Town of Tusten - Public Comment and Response - Zoning Law

8/3/2019 Town of Tusten - Public Comment and Response - Zoning Law

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APPENDIX 1 OF THE ENVIRONMENTAL ASSESSMENT FORM (EAF)

PACKET: COMMENTS AND RESPONSES

1

INTRODUCTION

This chapter summarizes and responds to all substantive comments received during the public review

period on the Draft Zoning for the Town of Tusten.1 The draft was prepared in accordance with theNew York State Environmental Quality Review Act (SEQRA), Section 8-0113, Article 8 of the

Environmental Conservation Law, set forth in 6NYCRR Part 617.

Public review of the Draft Zoning began on August 10, 2011 and concluded on October 21, 2010. On

August 10, 2011, when the Town Board declared their intent to be lead agency under SEQRA, the

written comment period was opened and the draft zoning document was made available for public

review on the town website (www.tusten.org), and on CD-ROMs and hard copies in the Town Hall and

the Western Sullivan Library. The Full Environmental Assessment Form (EAF), together with a

supplement narrative, and the draft zoning was circulated to interested and involved agencies. A public

notice advertising the availability of the Draft Zoning, the duration of the written comment period and

the date, time, and location of the public hearings was published in the River Reporterand the SullivanCounty Democrat. On September 12, 2011, the Town Board officially declared themselves lead agency

and set two public hearings on the zoningthe first public hearing was on September 26, 2011 and the

second public was held on October 10, 2011. The availability of the draft zoning document and

information on the public hearings were also published in the New York State Department of

Environmental Conservations Environmental Notice Bulletin.

Each public hearing gathered oral testimony from the public and from involved and interested public

and private agencies through the use of a stenographer and a microphone system. The public hearings

were conducted in the basement of the Town of Tusten Town Hall located at 210 Bridge Street in

Narrowsburg, New York. The written comment period remained opened for 72 days until the close of

business on October 21, 2011.

This chapter indentifies the individuals and organizations that commented on the draft zoning during

the comment period and then summarizes and responds to their comments. It consider all comments

made at the public hearings on September 26, 2011 and October 10, 2011 and all written comments

submitted during the written comment period, which ended on October 21, 2011.

LIST OF COMMENTERS

1. Olivia Grady, Narrowsburg, N.Y.2. Charles Hoffman, 10 Lackawaxen Road.3. Gary Packer speaking for Mr. Venner who owns property in the Town of Tusten

1The term comment is defined here as an observation focusing on a particular aspect of the proposed zoning

document which could be, for instance, a sentence, definition, Article, or section. As such, the spoken and written

narratives offered by members of the public at both public hearings and during the written comment period are

responded to in this section by the specific comments that comprised the verbal and written presentations. Hence

if an individual during their presentation focused on four aspects of the proposed zoning, the description to follow

offers a response to each observation separately.
http://www.tusten.org/http://www.tusten.org/http://www.tusten.org/http://www.tusten.org/


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4. Dick Crandall, Aspen Way, Narrowsburg, N.Y.5. Charles Petershein, the Catskill Farms, 42 Proctor Road, Eldred, N.Y.6. Kevin Vertress, Country Road 23, Narrowsburg, N.Y.7. Linda Slocum, P.O. Box 230, Narrowsburg, NY.8. Sean Mc Guinness, Superintendent for the National Park Service of the Upper Delaware Scenic

and Recreational River

9. Ned Lang, 67 Arena Court, Narrowsburg, N.Y. 1276410.Debbie Wasylyk, 69 Forest Pond Road, Narrowsburg, New York 1276411.Charles Blanchard, 101 Main Street, Narrowsburg, N.Y. 1276412.David B.Soete, Senior Resource Specialist, Upper Delaware Council, 211 Bridge Street, P.O. Box

192, Narrowsburg, NY 12764-0192

13. Johanna Spoerri, Narrowsburg, N.Y.14.Liza Phillips, 358 Gables Road, Narrowsburg, NY 1276415. Jim Stratton, the Flats, Narrowsburg, N.Y.16. Jane Luchsinger from Lava, Narrowsburg, N.Y.17.

Stephen Morse, Narrowsburg, N.Y.18.Sharon Chopping, Narrowsburg, N.Y.

19.Anne Willard, 58 County Rte. 132, Callicoon, NY 1272320.Peter Comstock, Head of School The Homestead School, 428 Hollow Road, Glen Spey, N.Y.

12737

21.Stanley Harper, Narrowsburg, N.Y.22.Brandi Merolla, 214 Mathias Weiden Dr., Narrowsburg, NY 1276423. Jason Simon, 166 Blind Pond Road in Narrowsburg, NY 1276424.Lance Brodmerkel, 10 Lackawaxen Road, Town of Tusten25.Penelope Morgan-Lohr, Narrowsburg, N.Y.26. Jane W. Prettyman, Honesdale PA27.Susan Sullivan, 7878 SR 52, Narrowsburg, NY 1276428.Weiden Lake Property Owners Association, P.O. Box 191, Narrowsburg, New York 1095629.Tina Spangler, Narrowsburg, N.Y.30.Star D. Hesse, 7698 State Route 52, Narrowsburg N.Y. 1276431.April Bidwell, resident, Town of Tusten32.Bruce R. Bidwell, 1303 Crystal Lake Road, Narrowsburg N.Y.33.Michael Eurey, Narrowsburg, N.Y.34. Amy Thompson Hock, Narrowsburg, N.Y.35.Ben Younger, 404 Gables Rd, Narrowsburg, N.Y.36.Arnold Melman, Weiden Lake, Narrowsburg, N.Y.37.Kevin Caico, Narrowsburg, N.Y.38.Francis Cape, 358 Gables Road, Narrowsburg, N.Y.39.Stefan Spoerri, 214 Mathias Weiden Dr., Narrowsburg, N.Y. 1276440.Mary Greene, 1258 Crystal Lake Road, Narrowsburg, N.Y. 1276441.Terrance Lohr, Weiden Lake, Narrowsburg, N.Y.42. Jan London, Narrowburg, N.Y.43.Karl Wasner, Narrowsburg, N.Y.44. James Gann, Narrowsburg, N.Y.45.Claudine Luchsinger, Town of Cochecton


