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2003-02-10 RGMMonday, February 10, 2003 7:30pm Wappinger Town Hall AGENDA Call to Order Roll Call, Salute to the Flag Suspension of Rules for Public Comment on Agenda Items Discussions: ■ Redistricting — Phil Chonigman ■ Shared Driveway — Gigliotti Memo ■ Shed Amnesty Law Proposal Resolutions: 2003-49 Resolution Awarding Highway Security Contract 2003-51 Resolution Authorizing Escrow Refund to Modu-Craft 2003-52 Resolution Authorizing 2nd Annual Sports Museum Road Race 2003-53 Resolution Authorizing Supervisor to Sign Dial a Ride Contract 2003-54 Authorizing Highway to Go Out to Bid for Various Items 2003-55 Resolution Awarding Contract to GPS Geo Political Strategies 2003-56 Introduce Local Law and Set Public Hearing for Tax Exemptions for Disabled Veterans 2003-57 Introduce Local Law and Set Public Hearing for Tax Exemptions for Fire Fighters 2003-58 Introduce Local Law and Set Public Hearing for Required Street Frontage and Phase U Preparation of Preliminary Plat and Construction Plans 2003-59 Introducing Local Law and Setting Public Hearing for Senior Citizen Tax Exemptions Executive Session a LGB Presentation ■ Fellenzer Domber Wells — Opinion of Counsel Highway Personnel Issue Resolutions: 2003-60 Resolution Authorizing Preparation of a Map, Plan and Report for the Meadowood Water District 2003-61 Resolution Authorizing Amendments to the Map, Plan and Report for 1999-2R 2003-62 Resolution Authorizing Temporary Budget Transfers New Business/Comments Adjournment 02/10/2003.WS The Workshop Meeting of the Town of Wappinger was held on February 10, 2003 at the Town Hall, 20 Middlebush Road, Wappingers Falls, New York. Supervisor Ruggiero opened the meeting at 7:30 p.m. Present: Joseph Ruggiero, Supervisor Robert Valdati, Councilman Vincent Bettina, Councilman (arrived 7:38 p.m.) Christopher Colsey, Councilman Joseph Paoloni, Councilman Gloria J. Morse, Town Clerk Others Present: Jay Paggi, Engineer to the Town Al Roberts, Attorney to the Town Graham Foster, Highway Superintendent DISCUSSIONS: • Redistricting—Phil Chonigman, of GPS-GEOPolitical Strategies, a Technical Consulting firm, gave a short presentation on redistricting of the election districts for the Town of Wappinger and went over the various steps needed to prepare the redistricting in accordance with the 2000 Federal Census of the USA. He informed the board that he would also assist in the legislation of the plan. At this time, 7:50 p.m., Councilman Colsey moved to go into Executive Session for a presentation from LGB because of possible litigation. The meeting reconvened at 8:25 p.m. with all board members present. There was no action taken at Executive Session. • Shared Driveways re Gigliotti memo. Mr. Roberts went over a map in regard to the above memo concerning shared driveways. DOT had requested that there only be one curb cut out to the road because they did not wish to have two driveway cuts next to each other, but share one common one. Our Zoning Ordinance requires that if there is a new lot, the access to that lot has to be over the road frontage. In order to comply with DOT's request, the property owner would need a variance. The Planning Board has recommended that they go to the ZBA to get the variance and also get some input from the Town Board regarding this issue. The access to that lot has to be over the road frontage. He explained that Jay Paggi and Dan Wery are in agreement with specific reference to this lot configuration that it might be appropriate to have one driveway cut for the two separate lots. Mr. Foster, Highway Superintendent had a different view. He felt that we would be creating a private road. You are looking at maintenance issues, etc. He sees no reason to change the precedent of the past for not allowing this. In addition this would also be 1 02/10/2003.WS saving the applicant around $30 K because he would not have to put the second driveway in. Discussion followed. 0 Shed Amnesty Law proposal. Al Roberts, Attorney to the Town, presented a draft resolution for discussion only, on the proposed Local Law for the Shed Amnesty. This proposed draft would grandfather sheds that were erected without benefit of Building Permits prior to January 1, 1997. Discussion followed. RESOLUTION NO. 2003-049 RESOLUTION AUTHORIZING FIRE ALARM SYSTEM FOR HIGHWAY DEPARTMENT The following Resolution was introduced by Councilman Bettina and seconded by Councilman Colsey. WHEREAS, the Town of Wappinger entertained three (3) bids from numerous vendors with respect to the installation of fire alarm systems for the Town of Wappinger Highway Department; and WHEREAS, Platts Country Village Locksmith, Inc. submitted the lowest bid for the installation of the fire alarm system for the Town of Wappinger Highway Department totaling Five Thousand Six Hundred and Fifty Four Dollars ($5,654.00); and WHEREAS, Supervisor Joseph Ruggiero has reviewed and approved the bid submitted by Platts Country Village Locksmith, Inc. for the installation of fire alarm systems for the Highway Department and has found Platts Country Village Locksmith, Inc. to be the "lowest responsible bidder" pursuant to the competitive bidding requirements of General Municipal Law §103 and the Town's Procurement Policy. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby accepts the proposal submitted by Platts Country Village Locksmith, Inc. for the installation of fire alarm systems for the Highway Department of the Town of Wappinger totaling Five Thousand, Six Hundred and Fifty Four Dollars ($5,654.00) as set forth in Platts Country Village Locksmith, Inc.'s Estimate and Purchase Order dated October 22, 2002, copies of which are attached hereto. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye 2 02/10/2003.WS The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-051 RESOLUTION AUTHORIZING REFUND OF UNUSED ESCROW FUNDS The following Resolution was introduced by Councilman Paoloni and seconded by Councilman Colsey WHEREAS, on or about June 1, 1998, Modu-Craft Homes deposited One Hundred One Dollars and 50/100 Dollars ($101.50) with the Town of Wappinger in escrow to secure the Subdivision Approval for grid number 6257-03-124010 at the intersection of Dugan Lane and All Angels Road, Wappingers Falls, New York pursuant to Application No. 8691; and WHEREAS, the required Subdivision Approval has now been satisfactorily completed and the return of the unused escrow amount of One Hundred One Dollars and 50/100 Dollars ($101.50) has been recommended by Tatiana Lukianoff, Zoning Administrator to the Town of Wappinger, in her letter dated January 13, 2003 to Supervisor Joseph Ruggiero and Town Board Members. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. Payment is approved in the amount of One Hundred and One Dollars and 50/100 Dollars ($101.50) made payable to Fred Straub, Application No. 8691, for the refund of the unused escrow funds deposited for the Subdivision Approval of this Application. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-052 RESOLUTION ENDORSING SPORTS MUSEUM HALL OF FAME ROAD RACE The following Resolution was introduced by Councilman Colsey and seconded by Councilman Paoloni. WHEREAS, the Sports Museum of Dutchess County will be co -sponsoring along with the Mid -Hudson Road Runners, a road race on May 25, 2003; and 3 02/10/2003.WS WHEREAS, the race will consist of a 4K run and a 1500 meter run, both starting and finishing in the Hannaford Market parking lot at the intersection of Myers Corners Road and U.S. Route 9; and WHEREAS, the 4K race will start at the Hannaford Market parking lot, cross Myers Corners Road to Losee Road, make a right onto Sucich Drive, left onto Old Hopewell Road, left onto Losee Road, left on to Myers Corners Road, and finish at the Hannaford Market parking lot; and WHEREAS, the 1500 meter race will run around the Hannaford Market Plaza, Hollowbrook, and the Hudson Valley Federal Credit Union. