburn, LLP shall be compensated at the rate not to exceed $540.00 per hour for principals, which is the in's regular billing rate less ten percent; junior partners and associates will be billed at the finn's regular hourly rate less ten percent. Saidfirm shall also be reimbursed for any costs and disbursements it incurs in connection with said proceedings. Any requests for payments pursuant to this Resolution shall be set forth in a signed itemized voucher to be submitted to the Town Board to the Town of Wappinger for its review, audit and approval. 5. The fine of Carter Ledyard and Milburn, LLP shall also be authorized to hire any consultants as said firm recommends and deems necessary for the proper representation of the Town's interests in said proceedings; aii.y consultants to be retained shall first receive the additional approval of the Town Board upon written recommendation by Carter Ledyard and Milburn, LLP, 6. This Resolution shall take effect immediately and shall be retroactive to July 19, 2005. The foregoing was put to a vote which. resulted as :follows: JOSEPH RUGGIERO, Supervisor Voting ROBERT L. VALDATI, Councilman Voting VINCENT F. BETTINA, Councilman Voting O:lwappingatlTown eoard1RE5OLUTI0NWuth Appt Atty Represent Town.docAUTH APPT ATTY REPRESENT TOWN 2nd DRAFT 7125105 JUL-27-2005 WED 11:10 AM VSR&P LLC FAX NO 845 298 2842 P. 05 JOSEPH P. PAOLONI, Councilman Voting MAUREEN MCCARTFIY, Councilwoman Voting Dated: Wappingers Falls, New York July , 2005 Tlie Resolution is hereby duly declared adopted. JOHN C. MASTERSON, TOWN CLERK O,\Wappinger\Town Board\RESOLUTION'Auth Appt Atty Represent Town,docAUTH APPT ATTY REPRESENT TOWN 2nd DRAFT 7/25105 JUL-27-2005 WED 11:11 AM VSR&P LLC FAX NO, 845 298 2842 P. 0B MEMO TO: Joseph Ruggi ero/ Town Board Members FROM: Albert P. Roberts, Esq. Joan F. Garrett, Esq. DATE: July 25, 2005 SUBJECT: Responsibility for maintenance on easement; specifically who is responsible for cutting downtrees in easement An easement is a temporary or permanent right conferred. by a grant (written instrument) or by other means authorizing one land owner to do or maintain something on another's land. The person who is granted an easement is called. the dominant party and the person who owns the property i.s called the servient owner. Generally, an easement is created by an express grant which. is done by written agreement. When there is a written agreement creating an easement, the terms of the agreement control with regards to maintenance and repairs. Lfthere is no specific written agreement creating the easement and designating the responsibility for maintenance, then the person or entity in whose favor the easement runs has the implied authority to maintain and repair the easement but only for the authorized purposes (dominant estate — Town of Wappinger)• Therefore, the Town of Wappinger as the "owner" of an casement has the ri ht but not necessarily the obligation to maintain the easement in reasonable condition for the authorized purposes and may repair, maintain or improve the easement accordingly. The servient owner (property owner) is under no obligation to construct the means for the enjoyment of the easement or to perform the Work or bear the expense of keeping JUL-27-2005 WED 11:11 AM VSR&P LLC FAX Na 845 298 2842 P. 09 the easement in a state of repair for the authorized pupose. The servient owner has no obligation other than the passive duty of allowing the dominant owner's (Town's) right to use the property for the stated purpose. The scrvie t ocr's o �l dut is to xefiai 7—ownm unreasonabl interferin with the exe cise of the domii t owtxcrs ri ht to use the easement_ If construction and repairs are required to make the easement available for the authorized use, the dominant owner, in this case the Town, must bear the expense and the burden of perforrning the work. However, the dominant owner, herein the Town is under no duty to make improvements or repairs solely for the benefit of the servient owner. In other words, if there is a tree within an easement that has been created for the benefit of the Town, and that tree prevents the Town .from using the easement for its intended purpose, then it would be the Town's responsibility to remove the tree. However, if the tree does not affect the Town's ability to use the easement for the intended purposes, then the Town is under no duty to remove the tree for the benefit of the land owner. Example: the Town has a 20 foot drainage easement over someone's property. erty. The Town installs a drainage pipe in the easement. A willow tree grows in the casement and clogs the pipe. The Town has the right to cut down the willow tree. Conversely, a red rnaple in the easement dies and limbs start to fall. The Town has no obligation to remove the dying maple. However, if the Town maintains a drainage swail (ditch) in a Town -owned stormwater easement and the swail becomes clogged with scrub brush and debris JUL-27-2005 WED 11:12 AM VSR&P LLC FAX NO. 845 298 2842 P. 10 impeding the flow of storm. water , which, in turn, results in flooding of neighboring property, then the Town has the obligation to clean out the swail to prevent flooding. Additionally, repairs or maintenance by the Town which benefit only the property owner could be construed as a misappropriation of Town Funds which is a clear violation of the NYS Constitution. 06/24/2005 08:18 6454710905 PAGGI MARTIN D.ELBENE PAGE 01 PAGGI, MARTIN & DEL BENE u,P Consulting Engineers E Land Surveyors 5.6 Main Street Poughkeepsie, New York 12601 845-471-7898 &45-471-0905 (FAX) June 23, 2005 WA-ENC&MA►L: Town Board Town of Wappinger 20 Middlebush Road Wappingers Falls, New York 12590 Attention: Hon. Joseph Ruggiero, Supervisor Reference: Fleetwood Water II District Extension Dear Board Members: On Tuesday, June 21 e, 2005, bids were received and opened for the above referenced project By Town Clerk Chris Masterson. • Cassidy Excavating, Inc $ 118,216.00 Please be advised that the we only received the one (1) bid listed above, which is over the estimated projected construction cost listed in the Map, Plan and Report of $69,000.00. In that we only received one (1) bid. we cannot make a comparison between a number of them, therefore, we recommend that the bid submitted be rejected. We further recommend, after review of the bid, and taking into account the existing construction climate that the authorization approved by the Town Board be increased. This will need to be coordinated with Mr. Roberts office and Bond Counsel. If the Board is agreeable to this procedure, we will go ahead and draft an Amended Map, Plan and Report and submit it to the Board and Al Roberts. If you have any questions or comments, please contact me. Ve uiy yours, /0.(...) Joseph E. Paggi, Jr., P. . JEP:Iaw cc: Town Board: File . Chris Masterson Albert P. Roberts, Esq. Michael Tramper Joseph E. PaggyJr, RE. Ernst Martin, Jr., P.E., L.S. Charles R Del Rene, Jr„ P.E.