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46. Jane Morris, Narrowsburg, N.Y.47.Doug Adler, 474 Crawford Rd., Narrowsburg, NY 1276448.Vera B Williams, Narrowsburg, N.Y.49.Kathy Mithell, 42 School Street, Narrowsburg, N.Y. 1276450.Rita Macrini, Narrowsburg, N.Y.51.Anne Adler, 474 Crawford Rd., Narrowsburg, NY 1276452.Benita Hack, Resident of Narrowsburg and NYC53.Richard J. Marcel, 266 Swamp Pond Rd., Narrowsburg, NY 1276454.Ron Littke, 3 Lake Street, Narrowsburg, N.Y.55.Kevin Vertrees, Tusten Concerned Citizens56.Peter Comstock, Lumberland Concerned Citizens57.Carol Roig, Highland Concerned Citizens58.Karen London, Bethel Concerned Citizens59.Andrew N. Krinsky, Tarter, Krinsky, and Drogin, LLP, Attorney at Law, 1350 Broadway, New York,

N.Y. 10018

60.Andrea Reynosa, Town of Tusten resident61.Carla Hauser Hahn, Management Assistant, Upper Delaware Scenic & Recreational River, NPS,274 River Road, Beach Lake, PA 18405

62. John Fischer, Vice President , Weiden Lake Property Owners Association63.Frank Bernarducci, Hoffman Road64.Matt Solomon, Cochecton, N.Y. and Main Street Business Owner in Narrowsburg, N.Y.65.Penelope Morgan Lohr66.Bob Wiegers, Owner of Eagle's Nest Estates67.Brenda Seldin, Narrowsburg, New York68.David Slottje, Attorney at Law, Executive Director, Community Defense Council, PO Box 898,

Ithaca, NY 14851

69.Carol Roig, Town of Highland70.Heidi Schneider, 38 Erie Avenue, Narrowsburg, N.Y.71.Steve Ritcher, 38 Erie Avenue, Narrowsburg, N.Y.72.Anna Bern, Narrowsburg, N.Y73.Anie Stanley, Luxton Lake74. Jane Morgan Puett, resides in Damascus Township but works in Narrowsburg, N.Y.75.Liza Phillips, Narrowsburg, N.Y.76.Francis Cape, Lava, N.Y.77.Andy Boyar, Town of Highland78.Tony Stafferi, Narrowsburg, N.Y.79.Glen Goldstein, Narrowsburg, N.Y.80.Robert Turner, Tusten Resident.81.Darryl Brasseale, Resident of the Town of Town of Cochecton and business owner in

Narrowsburg, N.Y. (Bridge Street).

82.Kathy Grady, Narrowsburg, N.Y.83.Terresa Steakley, Narrowsburg, N.Y.84.Allison Ward, Narrowsburg, N.Y.


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COMMENT 1: HiI'm Kathy's daughter. I'm 16 and I ought to be working on my homework right now

but I'm not because I'm here because it's important to me. It's ironic that the

homework I'm working on is a biology lab about the quality of water in certain areas

around us. We were talking about how algae cant survive if certain things are messed

up in the water, which they will be if we let heavy industry in. I'm for Article 14 becauseI don't want anything here tobe messed up for profit. That's not how we should do

things. It'sjust adding to the corporate greed that's driven all of AmericaWe're all in

debt now and it's obvious because some people just wanted more and more and more

and they didn't think about the smaller people that were suffering for it. And we the

smaller peopleI'm glad that other people from different towns are coming here to our

meeting because that's what we should be doing. We should be going to other towns.

We should be showing them how they can have an Article 14 of their own in their own

town, like in their planning, because this isn't where the river begins. It begins all the

way upstate. And if anything gets messed up there we suffer for it. Once again, we're

the little people, [but] we're all connected by [the river]. And you just can't protect one

portion of the river. It's not like the river is suddenly dirty upstream, it's suddenly clearwhere we don't havethe heavy drillingNo; it's all connected. And so that's all I have

to say (O. Grady).

RESPONSE: As stated in the Town of Tusten 2007 Comprehensive Plan, the vision of the town is as

follows: We see our community growing in a balanced, diverse manner that protects its

rural character by building on our strengths and historic roots.2 To uphold this vision,

the Zoning Rewrite Committee researched the development of Article 14 with the pro

bono assistance of the Community Defense Council legal team from Ithaca, New York.