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board endorses the Sports Museum Hall of Fame Road Race This resolution is adopted on the expresses condition that the Sports Museum of Dutchess County and Mid -Hudson Road Runners provide proof of General Liability Insurance in the amount of One Million Dollars ($1,000,000.00) per occurrence naming and insuring the Town of Wappinger as Certificate Holder and additional insured against any actions, claims, or lawsuits arising from personal injury, property damage, and/ or negligent acts caused by the Sports Museum Hall of Fame Road Race or any of its participants, agents and/ or employees, including the organizing organizations, while performing services in the Town of Wappinger pursuant to this Resolution. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-053 RESOLUTION TO AUTHORIZE THE EXECUTION OF THE AGREEMENT BETWEEN THE TOWN OF WAPPINGER AND THE COUNTY OF DUTCHESS The following Resolution was introduced by Councilman Bettina and seconded by Councilman Colsey. WHEREAS, the Town entered into an Agreement with the County dated February 9, 1998 (County Contract No. 98 -0129 -12/98 -OA) providing a joint service transportation system for senior citizens and handicapped individuals; and .19 02/10/2003.WS WHEREAS, said Agreement has been amended and extended from time to time; and WHEREAS, the Town desires to extend the term of said Agreement for an additional period of one (1) year. NOW, THEREFORE, BE IT RESOLVED, that the Town Board hereby accepts the terms and conditions set forth and contained in the Extension Agreement dated , 2003, by and between the County of Dutchess and the Town of Wappinger, for providing a joint service transportation system for senior citizens and handicapped individuals. BE IT FURTHER RESOLVED, that the Supervisor of the Town is hereby directed and authorized to execute the Extension Agreement a copy of which is affixed hereto by and on behalf of the Town of Wappinger. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-054 RESOLUTION TO AUTHORIZE BIDS FOR HIGHWAY SUPPLIES The following Resolution was introduced by Councilman Valdati and seconded by Councilman Paoloni. WHEREAS, Town of Wappinger Highway Superintendent Graham Foster has requested permission in a letter to the Town Board dated February 4, 2003, to go out to bid for items relates to the maintenance with the Town's highway system, storm drainage system, and bulk pick up THEREFORE, BE IT RESOLVED, that Graham Foster, the Superintendent of Highways of the Town of Wappinger, is hereby authorized to go to bid for various supplies and equipment needed in connection with the maintenance with the Town's highway system, storm drainage system, and bulk pick up as well as supplies as follows: One 40,000 GVW Dump Truck with combination body and plow One 12, 000 GVW small Dump 4x4 with plow One Dump Body with sander which is to replace truck No. 11 The foregoing was put to a vote, which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye 5 02/10/2003.WS The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-055 RESOLUTION AWARDING CONTRACT FOR PREPARATION OF TOWN REDISTRICTING PLAN The following Resolution was introduced by Councilman Valdati and seconded by Supervisor Ruggiero. WHEREAS, the Town Board of the Town of Wappinger wishes to evaluate and prepare the redistricting of the Town of Wappinger to be in accordance with the 2000 Federal Census of the United States of America; and WHEREAS, the firm GPS-GEOPolitical Strategies with an office at 22 Dunham Road, Hartsdale, New York 10530, a qualified Technical Consulting firm and is capable of preparing an accurate redistricting plan for the Town of Wappinger. NOW, THEREFORE, BE IT RESOLVED, as follows The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. Phillip D. Chonigman of GPS-GEOPolitical Strategies with an office at 22 Dunham Road, Hartsdale, New York 10530 is hereby authorized to prepare a redistricting plan for the Town of Wappinger in accordance with a written proposal dated December 9, 2002 with an amount not to exceed Eight Thousand Dollars ($8,000). Albert P. Roberts, Attorney to the Town of Wappinger, is authorized to draft and/or review a contract in accordance with the terms and conditions stated herein. Supervisor Joseph Ruggiero is hereby authorized to sign a contract on behalf of the Town and authorize commencement of the work thereby. The foregoing was put to a vote, which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-56 INTRODUCING LOCAL LAW NO. _ 2003, AUTHORIZING A PARTIAL REAL PROPERTY TAX EXEMPTION FOR VETERANS The following resolution was introduced by Councilman Bettina and seconded by Councilman Paoloni. 0 02/10/2003.WS WHEREAS, it has come to the attention of the Town Board that New York State Legislature, pursuant to §458-a of the Real Property Tax Law, authorizes local municipalities to increase the real property tax exemptions to Veterans; and WHEREAS, the Town Board has determined that Veterans have made a significant contribution to their community and to the Town of Wappinger and that it is appropriate to grant this additional tax relief to such Veterans; and WHEREAS, the Town Board has determined that it is in the best interest of the citizens of Town of Wappinger to amend the Town Code §221-8 in order to implement the maximum tax exemption authorized by the Legislature for Veterans; and WHEREAS, this is a Type II action pursuant to 6 NYCRR 617.5 (c) (20) and is otherwise exempt from environmental review pursuant to the New York State Environmental Quality Review Act (SEQRA). NOW, THEREFORE, BE IT RESOLVED: 1. The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby introduces for adoption Local Law No._ of 2003 in the form annexed hereto. The Town Board hereby determines that the enactment of the aforementioned Local Law is a Type II action as defined in 6 NYCRR 617.5 (c) (20) and, accordingly, the Town Board hereby expressly determines that this action is not an action that requires review pursuant to the provisions of New York State Environmental Quality Review Act (SEQRA) or pursuant to Local Law No. 6 of 1992 or pursuant to 6 NYCRR Parts (617). The Town Board hereby schedules a Public Hearing on the Proposed Adoption of Local Law No._ of 2003 to be held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York on the 24th day of February, 2003, at 7:30 p.m., and the Town Clerk is directed to post the Notice of the Public Hearing in the form annexed hereto and to publish same in the Southern Dutchess News and Poughkeepsie Journal as required by law. The foregoing was put to a vote, which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-57 7 02/10/2003.WS INTRODUCING LOCAL LAW NO. OF THE YEAR 2003, AUTHORIZING A PARTIAL REAL PROPERTY TAX EXEMPTION FOR VOLUNTEER FIREFIGHTERS The following resolution was introduced by Councilman Bettina and seconded by Councilman Colsey. WHEREAS, it has come to the attention of the Town Board that the New York State Legislature has amended the Real Property Tax Law authorizing local municipalities to provide a partial real property tax exemption to volunteer firefighters; and WHEREAS, the Town Board has determined that volunteer firefighters have made a significant contribution to their community and to the Town of Wappinger and that it is appropriate to grant this additional tax