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1981-05-01 SPM323 A Special Meeting of the Town Board of the Town of Wappinger was held on May 1st, 1981, at Town Hall, Mill Street, Village of Wappingers Falls, Dutchess County, New York. Notice of this meeting was sent to all Board Members on April 29th, 1981, calling said meeting for May 1st, 1981 at 4:00 P.M. at Town Hall, Mill Street, Wappingers Falls, New York. Notices were also sent to all News Media on this date, and another notice was posted on the Town Clerk's Bulletin Board. Supervisor Diehl opened the meeting at 4:14 P.M. Present: Louis Diehl, Supervisor Nicholas Johnson, Councilman Bernice Mills, Councilwoman Janet Reilly, Councilwoman Frank Versace, Councilman Elaine H. Snowden, Town Clerk Others Present: Jon Holden Adams, Attorney Mr. Diehl read the following Informational: Update, which hadv, previously beensent to all, Board Members: Memo To: Town Clerk, Town Board Members From: Louis Diehl Date: May 1, 1981 Re: Informational Update On Thursday April 30, 1981, Mr. Lafko, Mr. Fulton and a gentleman, who when I asked represented himself as from the B.C.I., I did not request identification and stated; certainly, you can see approved map of Klein -Alexander sub -division, the Town and my office has nothing to hide. B.C.I. representative visited my office and in answer to a question I responded, Mr. Alexander had advised he had given permission for the map to be signed in his absence. Mr.,Alexander also came to my office prior to this visit (sometime approximately 830 A.M. ,and 9:00 A.M. April 30, 1981) and officially signed:map in my presence. I requested evidence in writing from Mr. Alexander, supporting that he gave permission for map to be signed + originally, at which time Mr. Alexander was not available. M. Alexander agreed he would provide this statement. Later this date in P.M. hours I received ,telephone calls from news media with question; why B.C.I. wasims?tigating a signed map. I refused answer other than. ,a "NO CU Lent"; many times. My reason being someone was attempting todistort the story and someone was attempting to discredit my Office and the Town of Wappinger. The news media refused to give source of who called them and what was said. This office has always provided whatever information ,'kre- quested of it from all individuals and press. I am appalled at this .apparent attempt by individuals to plant a seed of doubt. when this office or Town was visited 3y a B.C.I. officer in S regard to a signed map. The map (sub -division) so the Town of Wappinger and and has been and is in my concerned, is an approved map by Dutchess County Health Department possession for many weeks. Knowing well the individuals concerned, I specifically called a Special Meeting of the Town Board to eliminate possible questions. The meeting is to legally and officially instruct this Supervisor to sign, and file said map with. Dutchess County. In conclusion and in regard to an attempt by individual to discredit the Town and/or others thru mews media, this act in my opinion was and is a dirty underhanded trick. To all concerned don't use this office to expedite your individual problem with other individuals. s/ Lou Diehl After reading this memo, Mr. Diehl stated that this was his opinion of an incident which had occurred yesterday. He then continued, saying that the Board had before them a subdivision map from Klein and Alexanderwand ai agreement for their consid- eration at this time. He asked tle Attorney to explain this agreement and its purpose. Mr. Adams said it had come to his attention after the Supreme Court rejected a petition for review of the subdivision plat in question, that the owners of the subdivision wish to go forward and sell their.* -, which, in his opinion, would be their r(1141,10P since there is no legal impediment to the filing of the map. However, some concern was raised by certain individuals as to whether or not the lot owners might face a problem should a court, upon appellate review, if the review ever takes place, require that water provided to the individual home in that sub- division, be through the central by the approved water wells. He by an agreement between the Town the applicants agree that in' the community system rather than felt this could be resolved and the • applicants, whereby event the court appellate review.determine that the individual homes be served by community water system, rather than .by individual wells, they would take all steps, financial and otherwise to see that the laterals and distribution mains are installed. He further indicated that it would be for the best interest of the Town to have an agreement whereby those individuals would also hold harmless and indemnify the Town against any claims, however 2v kw invalid, which might