This initiative was based on the premise that state law allows towns to protect their

residents since municipalities are mandated by the State of New York to protect the

health, safety, and welfare of residents. This logic is grounded in Frew Run Gravel

Products. V. Town of Carrollwhere the New York Court of Appeals found that municipal

zoning law regulated land use generally and, therefore, was not preempted by state

regulations for a particular industry. Paralleling this thinking is the finding that

municipalities can regulate private property through zoning to advance the public

welfare (Village of Euclid, Ohio v. Ambler Realty Co. , 272 U.S. 365 (1926)) and the

decision that a mere diminution in property due to zoning regulation is not a taking

(Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964)). Therefore, the

development of Article 14 by the zoning rewrite committee is seen as a proactive

measure to mitigate vested rights should case law yield a plain-meaning interpretation

of ECL 23-0303 further underscoring the jurisdiction of municipalities to regulate land

use involving the public health, safety, and welfare which falls outside the State of New

Yorks regulatory program.

2 Town of Tusten 2007 Comprehensive Plan. 2007. Sullivan County Division of Planning and Environmental

Management, Monticello, New York, pg. 2.


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COMMENT 2: I have to say that I am very concerned about a revision thats taken a document that

was 54 pages and now has gone over to 207. I think its taken something that was very

simple, very basic, with good understanding, into something that now is going to take a

considerable amount of time, effort and money to enforce. I think its taken a working

document and shifted focus (Hoffman).

RESPONSE: The increased page length of the zoning document is attributed to two factorsnew

subject matter given the changing times since the last zoning update and conversion of

narratives into tabular form to facilitate a better summary of uses and their respective

requirements. In reference to item one, the document includes new definitions relevant

to timely issues facing the town and many definitions had to be revised requiring

additional text to assist planning and zoning board members in their review of future

applications that will require clarification of terms as it relates to the schedule of district

regulations in Article IV. Furthermore, the zoning draft includes specific performance

standards for commercial and light industrial uses. As noted in the Environmental

Assessment Form (EAF) narrative, the proposed zoning also includes additional Articlesthat the zoning rewrite committee felt was critical in upholding the objectives of the 2007

Comprehensive Plan, which includeZoning Vested Rights and Explicitly Prohibited Uses.

In reference to item two, the zoning committee wanted specific narratives converted to

tabular form to make it easier for planning and zoning board members and the public to

visually match specific uses with specific land use requirements. Indeed, a trade-off of

this approach was a longer document. For example, unlike the previous version of the

zoning, which did not incorporate the schedule of district regulations in the body of the

zoning text, the new zoning in Article IV incorporates the schedule of district regulations

in tabular form to allow for a more user friendly visual of the regulations by district. The

same concept was applied to the article on sign requirements. Again, a trade-off is this

approach was a longer document, but nonetheless a format that facilitates a better visual

presentation in understanding the zoning requirements in a more expeditious manner.

COMMENT 3: Next, I think that the Title 14 or Chapter 14, or whatever youd like to call it, is being

driven by outsiders (Hoffman).

RESPONSE: The research and subsequentdrafting of Article 14 was not driven by outsiders; the idea

was advanced by the zoning rewrite committee who are residents of the Town of Tusten.

The rational was to explore the applicability of harmonizing the Statue of Local

Governments, which establishes Municipal Home Rule, and ECL Article 23, title 3 in

upholding the towns mandate of protecting the health, safety and welfare of its residents

and meeting the goals of the Town of Tusten 2007 Comprehensive Plan through its zoningregulations.

COMMENT 4: You have families here that have owned property for 150, 200 years that have paid taxes

all that time. And if they decide that they want to sign a lease or theyre entertaining it,

let them investigate it. But what youre doing is circumventing their right as property

owners and denying them the access to the mineral rights underneath them that theyve


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paid for over, you know, a great many years, and basically doing condemnation without

compensation. And you need to be careful that you might be opening up a huge pool of

litigation. So I would suggest that until those cases are decided that that section be

totally removed (Hoffman).

RESPONSE: Article 14 is based on the premise that state law allows towns to protect their residents.

This logic is grounded in Frew Run Gravel Products. V. Town of Carrollwhere the New York

Court of Appeals found that municipal zoning law regulated land use generally and,

therefore, was not preempted by state regulations for a particular industry. Paralleling this

thinking is the finding that municipalities can regulate private property through zoning to

advance the public welfare (Village of Euclid, Ohio v. Ambler Realty Co. , 272 U.S. 365

(1926)) and the decision that a mere diminution in property due to zoning regulation is not

a taking (Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964)). Therefore, the

development of Article 14 by the zoning rewrite committee is seen as a proactive measure

to mitigate vested rights should case law yield a plain-meaning interpretation of ECL 23-

0303 further underscoring the jurisdiction of municipalities to regulate land use involvingthe public health, safety, and welfare which falls outside the State of New Yorks regulatory

program.

COMMENT 5: The other simple thing that Im concerned about is I dont find that this document is very

business friendly, home business friendly, in that as an educator I could only tutor one

student at my home at any one time. If Im preparing a group of students, Ive tutored

your grandchildren, two and three at your kitchen table at a time; I couldnt do that under

this zoning law. It would be illegal. Thats you know, if somebody has an e-Bay or an

antique business there couldnt be any retail business outside of this area. Again, under

current zoning that may be permitted. Under this now new zoning I dont think that that

would be permitted under my interpretation of the document. Again, there are some

people Im sure on this board that havent even read 207 pages. I had both documents

open on my computer, side by side, doing comparison. It was it was extremely

difficult, and I have a Masters degree. I dont know how youre going to enforce it

(Hoffman).