relief to such volunteer firefighters; and WHEREAS, the Town Board has determined that it is in the best interest of the citizens of the Town of Wappinger to adopt a Local Law to implement the tax exemption authorized by the Legislature for volunteer firefighters; and WHEREAS, this is a Type II action pursuant to 6 NYCRR 617.5 (c) (20) and is otherwise exempt from environmental review pursuant to the New York State Environmental Review Act (SEQRA). NOW, THEREFORE, BE IT RESOLVED: 1. The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby introduces for adoption Local Law No._ of 2003 in the form annexed hereto. The Town Board hereby determines that the enactment of the aforementioned Local Law is a Type II action as defined in 6 NYCRR 617.5 (c) (20) and, accordingly, the Town Board hereby expressly determines that this action is not an action that requires review pursuant to the provisions of New York State Environmental Review Act (SEQRA) or pursuant to Local Law No. 6 of 1992 or pursuant to 6 NYCRR Parts (617). The Town Board hereby schedules a Public Hearing on the Proposed Adoption of Local Law No._ of 2003 to be held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York on the 24th day of February 2003, at 7:30 p.m., and the Town Clerk is directed to post the Notice of the Public Hearing in the form annexed hereto and to publish same in the Southern Dutchess News and Poughkeepsie Journal as required by law. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye 02/10/2003. W S Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-58 INTRODUCE LOCAL LAW AND SET PUBLIC HEARING FOR REQUIRED STREET FRONTAGE AND PHASE II PREPARATION OF PRELIMINARY PLAT AND CONSTRUCTION PLANS The following resolution was moved by Councilman Paoloni and seconded by Councilman Bettina. WHEREAS, the Town Board of the Town of Wappinger has determined that the Town Code, Section 240-20, Required Street Frontage and Section 217-12. Phase IL Preparation of Preliminary Plat and Construction Plans, should be respectively amended and revised to: 1) clarify the application of the minimum frontage requirement vis-a-vis flag lots in so far as to plainly state that the "pole" portion of flag lot, i.e. that portion of lot connecting the flag or main portion of the lot to the street, shall maintain a minimum width of fifty feet for its entire length and 2) limit the timeframe to five years in which approval of preliminary plat can be extended (the "Proposed Action"); and WHEREAS, the Town Board determined that the Proposed Action is an Unlisted action pursuant to Article 8 of the Environmental Conservation Law, Part 617 NYCRR (commonly known as "SEQRA") and pursuant to Local Law No. 6 of 1992 (the Town's environmental quality review law): and WHEREAS, the Town Board has determined that the proposed Local Law is an action for which there are no other Involved Agencies and that the town Board is therefore, by default as the only involved agency, the Lead Agency for this action. NOW, THEREFORE, BE IT RESOLVED, AS FOLLOWS: 1. The Town Board of the Town of Wappinger hereby reintroduces for consideration of its adoption proposed Local Law No._ 2003 in the form annexed hereto; except as specifically modified by the amendments contained therein, the Zoning Law and Subdivision Regulations as originally adopted and amended from time to time thereafter are to remain in full force and effect and is otherwise to be ratified, readopted and confirmed 2. The Town Board has reviewed the Proposed Action and hereby reserves the right to make its Determination of Significance pursuant to SEQRA until the conclusion of the Public Hearing(s) on the proposed amendments to the Town Code. 3. The Town Board hereby schedules a Public Hearing regarding the adoption of the annexed proposed Local Law No. _ of 2003 for 7:30 p.m. M 02/10/2003.WS on the 10th day of March, 2003 and the Town Clerk is hereby directed to publish notice thereof in the Town's official newspapers not less than ten (ten) days prior to said Public Hearing date. 4. The Town Board hereby directs the Town Clerk to act as follows with respect to the proposed Local Law: a. To serve a copy of this resolution, the annexed proposed Local Law, and the public hearing notice to the municipal clerk of each abutting municipality not less than ten (10) days prior to said public hearing. b. To serve a copy of this resolution, the annexed proposed Local Law, and the public hearing notice to the Dutchess County Department of Planning and Development for advisory review in accordance with Section 239 of General Municipal Law; and c. To distribute a copy of the resolution, the annexed proposed Local Law, and the public hearing notice to the Town of Wappinger Planning Board for its review and recommendation pursuant to Section 240-112 of the Zoning Law prior to said public hearing. The question of the adoption of the foregoing resolution was duly put to a roll call vote which resulted as follows: Joseph Ruggiero, Supervisor Voting Aye Robert Valdati, Councilman Voting Aye Vincent Bettina, Councilman Voting Aye Christopher Colsey, Councilman Voting Aye Joseph Paoloni, Councilman Voting Aye The Resolution is hereby duly declared adopted. RESOLUTION NO. 2003-59 INTRODUCING LOCAL LAW NO. _ OF THE YEAR 2003, AMENDING THE REAL PROPERTY TAX EXEMPTION FOR SENIOR CITIZENS The following resolution was introduced by Councilman Bettina and seconded by Councilman Colsey. WHEREAS, it has come to the attention of the Town Board that the New York Legislature, pursuant to §467 of the Real Property Tax Law, authorizes local municipalities to provide a real property tax exemption to senior citizens, provided that they meet certain income eligibility requirements, and to exclude Veteran's Disability Compensation from the determination of the income eligibility level pursuant to §467 of the Real Property Tax Law; and WHEREAS, the Town Board has determined that senior citizens who collect Veteran's Disability Compensation as defined in Title 38 of the U.S. Code have made a significant contribution to their community and to the Town of Wappinger and that it is appropriate to exclude such income when 10 02/10/2003.WS determining the income eligibility level pursuant to §467 of the Real Property Tax Law; and WHEREAS, the Town Board has determined that an amendment to Town Code §221-2 is necessary to implement the Veteran's Disability Compensation income exclusion from the determination of the income eligibility level pursuant to §467 of the Real Property Tax Law; and WHEREAS, the Town Board has further determined that an additional amendment to Town Code §221-2 is necessary to allow real property owned by siblings who reside together, one of whom is sixty-five (65) years of age or over, to be exempt from taxation by the Town up to a maximum of Fifty Percent (50%) of the assessed valuation thereof; and WHEREAS, this is a Type II action pursuant to 6 NYCRR 617.5 (c) (20) and is otherwise exempt from environmental review pursuant to the New York State Environmental Quality Review Act (SEQRA). NOW, THEREFORE, BE IT RESOLVED: 1 The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. 2. The Town Board hereby introduces for adoption Local Law No._ of 2003 in the form annexed hereto. 3. The Town Board hereby determines that the enactment of the aforementioned Local Law is a Type II action as defined in 6 NYCRR 617.5 (c) (20) and, accordingly, the Town Board hereby expressly determines that this action is not an action that requires review pursuant to the provisions of New York State Environmental Quality Review Act (SEQRA) or pursuant to Local Law No. 6 of 1992 or pursuant to 6 NYCRR Parts (617). 