be made at a subsequent time. The appli- cants have agreed to do this and the agreement was reviewed by the attorney's office and the applicants, and in his opinion, it should be approved by the entire Board. The Town Clerk read the following Agreement *** Agreement made this 27th day of April, 1981 between James Klein and David Alexander, as applicants and the Town of Wappinger. WHEREAS Klein and Alexander have made application to the Planning Board of the Town of Wappinger for approval of a seven lot subdivision situated on All Angels Hill Road, and WHEREAS on the 18th day of August, 1980, final approval was given to said subdivision by said Planning.Board of the Town of Wappinger, and WHEREAS subsequent thereto an Article 78 proceeding was instituted by Fred J. Lafko to review the validity of the approval given by the Planning Board of the Town of Wappinger as well as the Dutchess County Department of Health, said Article 78 proceeding contesting the validity of approval given to individual water systems, it being the contention of said Fred J. Lafko that the presence of water resources from his water company (Atlas Water Company) mandated, under applicable regulations, that all water within the subdivision be obtained from the Atlas Water Company, and WHEREAS subsequent thereto, on or about the 26th day of February 1981, an order was made by the Supreme Court of Dutchess County, (Hon. Theodore H. Dachenhausen, J.S.C.) dismissing the petition of said Fred J. Lafko, and WHEREAS a notice of appeal was filed by said Fred J. Lafko on or about the 2nd day of April, 1981, and WHEREAS Klein and Alexander desire to proceed with further development and sale of lots within the subdivision notwith- standing the filing of said notice of appeal, and WHEREAS the Town of Wappinger wishes to provide .adequate, protection for subsequent lot owners within said subdivision in the event that the appeal of said decision should be modified or reversed, NOW, THEREFORE, it is agreed by and between the parties kof hereto as follows: 1. In consideration of the execution of the subdivision plat notwithstanding the filing of the notice of appeal, Klein and Alexander covenant and agree that they will *(a) within six months of a final court order, install any water mains and house laterals and other appurtenances or equipment which would be necessary in the event that a court of appellate review determines that the homes within the aforementioned subdivision are to be served by the Atlas Water Company *and give title of the said improvements to the Town, (b) that they will fully apprise all lot purchasers of the circumstances surrounding the present litigation, *by inserting language to such effect in all sales contracts and (c) that they will indemnify the Town of Wappinger, its officers and employees from any and all liability, loss or damage it may suffer as a result of claims, demands, costs or judgments against it arising out of the execution of the subdivi- sion plat and will reimburse the Town of Wappinger for any necessary expenses, attorneys fees or costs incurred in the 32 - u:i � :k defense of any claims arising out of its delivery to Klein and Alexander of said subdivision plat duly executed by its Planning Board Chairman, except that such indemnification will not in any way include any aspect of the current litigation which resulted in the aforesaid Order of Justice Dachenhausen for which the Notice of Appeal has been filed as aforesaid. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written. s/ James Klein s/ David Alexander ***(as amended by action of the Town Board) Mr. Lafko was recognized by the Chair and asked who drafted the document; Mr. Adams responded that he did. Mr. Lafko then asked if the bond had been set and Mr. Diehl responded that, in this case, he did not know if the Town was requiring a bond. He then asked the attorney if the Town was waiving a bond and if he had recommended this; Mr. Adams replied that this would be the option of the Town Board. Mr. Lafko insisted this was the law, they could not act on the agreement until the bond was set. He then wanted to correct the document to read Fred J. Lafko DBA Atlas Water -Company who instituted the law suit. He claimed the Town was modifying litigation that was in progress, and the Town Board was taking the full responsibility off the Planning Board for the litigation. Mr. Adams retorted that the Planning Board had no obligation or liability to begin with. Mr. Fulton, being recognized by the Chair, referred to the memo Mr. Diehl read at the beginning of the meeting, and asked Mr. Diehl if he identified the person who came to his office as the State Police or B.C.I. Mr. Diehl responded that he under- stood this man saying he was from the B.C.I., Mr. Lafko corrected him saying he