RESPONSE: This observation is inaccurate. Section 6.7.1 favors the development and sustainability of

home occupations while preserving the residential character of neighborhoods. To begin,

the floor area allowed is very liberalnot to exceed more than 50% of the ground floor

areawhen compared to other towns in New York State where, for example, the floor area

for a home occupation cannot exceed 30% of the ground floor area. Next, the zoning

allows for tutoring of more than one student in the home; the language specifically states

Tutoring for not more than five (5) students at a time. This threshold is very consistentwith research on tutoring and student performance, where small groups of 2-6 students are

recommended. Hence, tutoring two and three students in the home as mentioned above is

permissible. Finally, Section 6.7.1 allows for certain home occupations, tutoring for

example, as an accessory use to relieve the burden on the applicant to apply for a special

use permit.


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COMMENT 6: Im not a resident of the townI dont own property in the town. I am here [for

someone] who does own property in the town. It might not be exactly in keeping with

what Dr. Pammer had mentioned before, but weve come before the Planning Board for

several months, and several months ago, and what were looking for here is an expansion

of business in the town, and weve asked the Planning Board to consider an expansion ofthe Roadside Business area. [The individual is] developing a piece of property on which

there is significant amount of roadside business that is available, that adjoins roadside

business properties. We would like to incorporate that, have that annexed. Its vacant

land. Its immediately across from a roadside business and its immediately adjacent to

roadside business. I hear talk of a hotel. Theres a very significant road out on 97. It isnt

like these little streets. It would be much more conducive, by all means, to attract a

hotel. And we just dont know exactly what procedure we should take, what board we

should come before or where we should go with this. We would like to come to your

group, if thats at all possible, to look at it. And I think its probably a good time to do it

right now (Packer).

RESPONSE: Throughout the zoning rewrite process some discussion focused on reconfiguration of the

Roadside Business District (RB). It was the consensus of the committee that a possible

modification of the RB would occur after the current draft zoning is approved due to the

extensive research and discussion on modifications in the text along with attention to

changes in the Downtown Business (DB) District. In the meantime, however, perhaps the

owner of the property should request another meeting with the Planning Board to discuss

the parcel, or parcels, in question, and their adjacency to the existing RB District.

However before the meeting commences, the property owner should be prepared to

offer the board the legal description of the property to be rezoned, the proposed use, and

acreage of the parcel(s). This information, along with a comprehensive review of the

existing RB District by the Planning Board can lay the groundwork for a possible zoning

amendment of the RB District in 2012 or beyond. Understand that a modification in the

RB District would require another public hearing and approval by the Town Board.

COMMENT 7: Good evening. The only comment I have is in the enforcement section of the previous

zoning we had an unclassified misdemeanor which entitled a person to a jury trial and we

ended up with thousands of dollars in legal fees and in the Court of Appeals. I think that

any violation of the zoning ordinance, first offense, should be allowed as a civil

compromise. The Town would get whatever funds are generated by the compromise. We

would take criminal stigmatism out of it. And then if it goes on to a second violation you

can impose a criminal case. It might cut down on some of the unnecessary paper work

and legal fees if you do the civil compromise (Crandall).

RESPONSE: Comment noted. Indeed some municipalities resort to a misdemeanor compromise to

mitigate violations while avoiding potentially costly litigation. This strategy seeks to

facilitate an agreement between a violator and a municipality in which the municipality

recommends that misdemeanor charges involving the violator be dismissed upon

agreeing to specific terms to mitigate the violation and payment of a fine. Misdemeanor

compromises are not always a panacea to resolving violations of specific offenders in that


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parties do, from time to time, violate the terms of the agreement. Hence, compromises

need to consider new charges being issued if agreements are not meet. It behooves the

town to retain an attorney who is well versed in these compromises that can contain

court costs while addressing violations. Finally, it is recommended that the feasibility of

misdemeanor compromises consider the violators past compliance history and degree ofculpability (i.e., whether the violator knew or should have known of the requirements of

the zoning regulation).

COMMENT 8: We own land in Tusten, as we do in Lumberland and Highland. And having attended a few

of these in neighboring towns, this is really a refreshing approach to community dialogue.

Id like to thank the Zoning Rewrite Committee, the Town Board and Dr. Pammer for that

refreshing approach because it is fostering, I think, a non-confrontational dialogue which

has been lacking other places. And Id like to encourage you to continue with the

moderation and the intelligent approach to the gas drilling issue because I think there is

real litigation risks and theres no reason why the Town of Tusten or the Town of

Lumberland or the Town of Highland need to be in the forefront of legal cases nowworking their way through the court system. Thank you (Petershein).

RESPONSE: Please see the response to COMMENTS 1 and 4.

COMMENT 9: I want to read something out of the proposed draft GEIS stuff. This is under Section

8.1.1.5, talking about local planning documents. It says:

The Departments exclusive authority to issue well permits supersedes

local government authority relative to well citing. However, order to

consider potential significant adverse impacts on land use and zoning as

required by SEQRA, the EAF addendum would require the applicant to

identify whether the proposed location of the well pad or any other activity

under the jurisdiction of the department conflicts with local land use

regulations, plans or policies. The applicant would also be required to

identify whether the well pad is located in an area where the affected

community has adopted comprehensive plans or other local land use plans

and whether the proposed action is inconsistent with such plans. For

actions where the applicant indicates to the department that the location

of the well pad or any activity under the jurisdiction of the department is

either consistent with local land use laws, regulations, plans or policies, or

is not covered by such local land use regulations, plans or policies, the

department would proceed to permit issuance unless it receives notice of

an assertive conflict of a potentially impacted local government.