4. The Town Board hereby schedules a Public Hearing on the Proposed Adoption of Local Law No._ of 2003 to be held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York on the 24th day of February, 2003, at 7:30 p.m., and the Town Clerk is directed to post the Notice of the Public Hearing in the form annexed hereto and to publish same in the Southern Dutchess News and Poughkeepsie Journal as required by law. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Robert Valdati, Councilman Vote Aye Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted 11 02/10/2003.WS At this time, 9:25 p.m. Councilman Paoloni moved to go into Executive Session to get opinion of Council on the Domber Wells, seconded by Councilman Bettina and unanimously carried. The meeting reconvened at 9:35 p.m. with all Board Members in attendance. RESOLUTION NO. 2003-60 RESOLUTION AUTHORIZING PREPARATION OF A MAP, PLAN AND REPORT FOR THE MEADOWOOD WATER DISTRICT The following Resolution was introduced by Councilman Valdati and seconded by Councilman Colsey WHEREAS, the Meadowood Development Corp. owns certain real property located in the Town of Wappinger shown as Lot No. 7 on a certain Subdivision Map entitled "Meadowood Development Corporation Subdivision Plan Parcel 2" which map was approved by the Town of Wappinger Planning Board and filed in the Office of the Dutchess County Clerk as Filed Map No. 11210; and WHEREAS, pursuant to a Contract dated October 1, 2001 between Meadowood Development Corp. and the Town of Wappinger (hereinafter "the Contract"), Meadowood Development Corp. has agreed to, and will, sell to the Town of Wappinger the aforesaid real property under the terms outlined in the Contract; and WHEREAS, the Contract provides that Meadowood Development Corp. will file a petition with the Town of Wappinger to form the Meadowood Water District, which Water District is more fully described in the Contract; and WHEREAS, the Contract further provides that the Town of Wappinger Engineer will prepare the Map, Plan and Report for the aforesaid Meadowood Water District; and WHEREAS, the Contract further provides that Meadowood Development Corp. will reimburse the Town Engineer for the reasonable costs in preparing the Map, Plan and Report for the aforesaid Water District. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby authorizes and directs the Engineers to the Town, Paggi, Martin & Del Bene, LLP located at 54-56 Main Street, Poughkeepsie, New York 12601, to prepare a Map, Plan and Report for the Meadowood Water District. The costs incurred by the Town of Wappinger in paying the Town Engineer for preparing the aforesaid Map, Plan and Report shall be reimbursed by 12 02/10/2003.WS Meadowood Development Corp. pursuant to the Contract between Meadowood Development Corp. and the Town of The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Joseph Paoloni, Councilman Vote Aye Aye The Resolution is hereby duly declared adopted Supervisor Ruggiero directed the Town Clerk to include in the minutes, letters regarding the Town of Wappinger purchase of the Domber Wells, verbatim to become a part of the record. RESOLUTION NO. 2003-61 RESOLUTION AUTHORIZING AMENDMENT TO THE MAP, PLAN AND REPORT FOR 1999-2(R) The following Resolution was introduced by Councilman Colsey and seconded by Councilman Valdati. WHEREAS, the Town of Wappinger previously authorized the formation of the Wappinger Water Improvement Area 1999-2(R), hereinafter referred to "99-2(R)", for the purposes of constructing a supplemental water supply to various Water Districts and Water Improvement Areas in the Town; and WHEREAS, Paggi, Martin & Del Bene, LLP, Engineers to the Town of Wappinger, previously prepared and filed a Map, Plan and Report for 99- 2(R); and WHEREAS, the aforesaid Map, Plan and Report was prepared and filed prior to the Town of Wappinger entering into a Contract with Meadowood Development Corp., which Contract affects the improvements to be made by 99-2(R); and WHEREAS, the Town of Wappinger did enter into a Contract with Meadowood Development Corp. on October 1, 2001 (hereinafter "the Contract") which Contract provides that the Town of Wappinger will purchase a fully approved potable water supply, including filtration, (hereinafter the "Domber Wells") from Meadowood Development Corp. for the sum of Four Hundred and Fifty Thousand Dollars ($450,000); and WHEREAS, the Contract further provides that the Town of Wappinger will take all necessary steps to implement the amendments to the aforesaid Map, Plan & Report to include the Town's purchase of the Domber Wells, and that the Town Engineer shall revise the Map, Plan & Report for 99-2(R) to include the source and treatment facilities which are the subject of the Contract; and 13 02/10/2003.WS WHEREAS, the Contract further provides that the Meadowood Development Corp. will reimburse the Town of Wappinger for reasonable expenses incurred for such revisions to the 99-2(R) Map, Plan & Report. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby authorizes and directs Paggi, Martin & Del Bene, LLP, Engineers to the Town of Wappinger, to amend the Map, Plan and Report for 99-2(R) to include the Town of Wappinger's acquisition of the fully approved potable water supply, including filtration (i.e., the Domber Wells) pursuant to the October 1, 2001 Contract between the Town of Wappinger and Meadowood Development Corp. The costs incurred by the Town of Wappinger in paying the Town Engineer for amending the Map, Plan and Report for 99-2(R) shall be reimbursed by Meadowood Development Corp. pursuant to the October 1, 2001 Contract between Meadowood Development Corp. and the Town of Wappinger. The foregoing was put to a vote which resulted as follows: Joseph Ruggiero, Supervisor Vote Aye Robert Valdati, Councilman Vote Aye Vincent Bettina, Councilman Vote Aye Christopher Colsey, Councilman Vote Aye Joseph Paoloni, Councilman Vote Aye The Resolution is hereby duly declared adopted RESOLUTION NO. 2003-062 RESOLUTION AUTHORIZING TEMPORARY BUDGET TRANSFERS The following Resolution was introduced by Councilman Paoloni and seconded by Councilman Valdati. WHEREAS, the Comptroller to the Town of Wappinger, Gerald A. Terwilliger, has recommended certain budget transfers hereby temporarily amending the Town budget as set forth in a letter dated February 6, 2003 from Gerald A. Terwilliger, Comptroller, to Supervisor and Town Board Members. NOW, THEREFORE, BE IT RESOLVED, as follows: The recitations above set forth are incorporated in this Resolution as if fully set forth and adopted herein. The Town Board hereby authorizes the following budget transfers hereby temporarily amending the Town of Wappinger Budget adopted for the calendar year of 2003: 14 VERGILIS, STENGER, ROBERTS, PERGAMENT & VIGLOTTI, LLP ATTORNEYS AND COUNSELORS AT LAW 1136 ROUTE 9 GERALD A. VERGILIS* WAPPINGERS FALLS, NEW YORK 12590 OF COUNSEL: KENNETH M. STENGER (845) 298-2000 IRA A. PERGAMENT ALBERT R ROBERTS LEGAL ASSISTANTS: LOUIS J. VIGLOT77 FAX (845) 298-2842 AMY E. DECARLO JOAN F. GARRETT** e-mail: VSRP@BestWeb.net LISA MARTELL THOMAS R. DAVIS KAREN P. MACNISH KEVIN T. MCDERMOTT STEVEN K PATrERSON JAY B. RENFRO *ADMITTED TO PRACTICE IN NY &PLA. **ADMLYTED'TO PRACTICE IN NY & CONN. February 6, 2003 Hon. Joseph Ruggiero, Supervisor Town of Wappinger 20 Middlebush Road Post Office Box 324 Wappinger Falls, New York 12590 POUGHIUMPSIE OFFICE 276 MAIM MALL POUGHKEEPSIE, NY 12601 (845) 452-1046 PINE PLAINS OFFICE /s �12990 CHURCH ST. FEB A � 003 P.O. BOX 21 OFFICE PLAINS, NY 12567 SUPERVISORS Orf ICE (518) 398-9857 TOWN OF WAPPINGER ADDRESS REPLY To: ( ) POUGHKEEPSIE ( ) WAPPINGERS ( ) PINE