was from the State Police and Mr. Diehl accepted this correction. Mr. Fulton continued and asked if he identified himself after he looked at the map or before. Mr. Diehl did not recall whether it was before or after he looked at the map but felt it was immaterial since he or anyone else was welcome to view any public record in his office or any Town office. He then asked why the map was in Mr. Diehl's office and was told it was given to him for safe keeping. Mr. Fulton then asked if the map was signed prior to Mr. Alexander's presence in Mr. 41.0 Diehl's office and Mr. Diehl referred him to the contents of his memo which stated that Mr. Alexander signed the map in Mr. Diehl's presence. Mr. Fulton continued questioning Mr. Diehl on this matter and claimed Mr. Diehl did not really know who this person was, as far as he was concerned everything was done legally, there was nothing to hide. Mr. Lafko then asked that Mr. Alexander's letter be read and Mr. Diehl consented. The following letter was read: Richard Barger, P.E. New Hackensack Road Wappingers Falls, N.Y. 12590 January 9, 1980 I David Alexander, authorize Dick Barger or Ken Russ to sign my name on Klein & Alexander subdivision map on All Angels Hill Road, Town of Wappinger. s/ David Alexander Mr. Johnson spoke and said, in his opinion, that this contract, in no way, does anything but indemnify the Town should the appeal instituted by Atlas Water Company be reversed by a higher court. Under ordinary circumstances, this matter would not have come to the Town Board, but these are extraordinary circumstances. He had no problem with the agreement, however, if Mr. Adams felt that the name of Fred Lafko should be changed to Atlas Water Company, he would have no objection to changing it. MR. JOHNSON moved that the Supervisor be authorized to sign the agreement between James Klein and David Alexander, as applicants, and the Town of Wappinger. Seconded by Mrs. Mills (with amendments that follow) Roll Call Vote: 4 Ayes Mr. Versace ---Nay At this time the motion was made and seconded, however prior to the roll call vote, a lengthy discussion ensued. Mrs. Reilly asked for an addition under 1 (b) which stated "that they will fully apprise all lot purchasers of the circumstances surrounding the present litigation", which would spell it out very clearly to these purchasers that there was litigation, not verbally, but in writing. It was pointed out that this was so stated on the filed map, but Mrs. Reilly insisted that this 3 fa tc0 •'9•,2'' be spelled out in the agreement, as it was her experience that noone looks at maps. The map was displayed and while the two attorneys were viewing,it, Mr. Lafko alsolooked at it and made comments that there could be no changes or erasures once the Chairman of the Planning Board had 'signed it. Mr. Adams suggested that it be noted on the contracts that this was subject to all notes and conditions as shown on the subdivision map, but Mrs. Reilly preferred that it be defined in the contract. It was then agreed by the Board and the attorneys to add the words "by inserting language to such effect in all sales contracts" under 1 (b) of the agreement after the words) "that tthey mil/ fully apprise all lot purchasers of the circumstances surrounding the present litigation,(by inserting language to such effect in all sales contracts). Mr. Versace wished to add his comments to this discussion; he had two concerngwith the agreement; the first was that there was no indication of a time limit on the laterals being installed if the court decision was reversed and Atlas Water Company was given the right to provide water service to this subdivision. Suppose this decision is not rendered for a year or more, whose responsibility is it to install the water lines. Mr. Adams replied that it was up to the developer to do this work, and time had nothing to do with it; once a final court order is issued, there is no time table. Mr. Versace differed with this and felt the Town needed protection and a time should be specified. His second concern was that the agreement did not state that when the lines were installed, they would be turned over to the Town. Discussion followed between the attorneys and Mr. Adams on the time limit and the fact that this only applied if the company won the appeal. Mr. Versace felt the agreement was very confusing and the attorneys should get to- gether and reword it, then the Town Board should review it and consider action. He then stated that he would like to exercise the policy of the Town whereby correspondence must be brought in ten days prior to a meeting to give the Board time to review it before they took any action. on it. Mr. Reed, attorney for the applicant repeated that this was only k.0 • f (3,413 happening due to litigation by Mr. Lafko and this