My reading of this is that New York State is to support home rule and that it s important

for you guys to continue on the path in putting some kind of process in place. For towns

that arent doing anything, this says is that they can come in and that [the companies]

dont have to, the companies do not have to basically specify that they are in conflict with

local zoning or local regulations. And given that we have a comprehensive town plan that


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talks, you know, that went through a four-year process, and that the majority of the

people in this town really want to maintain the rural character and the heritage, that

what you guys are doing I commend and I hope that we don t remove the language

regarding industrial language or the industrial uses, that you continue to refine it so that

it is applicable and protects this town in the future. Thank you (Vertress).

RESPONSE: Please see the response to COMMENTS 1 and 4.

COMMENT 10: Okay. I have read the draft zoning code and the town zoning map amendment. One,

regarding the proposed expansion of the Downtown Business District, it goes to Erie

Avenue, my concern is that there is inadequate parking for the current uses in place, let

alone for any proposed expansion of business use, and there are potential negative

impacts on existing residential properties, particularly on the lower end of Erie Avenue

past School Street (Slocum).

RESPONSE: The proposed zoning, which calls for an expansion of the Downtown Business District(DB), is a direct legislative action by the Town of Tusten that sets forth specific

guidelines for the Planning and Zoning Boards to follow when reviewing proposed

projects in the zoning districts of the town. Therefore, future projects proposed for the

DB District will be subject to review on a case-by-case basis using the new regulation

standards in Article IV (Schedule of District Regulations), Article V (Supplementary

Regulations for Buildings and Lots, and Article VI (Supplementary Regulations Pertaining

to Specific Uses). As such, applicants will be required to show potential impacts on

surrounding residential properties and parking requirements under New Your State

Environmental Quality Review (SEQR) and the site plan process outlined in Article VIII

(Special Use and Site Plan Review Criteria). This review, in turn, will require that the

applicant meet specific conditions to mitigate impacts on surrounding land uses.

COMMENT 11: Portable storage units: Thank you for addressing this very important issue. It does not,

however, address what the Town may do about any of the existing portable home

storage units already in use (Slocum).

RESPONSE: Indeed. However, alterations or attempts to enlarge existing units would be prohibited.

Enforcement, in this case, would be initiated by a complaint to the Code Enforcement

Officer (CEO).

COMMENT 12: Lighting and glare: Unfortunately, a globe covering a bulb does not adequately prevent

lights glare from negatively impacting adjacent properties. Shades on bulbs should be

required and down lighting standards required, as well, to protect adjacent propertiesfrom unwanted glare, especially with lights mounted at 15 feet high (Slocum).

RESPONSE: Comment noted. The first criterion in Section 6.13.4 will be revised to require full cut-

off lighting fixtures that direct lighting down toward ground surfaces.


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COMMENT 13: [Finally,] EAF or SEQRA Forms should be required for any proposed driveway that is

longer than 200 feet due to the potential negative impact of tree removal, drainage and

flooding issues and construction of impervious surfaces within the Town of Tusten that

may affect adjacent roads and properties (Slocum).

RESPONSE: Driveways, specifically those that exceed 200 feet, typically occur in two situations

proposed subdivisions and proposed construction of a single family house where, on the

average, the former yields a higher probably of longer driveways. As such, proposed

subdivisions require the completion of a full Environmental Assessment Form (EAF)

because under the New York State Environmental Quality Review Act (SEQRA) this type

of development is considered a Type I Action because this type of development carries

with it a presumption that it is likely to have a significant adverse impact on the

environment and may require an Environmental Impact Statement (EIS). However, the

planning board must evaluate information contained in the EAF, and additional

applications, filings or materials, against the criteria in 617.7 to determination if an EIS is

required. Nonetheless, an EAF is required for a subdivision to help the Town PlanningBoard determine, in an orderly manner, the extent to which a driveway, and other

attributes of a subdivision, have a significant impact on the environment. In the end,

this assessment assists the Planning Board in determining the applicants requirements

to mitigate impacts as a condition for approval.

An applicant who is proposing construction of a single family home and its accessory

attributes such as a driveway, and detached structures, etc. is not required to prepare

an EAF nor an EIS. The rational under SEQRA is that this type of development does not

have significant adverse impacts on the environment. Nonetheless, the applicant must

comply with the proposed zoning ordinance, which requires a sketch plan conference

with the Planning Board, along with the Code Enforcement Officer, to review the plan

for the parcel and assess if variances are needed and if the proposed project meets the

steep slopes provision in 6.17.10 (Development on Steep Slopes). During this period of

time, issues such accessory attributes to the principle use will be reviewed as will the

distances and locations of septic and water. If it is found that certain conditions must be

meet, the applicant will be required to seek a specific use permit from the Planning

Board.

COMMENT 14: Good evening. My organization represents the current and future generations that live

in Tusten and all your visitors that come here to your town. And its just Im encouraged

that I recommend that you follow the guidelines, the land and water use guidelines,

that are in the river management plan. They were well thought out. They were very

they were fought over back in the late 70s and 80s, and theyre good. So just reviewthose and incorporate them into the plan, into your planning document. Im

encouraged to see that Article 14 does include prohibition of heavy industrial uses in

the River District, so Im encouraged to see that and hope that follows through

regardless of how Article 14 ends up, that the River District does have those restrictions

and follows the river management plan. The future is bright for and whats going to

provide opportunities, economic opportunities, are outstanding natural resources:


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Clean water, clean air, quiet nights, dark skies. Those kinds of things are really

important in the future of Tusten. And its going to I look forward to working with

you and the Planning Board if you have any questions on the River District. So I

appreciate it. Thank you (Mc Guinness).

RESPONSE: Comment noted.