PLAINS Re: Wappinger Water Improvement Area 1999-2(R) "Domber Wells" — Meadowood Water District File No. 16678.012 _MeadO3dJDod_DEYEloprment _Corp. with the Town of Wappinger File No. 12951.0447 Dear Joe: Enclosed please find a copy of letter from Tom Rothman dated February 4, 2003. Very truly ours, VERGIL%STENGER, ROBERTS, PERGAMENT & VIGLOTTI, LLP Aj--BEP,T ROBERTS APR/bg " Enclosure cc: Hon. Gloria J. Morse, Town Clerk Town Board File Joseph E. Paggi, Jr., P.E., Town Engineer O:\WAPPINGE\Town Board\WATER-DISTRICTS\Meadowwood\020603-JR.doe n WILLKIE FARR & GALLAGHER FEB February 4, 2003 Albert P. Roberts, Esq. Vergilis, Stenger, Roberts, Pergament & Viglotti Attorneys and Counselors at Law 1136 Route 9 Wappinger Falls, New York 12590 THOMAS M. ROTHMAN 2!2 —'8;1260 rrorhnian0willkie.coc-. Ne%. York. Ni iii01' Tel: 212 728 3oCo Fax: 213 -28 3111 Re: Town of Wappinger, Dutchess County, New York Wappinger Water Improvement Area 1999-2(R); so-called Domber Wells Project Our File No. 090427-377 Dear Al: I am writing, in accordance with your request during our recent conference call, that I reconfirm our opinion contained in our letter of June 22, 2001 to then Supervisor Smith and the Town Board of the Town of Wappinger in context of a letter received from the State Comptroller dated November 22, 2003. On December 9, 2002, I wrote you and stated that I had received from you and reviewed the State Comptroller's November 22, 2002 letter to you concerning certain competitive bidding issues with respect to the development of the so-called Domber Wells Project. In that letter I stated to you that I questioned the relevancy and applicability of the cases referenced in the State Comptroller's letter, as I believe they are distinguishable from the facts of the Domber Wells situation. I specifically referenced the fact that the owner of the Domber Wells has stated to the Town that it will not transfer the Domber Wells to the Town unless such owner develops the Wells itself to assure timeliness and quality. Both you and the Town's engineer have restated to me that such owner will not transfer the Domber Wells to the Town unless it develops the Wells itself. Absent condemnation the Town cannot develop the Wells and must permit such owner to develop the Wells. I believe the State Comptroller's letter omits any discussion of these facts, facts which I believe makes the development of the Domber Wells unique and not subject to competitive bidding. You have further asked whether, under the facts and circumstances present and known to me, an objective observer could reasonably conclude that the Town's purchase of the developed Domber Wells appeared improper. I agree with your concern that, in addition to making certain that all of the Town's actions with respect to acquisition of the developed Domber Wells comply with law, the Town must strive to avoid the appearance of impropriety. At no NF\vVnart WAtWTNC. nwr Tl( PAGrf TnNnnm MT7AnT Rn.11 FO GTT -71- R,.T­­ I 1162350.1 time, neither during my conversations with you, the Town's engineer or counsel to the owner of the Domber Wells, or at any other time, have I been provided with any information which would lead either me or, in my judgment, an objective observer, to conclude that any impropriety has occurred. Town Law specifically authorizes the Town to purchase either an undeveloped or a developed well field. My conversations with counsel to the owner of the Domber Wells clearly provided ample justification for this owner's position to sell only after the wells were developed; his justification is related to timeliness and quality and unrelated to competitive bidding or profits to be made from such development. As I understand the facts, once the Wells are completed and dedicated to the Town, the owner will be permitted to acquire water from the Town for a nearby 14 lot subdivision. Without water from these wells, these 14 lots cannot be developed. This owner's motivation is simply to protect its interest by controlling the pace, quality and timeliness of construction of these wells. Such motivation evidences a legitimate business decision of such owner and the Town's purchase, after the development of these wells, under the facts and information provided to me, should not cause an objective observer to question the propriety thereof. Again, I must emphasize that Town Law §198 (3) specifically authorizes the Town to purchase an existing water system or purchase a portion thereof. The Town will be purchasing a portion of an existing water system and accordingly, I stand by my prior opinions dated June 22, 2001 and December 9, 2002. As stated in my letter of June 22, 2001 attached hereto, in our opinion, based upon the facts as set forth in that letter and in this letter, while a court could conclude otherwise, we believe a court should conclude that the acquisition by the Town of Wappinger of the developed (and filtered) Domber Wells is not a violation of Article 5-A of the General Municipal Law. I trust this letter will satisfy your needs at this time. With best wishes, Very truly yours, Thomas M. Rothman TMR:pds Enclosure -2- VERGILIS, STENGER, ROBERTS, PERGAMENT & VIGLOTTI, LLP ATTORNEYS AND COUNSELORS AT LAW GERALD A. VERGILIS* KENNETH M.STENGER ALBERT P. ROBERTS LOUIS J. VIGLOTTI 'JOAN F. GARRETT** THOMAS R. DAVIS KAREN P. MACNISH KEVIN T. MCDERMOTT • STEVEN K PATTERSON JAY B.RENFRO *ADMITTED TO PRACTICE INNY&FLA. **ADMITTED TO PRACTICE IN NY & CONN. February 4, 2003 Town Board Town of Wappinger 20 Middlebush Road 1136 ROUTE 9 WAPPINGERS FALLS, NEW YORK 12590 (845) 298-2000 FAX (845) 298-2842 e-mail: VSRP®BestWeb.net Post Office Box 324 Wappinger Falls, New York 12590 FEB 0 6 ,?. flq SUPERTOWN OF OR S F WIPP NGS R Attention: Hon. Joseph Ruggiero, Supervisor fir. Re: Wappinger Water Improvement Area 1999-2(R) "Domber Wells" — Meadowood Water District File No. 16678.012 Meadowood Development Corp. with the Town of Wappinger File No. 12951.0447 Dear Joe and Board Members: OF COUNSEL: IRA A. PERGAMENT LEGAL ASSISTANTS: AMY E. DECARLO LISA MARTELL POUGHKEEPSIE OFFICE 276 MAIN MALL POUGHKEEPSIE, NY 12601 (845) 452-1046 PINE PLAINS OFFICE 2990 CHURCH ST. P.O. BOX 21 PINE PLAINS, NY 12567 (518) 398-9857 ADDRESS REPLY TO: () POUGHKEEPSM ( ) WAPPINGERS ( ) PINE PLAINS This letter is a follow-up to the opinion letter received from Mitch Morris, Associate Counsel, Office of the State Comptroller, dated November 22, 2002 as well as Tom Rothman's follow-up letter of December 9, 2002 - copies of both are attached hereto. As I have expressed earlier, I felt it most appropriate to defer to Mr. Rothman on the issues presented by the Town purchasing, on behalf of the Wappinger Water Improvement Area 1999-2(R), the so-called "Domber Wells". I have deferred to Mr. Rothman first and foremost because this is his field of expertise and secondly because of my partner's representation of a limited liability company in which Mr. Domber has a minority interest. O:\WAPPINGMTown Board\WATER-DISTRICTS\Meadowwood\020403-TB.doc Mr. Rothman first rendered his opinion on this topic by letter dated June 22, 2001 (see copy attached). My office subsequently wrote to Mr. Morris because of a lingering concern that the contract between the Town and Meadowood Development Corp. might somehow be violative of the competitive bidding statutes. It is to be noted that Mr. Morris' letter of November 22, 2002 did not rule one way or another on the issues presented to him. Mr. Morris did, however, provide some research materials. Both Mr. Rothman's and my office reviewed the provided materials and as Mr. Rothman noted, the cases supplied by Mr. Morris are "distinguishable from the facts of the Domber Wells situation." I concur with Mr. Rothman and agree with his initial analysis as set forth in his letter of June 22, 2001. I caution, however, that there is no case precisely on point and the possibility always exists that a court could reach a different conclusion. I am writing this opinion based on several factors: 1. Over the course of the last decade, Dutchess County and the Town of Wappinger, in particular, has experienced several drought conditions resulting in several water emergencies being declared and the imposition of restrictions on water usage for substantial periods of time; 2. There are no other known sources of water in this vicinity capable of producing the quantity of water provided by the "Domber Wells"; 3. In general, the Town of Wappinger has limited access to both surface and ground water for public water supplies; 4, Both Central Wappinger Water Improvement Area and the Wappinger Water Improvement Area 1999-2(R) are in need of additional supplies of water to satisfy the expected water needs of the Town; and 5. The Town Board has gone on record as wishing to acquire all available sources of potable drinking water to satisfy both present and future water .naeds.,of..the..TowiL The original Map, Plan and Report for Wappinger Water Improvement Area 1999-2(R) contemplated that Meadowood Development Corp. would donate.the `.`Domber Wells" and the land surrounding the wells to the Town and the Town would then pay for the costs of integrating the "Domber Wells" in the Rockingham/ Central Wappinger Water systems. When the original Map, Plan and report was drafted, it was not believed that the "Domber Wells" were under the influence of surface water. It was subsequently determined that thewells were under the influence of surface water and would require filtration. When certain timing difficulties arose, Meadowood Development Corp. withdrew its offer to donate the wells and the property but agreed to develop the wells, including necessary filtration systems, and sell the land and developed system to the Town at a total cost of $450,000. Based on the foregoing, Mr. Rothman noted in his opinion: "The powers of the Town Board with respect to a water improvement area established pursuant to the provisions of 209(q) of the Town Law are set -� forth in Section 198(3) of the Town Law. That Section provides, in 2 0AWAPPINGMTown Board\WATER-DISTRICTS\Meadowwood\020403-TB.doc pertinent part, .... `The town board may also acquire by purchase any existing water system, or a portion thereof, .... for the purpose of supplying the inhabitants of a water [improvement area] in such town, but the cost of acquisition thereof shall not exceed the maximum amount stated in the petition or in the final order....' Other provisions of Section 198 provide that powers are subject to permissive referendum. This provision does not so provide." It must be remembered that Meadowood still owns the subject property and wells, and is entirely within its rights to develop the wells and use them for its own purposes rather than sell same to the Town. Meadowood withdrew its offer to donate the wells and land to the Town, however, agreed to sell the land and the developed wells with filtration to the Town at a cost less than the Town's estimated cost to interconnect the wells to the Town's existing system. The contract between the Town and Meadowood provides for a portion of an existing water system to be acquired by the Town. While it may be that the system has to be constructed, the product to be delivered, prior to the expenditure of any public monies, is an existing water system. In my judgment, this arrangement is supported by § 198(3) of the Town Law. By analogy, I also point out that § 192-a authorizes a Town to compensate a developer for excess water supply without compliance with the competitive bidding requirements. Since I have found no cases that would lead to a contrary determination, I concur with Mr. Rothman's opinion. I would reach a different conclusion if the Town owned the land/ well field and then offered to pay Meadowood for the costs of constructing the filtration system and for laying the pipes interconnecting the wells with the existing water system. See Webster v. Village of Freeport, 150 Misc. 2d 390. Very truly yours, VERGILIS, STE GER, ROBERTS, PERGAMENT & VIGLOTTI, LLP A&BERT P. ROBERTS APR/bg Enclosures cc: Hon. Gloria J. Morse, Town Clerk Town Board File Joseph E. Paggi, Jr., P.E., Town Engineer Jennifer L. VanTuyl, Esq. 3 O:\WAPPINGE\Town Board\WATER-DISTRICTS\Meadowwood\020403-TB.doe WILLKIE F�RR & C ALL OTHER r. C December 9, 2002 Albert P. Roberts, Esq W I riJ\I.i �.i. RiJ'ri Vergilis, Stenger, Roberts, Pergament & Viglotti, LLP FEB n 6 2003 Attorneys and Counselors at Law 1136 Route 9 SUPERVISOR'S OFFICE Wappinger Falls, NY 12590 TOWN OF WAPPINGER Dear Al: I have received and reviewed the State Comptroller's November 22 letter to you concerning the so- called Domber Weils Project. Quite ooviousi _ i am not orn,- to any information provided to the State Comptroiler :pith rested tc the question answered in his November 22 letter to you. i must question the relevanc,, an applicability of the cases referenced in his letter which, however. I believe are distinguishable from the facts of the Domber Wells situation. I attack a oopy-of rnv rune 22, 2001 letter to then Supervisor. Smith and to the Town Board about this project and reference my discussion on page 3 in which I site the facts given to me, which appear to be different from the facts submitted to the State Comptroller's office. Very truly yours, Thomas M. Rothman TMR/tda Enclosure .1�l.l NI{-i',N - t)(^ PA P[) i.ii\t7n.,' \l:t...�.n n�-. ,.i rRA a: 3 (: COMPETITIVE BIDDING UNL 'E.*IER4L, D•1L-NicIPAL LAW, §103 R END NOTES 1. The Court of Appeals in Acme, supra, noted that "[t)hese separate goals are not incompatible. Favoritism or irregulariry in the bidding process may ostensible produce monetary savings. However, the use of such means to meet that singulai end is still unsustainable because the complete public interest is ultimately promoted by fostering honest competition.' (91 NY2d at 55, 666 NYS2d at 998). 2. The court in Albion, supra also noted that '`each parcel of land and each building has its unique character which distinguishes it from all others such that to impose upon the municipality the obligation to receive competitive bids on similar or comparable premises would be inappropriate and illogical (citation omitted)" (62 AD2d at 482. 405 NYS2d at 524). 3. Note that in Webster, supra, a developer agreed to build a sewage pump station at the developer's own expense and dedicate it to the municipality. The munici- pality agreed to "assess" and collect from the owner of each lot a pro rata share of the developer's construction cost and to pay the moneys over to the developer. The court held that competitive bidding was not required for the construction of the pump station because there was no expenditure of public funds. The court, however—lid not fully examine whether the "assessments" by the village became village moneys and, therefore, whether the agreement constituted a contract for the construction and purchase of a village facility (compare Albion, supra; Long Meadow v City of Glen Cove, 171 AD2d 731, 567 NYS2d 287). 4. Cf. Swift v Mayor, 83 NY 528, Jones v City of Binghamton, 26 AD2d 710, 271 NYS2d 507, affd 20 NY2d 808,284 NYS2d 702,Anderson v City ofNew York, 258 App Div 588,17 NYS2d 326, Lance v City ofNew York, 88 Misc 2d 119.387 NYS2d 32, involving procurements for which there was an indefinite or unpredictable need: See 1980 Opns St Comp No. 80-415, p 121. distinguishing these cases: see .SC _.ScuS_:0r: :n - ., .. `.c :. _ _enar o "ail_ _ ._.