agreement was needed only if he was successful in his appeal. These lots would be connected to individual wells and would not have toconnect to any community water if this litigation was not pending. The only thing that would compel them to do this would be a successful appeal, as he explained previously, and if this should happen in a year, or even five years, the developer would do what they have to do. Mr. Versace reiterated that this was.not the case, and they were here to consider this agreement, however, he would still stick to the policy of the 10days notice prior to the meeting. Mr. Lafko wished to speak again and announced that he was standing before them as the counsel to the Atlas Water Company. Mr. Diehl informed him that Mr. Versace still had the floor and was speaking to the attorney. Mr. Versace continued and said again that the agreement was confusing, let the attorneys review it, there was a regular Town Board meeting coming up and it could be taken into consideration at that time. He again asked the Board to honor the policy they had established on the 10 days prior notice of correspondence before action was considered. Mr. KlecLn was then recognized by the Chair and commented that this situation had gotten out of hand, and he was sure all of them would agree. He pointed out that the mains of the Atlas Water Company were about 11/2 to 2 miles away from the subdivision; they had agreed initially not to press this matter after they had received final approval until the litigation was determined. It has been a financial hardship to them, since approval was timoo given last fall and they have been unable to continue. The pipes were put in :and the roads were put in'. The court decision was rendered back in February, there was no appeal until the very last minute, which he said was Mr. Lafko's normal tactics. He expected that Mr. Lafko would continue this way and wait the full length of time before each appeal; in the meantime he has expended time and money which he could not afford. The Town knows him,he continued, he's. been .developing for the last twenty- five or more years and he has never given the Town a hard time, but he has come to the point where he cannot afford any more delays, and should that happen, he would have to go to the courts with an Article 78 to protect himself. One man cannot control the Town of Wappinger; he's not an elected official, he has no jurisdiction in the Town or a not exclusive franchise. If the Town sees fit to give him reign to do this, we are in a sad state of affairs. It is unbelievable, he continued, that one man can harass a Town like this. Mr. Lafko then asked for the courtesy of a rebuttal to these statements, and said he was wearing two hats ----one as counsel to Atlas Water Company, and himself. Mr. Klein's success in the Town of Wappinger, has been in the entire area between Widmer Road and the Atlas Waterworks in Quiet Acres. He continued along these lines at which point Mr. Diehl interrupted him to ask that he stay on the subject of the meeting. He was practicing law under Fred J. Lafko DBA Atlas Water Company, he stated for the record. At the D.E.C. hearings, he claimed, the subdivision in question, was included in the area serviced by Atlas Water Company, and claimed that Mr. Klein knew this, but refused to tie in because his engineer told him to drill the wells. Mr. Lafko continued despite Mr. Diehl's request for him to stick to this subject and the Board finally took up the changes to the agreement as suggested by Mr. Versace which amounted to phrases being added at designated places in order to clearly define certain items. Mr. Johnson had made the motion to approve the agreement and had no objection to .adding the following: under 1 (a) "within six months of a final court order and at the end of 1 (a) after the words Atlas Water Company, add the words, "and give title of)the said improvements to the Town". Mrs. Mills also accepted these amendments to her. second of the motion. Mr. Adams said these amendments would be subject to the addition of these words in the contracts, and subject to the applicants initialing same. Mr. Versace had one question to ask Mr. Lafko and asked for a very short answer. He asked Mr. Lafko when he intended to provide service to the Klein and Alexander Subdivision. Mr. Lafko stated that Mr. Aleawnder requested this in June of 1979; he was given the answer, the contract was drawn and Mr. Klein refused to sign it. Mr. Diehl then asked for a roll call vote on the agreement which resulted in 4 Ayes, Mr. Versace voting Nay. He clarified his vote by stating the reasons he had previously brought up --- he did not agree with the wording of the agreement, he had requested that the attorneys review it again, and he would like the Board to honor the policy of