COMMENT 15: Good evening. I guess everybody knows me pretty well. Did you receive the

Comprehensive Plan Review that I sent you today, Peg? Listen you know, I think when

you look at this new zoning you have to go back to the Comprehensive Plan and look

at the basis for which the zoning, this new zoning, proposed zoning, comes from. And

when I go back and I look at the basis of the Comprehensive Plan I look my intent is

that this town remain sustainable, its economy viable. When I go back and I review

the Comprehensive Plan I find those parts of it missing. The planners and the

committee people of the Comprehensive Plan did a wonderful job. Their hearts and

minds are in it and I commend them. Not condemn, commend. But the one thingthats missing is the stakeholders of this town, the business people. There are five

stakeholders which Ive outlined in my review, Peg. And I want you to review, you

know, pass that around (Lang).

RESPONSE: The Town of Tusten 2007 Comprehensive Plan underscores the importance of

sustainability and economic vitality of the town. Furthermore, survey data and focus

group feedback gathered to develop the plan revealed that the rural character and

scenic river corridor were major contributors to the economic vitality of the town in that

these natural amenities played a major role in influencing people to not only purchase a

home but, in some cases, purchase a main street business. It is also important to

emphasize that the comprehensive plan was developed using a board-based

stakeholder process that entailed a systematic random sample of homeowners and

businesses in the town, three public focus groups, and two public hearings. The focus

groups and public hearings were publicized in the local newspapers to encourage public

participation. These venues offered ample opportunity to provide review, commentary,

and feedback on the plan.

COMMENT 16: You know, if you look, and as any planner would tell you, that the residential component

of a township, they cost more than the commercial people do. So a commercial entity is

a boom to the local tax base and a residential unit is basically a cost to the local tax base

and the schools and the county, and even the state (Lang).

RESPONSE: During the development of the Town of Tusten 2007 Comprehensive Plan, the findingsfrom the Cost of Community Services in Sullivan Countywere shared with the public.3

3Pammer, William J. and Marc A Baez. 2006.A Cost of Community Services Study for Sullivan County, N.Y. Sullivan

County Division of Planning and Community Development, Monticello, N.Y. This study was conducted while the

countywide strategic plan, Sullivan 2020, was being developed and includes fiscal impact data of different land


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The study showed that for every dollar of revenue generated among residential land

uses it cost the Town of Tusten $1.27 to provide municipal services to residential

properties. In the other hand, for every $1 collected in taxes it cost the town 45 cents to

provide municipal services to commercial properties. Similar findings were established

for agricultural and open space land uses. This study, however, cautions that townsneed to plan carefully to avoid the hidden costs of development. For example,

community leaders and town officials try to use these studies as a rationale to look to

new commercial developments as a way to bring in more tax revenues. On a short-term

basis, this strategy works but costs eventually accumulate. If developments are not

properly planned, they will often end up costing much more than they bring in. In

addition to unplanned growth straining town budgets, there are other costs of

development that include traffic congestion, noise, crime, pollution, and change in

community character. Perhaps a major lesson taken from the Cost of Community

Services in Sullivan Countyby the Tusten Comprehensive Planning Committee was that

innovative development alternatives were necessary to balance infrastructure costs and

the rural character of the town. As such, the proposed zoning proposes compactdevelopment (See Article VII, Section 7, Conservation Subdivisions), and investment in

the Downtown Business (DB) and Roadside Business Districts (RB) with emphasis on

mixed uses conserving open space and maximizing the efficient use of taxpayer dollars.

COMMENT 17: So if, you know, this new zoning as I see it, forget about, you know, forget about the

gas issues, the, you know, the sign issues and all these other crazy issues. The No. 1

problem, the biggest threat we have to this town is our taxes. Our taxes are so sky high.

And if you dont introduce businesses, if you dont propose a basis for businesses such

as mine to come into this town, not force them out, or in this new zoning, God forbid,

you cant even farm, I mean where this coming from is? Land application is not allowed.

Three of the five stakeholders in this town, if we came to this town to put our business

in this town wed be told to go elsewhere. What kind of a zoning plan is that? That is

nothing but a catastrophe waiting to happen (Lang).

RESPONSE: Rising taxes, along with higher tax burdens, are a state-wide issue, and this phenomenon

is not caused by zoning. Rising property taxes, coupled with increased tax burdens, are

attributed to taxable property going off the rolls and the second is schools which

consume more public resources than other types of local governments.4 As noted in the

uses for all fifteen towns in Sullivan County, N.Y. This source is located at

http://webapps.co.sullivan.ny.us/docs/dpem/resources/CostofCommunityServicesStudy.pdf.

4See DiNapoli, Thomas. 2006. Local Government Issues in Focus: Property Taxes in New York State. Office of the

New York State Comptroller, Division of Local Government and School Accountability, Albany, N.Y. This source is

located athttp://www.osc.state.ny.us/localgov/pubs/research/propertytaxes.pdf.
http://webapps.co.sullivan.ny.us/docs/dpem/resources/CostofCommunityServicesStudy.pdfhttp://webapps.co.sullivan.ny.us/docs/dpem/resources/CostofCommunityServicesStudy.pdfhttp://www.osc.state.ny.us/localgov/pubs/research/propertytaxes.pdfhttp://www.osc.state.ny.us/localgov/pubs/research/propertytaxes.pdfhttp://www.osc.state.ny.us/localgov/pubs/research/propertytaxes.pdfhttp://www.osc.state.ny.us/localgov/pubs/research/propertytaxes.pdfhttp://webapps.co.sullivan.ny.us/docs/dpem/resources/CostofCommunityServicesStudy.pdf


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supplement to this Environmental Assessment Form Packet, the zoning recognizes the

multi-functionality of agriculture, where some activities take on light industrial

characteristics that need review of the planning board to mitigate impacts. This

requirement is not an anti-business philosophy but attention to maintain community

character to make Tusten attractive as a place to live and do business because a lack ofattention to the quality of life will only stifle future investment in Tusten.