-: P. --ne .-.esnoia. aVe -cr. :ur1{:Ct CD CO r --V—, b.id:.; _- mpe_. t. C`.:'FP. :. '.0 .0111d ;- vA ;;i:?r ar�eCt; CI �1at Cilt .ic° ," 2- it r - -- >✓ al__our.t ?=r_ndea ::-r'11d exceed the threshoid. 5. See, e.g., Town Law, §197, performance of work for a town special district improvement; Second Class Cities Law §=-Performance of work and supply of materials for cities governed by that section; Highway Law, §193, construction, reconstruction, improvement of town highways and bridges; Highway Law, §218, construction of storm sewers: Education Law, §305[14] and 8 NYCRR Parts 155; 156, school district mobile instructional units,cafeteria or restaurant service and transportation contracts. 6. The State Comptroller's Office had expressed the opinion that section 103(1) was not intended to preclude the adoption of local laws on or after September 1, 1953 which are essentially revisions. simplifications. consolidations,'codification or restatements of pre -1953 special or local laws applicable to a local government (Opn Nos. 92-50.91-52, 91-1,81-109, supra; see also U.S. v City of iVew York, 799 F Supp 1308 affd 972 F 2d 464). However, in Diamond Asphalt, supra, the Court of Appeals, in addressing the argument that a post -1953 city charter provision, enacted by local law, constituted a mere revision or recodification, and was there - M57 rn q_%qr. I H.CARL MCCALL _. 110 STATE STREET STATE COMPTROLLER ALBANY, NEW YORK 12236-0001 i aF STATE OF NEW YORK OFFICE OF THE STATE COMPTROLLER November 22, 2002 i File No. r32,19 J LLP Albert P. Roberts, Esq. Vergilis, Stenger, Roberts, Pergament & Viglotti Attorneys and Counselors at Law 113.6 Route 9 Wappingers Falls, New York 12590 Dear Mr. Roberts: FEB 0 6 2003 SUPERVISOR'S OFFICE TOWN OF WAPPINGER We are in receipt of your inquiry concerning a contract entered into in October 2001 between a development corporation and the town pursuant to which the development corporation has agreed to develop and construct certain wells and a filtration system. The town has agreed to pay the developer $450,000 for these items. The town has estimated that this cost would be less than the town's estimated cost to connect the wells to the town's water system, without filtration. You ask whether this arrangement contravenes the competitive bidding laws. Initially, I note that it is our policy to render opinions to supervisory local officials and to municipal attorneys with respect to the prospective actions of local governments under State laws of general applicability. Accordingly, we generally do not, in our opinions to local governments, comment on the propriety of contracts already entered into. When we do not render an opinion, we do, however, whenever possible, refer to other materials that may be of interest. Accordingly, I have enclosed for your reference, an excerpt from our research paper "Competitive Bidding Under General Municipal Law § 103 ", in which we noted that it has been held that purchases and true leases of real property do not constitute "purchase contracts" within the meaning and intent of the bidding laws; however, a contract for the construction and purchase of facilities may be considered a public work (p 3007). In particular, I call your attention to Long Meadow v City of Glen Cove, 171 AD2d 731, 567 NYS2d 287, cited in the excerpt, in which a developer agreed to install a sewer system to be connected to the city's system and the city agreed to pay for the cost. The court held that the contract "was clearly one for the construction of a 'public work' ... " (compare Town Law § 192-a, setting forth a limited exception to the competitive bidding requirements of Town Law § 197; Webster v Village of Fairport, 150 Misc 2d 390, 576 NYS2d 491, but see endnote 3 of enclosed excerpt, p 3057). To the extent it may have been suggested that the completion of a project without competitive 2 bidding at a potential cost savings, alone, would warrant an exception to competitive bidding requirements, I call your attention to the Court of Appeals cases of. Acme Bus v Roosevelt Boardof Education, 91 NY2d 51, 56, 666 NYS 996, 998 ("Favoritism or irregularity in the bidding process may ostensibly produce monetary savings. However, the use of such means to meet the singular end is still unsustainable because the complete public interest is ultimately promoted by fostering honest competition"); and Diamond v Sander, 92 NY2d. 244, 260, 265, 678 NYS2d 567, 575, 578 rearg den 92 NY2d 921, 680 NYS2d 461. ("The means to the end are important ... especially in light of the Court's firm admonitions about protecting a fastidious bidding process.*** Practical and unilaterally perceived policy objectives, however desirable, cannot bring about that legal conversion by endorsement from the courts * * * The public bidding process must be protected from creative efforts by a municipality, as here, to skate around the process, however well intentioned the City's policy, fiscal or practicality grounds."). I trust the above will be of assistance. Please do not hesitate to contact me at (518) 474-5586 if you wish to further discuss the above. You may also wish to contact the New York State Department of Labor with respect to the applicability of the prevailing wage statutes to the proposed project. Very truly yours, Mitchell S. Morris Associate Counsel MSM:kh Enc. cc: Joseph Ruggiero, Supervisor Town of Wappinger WILLKIE FARR & GALLAGHER Thomas M. Rothman June 22, 2001 Hon. Constance 0. Smith Supervisor Town of Wappinger Town Hall 20 Middlebush Road P.O. Box 324 Wappingers Falls, New York 12590-0324 Honorable Members of the Town Board Town of Wappinger Town Hall 20 Middlebush Road P. O. Box 324 Wappingers Falls, New York 12590-0324 Re: Wappinger Water Improvement Area 1999-2(R) Ladies and Gentlemen: 787 Seventh Avenue New York. ATY 10019-6099 212 728 8000 Direct: 212 728 8269 Fax: 212 728 8111 tro thman@willkie.com FEB 0 6 2003 SUPERVISOR'S OFFICE '(OWN OF WAPPINCER Al Roberts has requested that I provide to you our opinion with respect to two issues arising out of the proposed purchase by the Town, on behalf of Wappinger Water Improvement Area 1999-2(R) (the "Improvement"), of the so-called Domber Wells at Meadowood (the "Wells"). By Order dated January 23, 2001, the New York State Comptroller approved the establishment of the Improvement. A part of the projects proposed for the Improvement, as set forth in the Amended Map, Plan and Report prepared by Paggi, Martin & Del Bene dated September 15, 2000 submitted to you in connection with such establishment, is the purchase of the Wells, such Wells currently consisting of a partially developed well site located at Meadowood. While such acquisition was proposed to be without cost, the cost of the development of the Wells set forth in such Amended Map, Plan and Report, including contingency and fees, is $453,700. 