the 10days prior receipt of matters before a meeting. He did not disagree with the agreement for what it was intended, but felt they should review it further. Mr. Diehl then asked if the Board had any other business to discuss. Mr. Versace then brought up the subject of the expiration of Mrs. Schmalz's term on the Recreation Commission which happened to be this day. A recommendation had been received from the Chairman of the Commission to reappoint her and he felt the Board should act on this matter. The following resolution was offered by COUNCILMAN VERSACE who moved its adoption: RESOLVED, that Mary Schmalz be and she is hereby appointed to fill the vacancy on the Recreation Commission of the Town of Wappinger which has occurred by reason of the expiration of her term, and it is further RESOLVED, that the said Mary Schmalz is hereby appointed to the said Recreation Commission for a term which shall expire May 1st, 1986. Seconded by: Mrs. Mills Roll Call Vote: Supervisor Diehl Aye Councilman Johnson Nay Councilwoman Mills Aye Councilwoman Reilly Nay Councilman Versace Aye Resolution Duly Adopted 36 q Mr. Diehl had submitted a memo on informal bids that had been received for a chain link fence at Well ##5 at the Hilltop Water Plant. The fencing was needed due to vandalism and Mr. Diehl asked that the Board consider action on awarding this bid at today's meeting. The bids were as follows: Marshall Fence Company A-1 Fence Company William Mackey Fence Company $ 1,050.73 1,261.00 1,840.00 Mr. Diehl recommended that the bid be awarded to Marshall Fence Company, low bidder in the amount of $1,050.73. MR. VERSACE moved that the bid for fencing Well ##5 at the Hilltop Water Plant be awarded to Marshall Fence Company in the amount of $1,050.73. Seconded by Mrs. Reilly Motion Unanimously Carried Mr. Versace commented, along with his motion, that he was waiving the 10 day prior notice of correspondence, only be- cause he felt the fencing was needed to protect --the Welland should be installed as soon as passIble. Mrs. Mills reported that she had met with. Mr. Caccio from Camo Pollution Control and Mr. Tremper on Wednesday, at which time they discussed a letter they had received from Mr. Napoli, Public Health Engineer. This letter, she explained, was an inspection tour of the sewer plants, on paper, which had been made by Mr. Napoli and Mr. Tremper. The plants were not in as bad shape as he had addressed them, some of the items had already been taken care of. Several months ago Mr. Ryan, member of the Conservation Advisory Council had requested that the Town conduct their own testing programs for all the Town water systems, to determine the content of organic and inorganic substances present in the water. He distributed pamphlets on the subject and referred to the Priority Toxic Polluting List under the Clean Waters Act and asked that the Town use this as a guidelines. This matter was referred to the Water and Sewer Committee for review and Mrs. Mills had been working on it. She had contacted Mr. 1! kw 3 3`3 Caccio from Camo Pollution Control who suggested that she contact their laboratory director, John Dulligan. She did this and had a report to submit to the Board for their consideration. He informed her that if the Town did all the priority toxic polluting testing and took a sample from each well (13), the cost would be between $1,000 and $1,300 to do each well. An alternate would be to check the system and take a sample from each of the five systems. Mr. Dulligan felt there were a lot of toxic pollutants to look for, but unless we had a problem, he did not feel they had to look for each one. A less expensive but still thorough method would be to look for hydrogenate organic compound (there are 29 of them) and if this produced affirmative results, then they would have to take it from there and consider action. Pesticide testing was now mandated every three years and this was done in 1979; she did not have the results of that testing but would pursue it. The cost of testing each system would cost between $500 and $600 and this would be much cheaper than the first testing. This price was quoted per sample, but this would satisfy the EPA; they could also include samples from Wappinger Creek and Sprout Creek at the same price. Mrs. Mills recommended that they address the situation to determine if we do have a problem. Mr. Diehl had a final item and that was the introduction of a letter from Mr. Adams, dated April 28th, 1981, enclosing a resolution for Central Wappinger Water Improvement Area relative to the additional well. The Board now knows about it and can take action at the next meeting. MRS. REILLY moved to close the Special Meeting, seconded by Mrs. Mills and carried. The Meeting closed at 5:11 P.M. Spl. Mtg. 5/1/81 Elaine H. Snowden Town Clerk