COMMENT 18: And Ill tell you what. You cant just outlaw certain industries. Ive been doing this. Ive

been in the land application biosolids business since 1991. Ive been through litigation.

You know, not only in Pennsylvania, some in New York, but basically in Pennsylvania.

They have the same issues as we have Okay? They tried to outlaw my industry from

certain townships by usurping the states laws and then adding their own individual laws

on top of it, and its illegal and its wrong. And its going to cost you people money, its

going to cost me money. Myself and my company spend $70,000 a year in this town for

our taxes, local, school and county taxes. Okay? You are setting this town up for

catastrophe with this zoning. And please, Ill put my, a very detailed overview of myconcerns with the new zoning as Ive done with the Comprehensive Plan. Please read

them, take them to heart, call me. But please understand that this, you know, this is, I

believe, nothing more than a threat to the viability and sustainability to the people of

this town (Lang).

RESPONSE: Along with creating districts devoted only to residential, commerce, or light industrial,

zoning ordinances may permit or prohibit certain uses. Also see the response to

COMMENTS 1 and 4.

COMMENT 19: Id just like to [emphasize] the building height issue Just currently, the building height

is 28 feet. Thirty-five is the surrounding towns. Twenty-eight you get very quickly

depending on the grade of a house (Petershein).

RESPONSE: Comment noted. Consideration will be given to maximum building height of 35 feet for

residential districts as that height appears to be the standard. The zoning rewrite

committee will discuss the feasibility of changing the recommended height of 28 feet in

the RB and DB Districts. While deliberating on issue, however, we do need to conform to

the requirements of the 1986 Upper Delaware River Management Plan (RMP) required by

the U.S. Secretary of the Interior under Public Law 95-625.

COMMENT 20: Thank you. I just had a couple more things that I wanted to touch on. I have to agree

with Ned on this, that I too, find this very anti-business, especially home business. I

went back to the tutoring (Hoffman).

RESPONSE: Please see Response to COMMENT 5.

COMMENT 21: At one time in this town, and still in this town, you can have as many as five dogs. Now

youre knocking it back to three. If youre going to knock it back to three then why dont

you have a lot size, specific lot size? A quarter acre, you can have three. But if youve


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got 92 acres or 100 acres and you want to have five dogs, three horses, whatever you

want, you should be able to do that, absolutely. You should not be limited to just three

dogs or three whatever. I thought that that was very, not demoralizing, but for lack of a

better word, you couldnt even have a kennel if you wanted to have a kennel or have a

dog breeding business if thats what you wanted, or dog grooming or anything like that,not even mention horses or pigs or whatever you want to do in the ag business

(Hoffman).

RESPONSE: Please see the response to Comment 81. Also note that according to the American

Veterinary Medical Association (AVMA), the average number of dogs per household is 1.7

and for some surrounding towns they allow 3 dogs over 6 months old. 5 Hence, the dog

limit in the proposed zoning exceeds the national average and is a somewhat more liberal

than other towns in the county in that allows for not more than 3 dogs over 4 months

old. As for kennels, specifically commercial kennels for breeding, these uses are a special

use in the R-1 District, which is the largest zone in the town. Finally, the proposed zoning

allows agricultural and farm operations as a use by right in the R-1 and R-2 Districts.

COMMENT 22: And again, if youre going to start limiting agricultural businesses, be it dogs or things like

that, youre opening up yourself for litigation. I have no doubt about that (Hoffman).

RESPONSE: The proposed zoning does not limit agricultural businesses in the Tusten. As noted in the

response to Comment 20, agricultural and farm operations are a use by right in the R-1

and R-2 Districts.

COMMENT 23: I find the signage requirements ambiguous. We cant even enforce our current zoning.

How are we going to enforce a document thats 207 pages written for Westchester and

not for a small little town like ours? (Hoffman).

RESPONSE: The proposed zoning has compiled the sign requirements in a tabular format to make it

easier and clearer for the public to understand what is required and it offer ease of

enforcement by mitigating ambiguity through the use excessive text.

COMMENT 24: I appreciate the time that the people put on it, but I don t think they thought through

the small business and home occupations (Hoffman).

RESPONSE: Please the response to COMMENT 5.

COMMENT 25: For some people that may have signs on their cars, I know, I think the Comprehensive

Plan wrote that out, where you could have a sign on your car, could be considered atraveling sign, do not fall under this, as an exception. But if you have some other

business that, you know, or different kind of sign, you may find yourself having a

problem (Hoffman).

5American Veterinary Medical Association. 2007. U.S. Pet Ownership and Demographics Source Book.


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RESPONSE: The purpose of the revised sign section was to instill standards in sign presentation to

maintain the rural quality of the Town, which was a cornerstone of the Town of Tusten

2007 Comprehensive Plan.

COMMENT 26: And I think like Ned said, too, depending on what businesses, you wouldnt want to

come to this town. And maybe thats what certain people want. Like I find it interesting

that the National Park Service here wants starry skies and fresh air. And I do want that,

too, but I want to have a place for kids to grow up and have a place where they can go

to college and come back and grow within the community. Right now theres no

business here. Theres nothing anchoring people here anymore (Hoffman).