1 have been informed that, subsequent to such Amended Map, Plan and Report and approval of the State Comptroller it was discovered that, due to the influence of Sprout Creek, water from the Wells is not potable absent filtration and that filtration will be required. I am further informed that meetings have taken place by and between Al Roberts, Jay Paggi and counsel for Meadowood Development Corp., the owner of New York 913594.1 'Washington, DC Paris London Hon. Constance O. Smith Town Board — Town of Wappinger June 23 2001 Page 2 the Wells, to explore possible solutions regarding this issue. As a result of those meetings one possible solution put forth was to have Jay prepare a new estimate of cost for the development and filtration of the Wells, which Jay has told me he estimates will be in excess, and possibly significantly in excess, of the $453,750 allocated for the development (without filtration) of the Wells, which estimate would -then be set forth in a new amendment to the Map, Plan and Report. Following that, a new hearing would be called and held, new proceedings, making various determinations, made, and a new application to and approval by the State Comptroller's Office would be required. I am further informed that counsel to Meadowood Development Corp. has informed you that this delay may cause harm to their client's proposed Meadowood Subdivision in that the developer anticipates the source of water supply for his proposed Meadowood Subdivision will be the Improvement and that the delays anticipated from the proposal described above will necessarily delay the Improvement and the construction of homes within that Subdivision. Accordingly, the developer, I am informed, has withdrawn his prior offer of deeding the Wells to the Town without cost and stated that if the Improvement cannot proceed in a timely manner he will form a Transportation Corporation and develop and filter the Wells himself. I am additionally informed that Meadowood Development Corp. has made a new offer to the Town, that being an offer under which Meadowood Development Corp. would develop the Wells in the manner set froth in the September 15, 2000 Amended Map, Plan and Report and provide a filtration system therefore, such filtration system to be approved by Jay. Thereafter, the developed and filtered Wells would be sold to the Town for the Improvement for a cost of $450,000, which cost is slightly less than the cost set forth in the September 15, 2000 Amended Map, Plan and Report for the Wells exclusive of filtration. Under this proposal only a Plan and Report amendment and change in plan public -hearing-fojlowedby Town BDard-approval would be required, a procedure significantly shorter than that set forth above. This offer and construction would permit the development and filtration, I am further informed, of the Wells on a timely schedule, substantially in accordance with that originally proposed, and would suit the needs of the Town as well as those of the developer for timeliness. Two questions have been asked of me concerning this proposal: (1) whether the purchase by the Town of the developed and filtered Wells is subject to permissive referendum, and (2) whether the developer's development and filtering of the Wells could be construed as an evasion of competitive bidding. With regard to the first question, in our opinion the acquisition of the Wells, including filtration, would not be subject to competitive bidding. The powers of the Town Board with respect to a water improvement area established pursuant to the provisions of 209(q) of the Town Law are set forth in Section 198(3) of the Town Law. That Section provides, in pertinent part, ".... The town board may also acquire by purchase any existing water system, or a portion thereof .... for the purpose of supplying the inhabitants of a water [improvement area) in such town, but the cost of acquisition thereof shall not exceed the maximum amount stated in the petition or in the final order ...." Other provisions of Section 198 provide that powers are subject to permissive referendum. This provision 913594.1 ,4on. Constance 0. Smith Town Board — Town of Wappinger June 23 2001 Page 3 does not so provide. As a general rule of law, an action of a town board is subject to permissive referendum only where a statute so specifically provides. Given the absence of a provision providing that such an acquisition is subject to permissive referendum, we believe that the same is not. With respect to competitive bidding, the policy of the Sate, as set forth in Article 5-A of the General Municipal Law, entitled `Public Contracts", is that competitive bidding shall be required to assure the prudent and economical use of public moneys for the benefit of all of the inhabitants of the=State and to facilitate the acquisition of facilities and commodities of maximum quality at the lowest possible cost. An exception to competitive bidding applies to the purchase of a unique parcel of land which must be acquired for the specific needs of a project. Given the facts at hand, I believe the Meadowood well site is such a unique parcel that competitive bidding does not apply to the acquisition of the Meadowood well site. The sole question, therefore, is whether the Town would be perceived as violating competitive bidding by "permitting" the Meadowood Development Corp. to develop the well site and construct the requisite filtration. Under the facts presented to us, such action is not an option as the developer has stated, we are informed and as indicated above, that such a course of action will not be timely and will cause the developer harm and that he will not sell the undeveloped well site to the Town. Accordingly, the facts at hand would permit only the acquisition of the developed and filtered well site. As previously stated, the policy of the State with respect to competitive bidding and public works is r to assure the prudent and economical use of public moneys. The facts presented are that the acquisition of the developed and filtered Meadowood well site will cost the Town less than the acquisition ofthe undeveloped and unfiltered well site. Accordingly, such action cannot be stated as being in violation of the policy of the State, unless one offers a conspiracy theory under which the Town Engineer conspired with the Meadowood Development Corp. to provide a faulty estimate in his September 15, 2000 Amended Map, Plan and Report, a set of facts which is not only insulting to the parties but also not at all in evidence. According, in our opinion, based upon the facts set forth in this letter, while a court could conclude otherwise, we believe a court should conclude that the acquisition by the Town of the developed and filtered Wells is not in violation of Article 5-A of the General Municipal Law. I trust this letter will be sufficient for you needs at this time. Very truly yours, Thomas M. Rothman TMR:pds cc: Al Roberts, Esq. 913594.1 02/10/2003.WS A) $25,000 is hereby authorized to be transferred from the A Fund to the Technology Master Plan fund to temporarily cover preliminary bills until financing for the project is put into place. B) $25,000 is hereby authorized to be loaned from the B Fund to the Wappinger Sewer Improvement Area Phase 3B on a temporary basis to cover bills from preliminary Engineering costs, etc. until financing for the project is put into place. The foregoing was put to a vote, which resulted as follows: Joseph Ruggiero, Supervisor Robert Valdati, Councilman Vincent Bettina, Councilman Christopher Colsey, Councilman Joseph Paoloni, Councilman Vote Aye Vote Aye Vote Aye Vote Aye Vote Aye The Resolution is hereby duly declared adopted NEW BUSINESS Councilman Valdati moved to direct the Acting Assessor, Tom Logan to reevaluate the Etsnyre property at 165 Myers Corners Road. Seconded by Councilman Bettina Motion Unanimously Carried At this time, 9:41 p.m., Councilman Colsey moved to go into Executive Session to discuss Highway Personnel, seconded by Councilman Valdati and unanimously carried. The meeting reconvened at 9:52 p.m. with all board members in attendance. There was no action taken at the Executive Session Councilman Valdati moved to close the meeting, seconded by Councilman Colsey and unanimously carried The meeting adjourned at 9:52 p.m. 0 Gloria J. se Town Cl 15