RESPONSE: Please see responses to COMMENTS 15 and 16.

COMMENT 27: I think I find it very interesting that Mr. Hilton is here. We have a school thats bought

and paid for by this town and yet we cant even get it for local businesses. What a greatidea, to have local businesses in that school. But we cant get that together. The board

doesnt want to, isnt pursuing that, it doesnt seem like. We have some board

members that are moving. I personally dont think they should be reviewing this whole

Comprehensive Plan. I think they should recuse themselves from it because theyre not

a vested stakeholder in it. Thats all I have to say. Thank you (Hoffman).

RESPONSE: The town has not purchased the school; a private developer has purchased the school.

Long before the school was sold to a private party, the comprehensive planning process

sought to have to the Downtown Business expanded with the anticipation that if the

school were bought it could be developed as a hotel.

COMMENT 28: Ive been born and raised here, and I have read the whole 200 pages. It is anti-business,

it is anti-family, it is anti-people coming back here. You say you want people to stay

here and raise a family. Theres nothing to build on here to raise a family and support

that family with. I agree with the height of the building. As a builder, 28 feet is

unrealistic. Also, your clearing, if youre building a new home, 20 percent is not enough

by the time you clear for the house, a septic, a well, a leach field and an area around

the house so the trees are not falling on your house. I think you need to relook some of

this zoning. It is a little overboard (Wasylyk).

RESPONSE: Please see the response to COMMENT 19 and the percent of lot clearing can be revisited

although the comment is not specific about the zoning districts in question, and any

changes by the zoning rewrite committee would have to conform to the 1986 RiverManagement Plan required by the U.S. Secretary of the Interior under Public law 95-

625.

COMMENT 29: Im not a property owner, Im a hobby owner. I rent in town. Because Im

underemployed, I was fortunate enough to be able to work for the census in 2009,

2010. I noticed in the planning that there was information from 2000. In 2009, 2010


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we found that in this area the incidents of absence in homes on April 1 st, Census Day,

were 62 percent. The addresses, the homes in this area were empty, 62 percent on

Census Day. Well, they could be in Florida, they could be for rent, they could be for

sale, they could be a second home. And dont think anybody here is speaking for the

second homeowners, although the builders of the second homeowners are speaking.If you look at an aerial map of the area, the roads do not crisscross this area, the Town

of Tusten, like they do in Delaware and further north. This is not a farming

community. There were chicken farms and a few things, but this has been woodland,

and the Boy Scout camp is certainly the largest part of the town thats undeveloped. I

think that the voice of the second homeowner should be at least addressed in terms of

the business which is here, which is the second homeowner. Main Street does not get

its business from the full-time residents, Pecks Plaza does. And this is just one little

village in the Town of Tusten. I think that the second homeowner pays at least as

much taxes as a previous speaker, but not certainly as one check coming in. I think its

really important to consider the spread of the ownership and the voices of all the

owners speaking as a non-owner (Blanchard).

RESPONSE: Second home owners do indeed play a significant role in Sullivan County and the Town

of Tusten. See Second Home Owner Study: Assessing Attitudes, Consumer Behavior

and Housing Tenure in Sullivan County published in 2008 by the Sullivan County

Division of Planning (www.co.sullivan.ny.us/Default.aspx?TabId=3259 ).6

COMMENT 30: The 1986 Final River Management Plan (RMP) for the congressionally-designated Upper

Delaware Scenic and Recreational River identifies Scenic River Segments,

Recreational River Segments, and Hamlet Areas in the river corridor. The RMP

implements the criteria for these segments through the Land and Water Use Guidelines

(pages 114 through 134). The Scenic Segments are the most restrictive. For land in the

river corridor, the Towns land use regulations are based on the RMP and those

guidelines. Both the Towns 1993 and 1998 Zoning Laws included a Scenic River (SR)

District and a Recreational River (RR) District and were determined to be in

substantial conformance with the RMP.

RESPONSE: Comment noted.

COMMENT 31: The Towns 2007 Comprehensive Plan mentions both the Scenic River (SR) District and

Recreational River (RR) District as being in the Towns Zoning Law. In the draft Zoning

Law, there are at least nine (9) instances where the Recreational River (RR) District is

incorrectly identified as the Residential River (RR) District. All references to the RR

6Pammer, William, Ethan Cohen, Jill Weyer, Heather Jacksy, Jennifer Mall, and Ryo Kiyan. 2008. Second Home

Owner Study: Assessing Attitudes, Consumer Behavior and Housing Tenure in Sullivan County. Sullivan County

Division of Planning and Environmental Management, Monticello, New York. This study offers a comprehensive

survey and assessment of narrative feedback from second homeowners in Sullivan County a issues ranging from

purchasing behavior in the county to concerns about local policy and planning issues.
http://www.co.sullivan.ny.us/Default.aspx?TabId=3259http://www.co.sullivan.ny.us/Default.aspx?TabId=3259http://www.co.sullivan.ny.us/Default.aspx?TabId=3259http://www.co.sullivan.ny.us/Default.aspx?TabId=3259


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District as the Residential River District should be changed to Recreational River

District.

RESPONSE: This section will be revised as recommended.

COMMENT 32: Page 26 The last sentence of the definition of Planned Unit Development (PUD)at

the top of the page refers to Section 7.3. The correct reference should be Section 7.2

(Soete).


COMMENT 33: Pages 29 and 30 Under sub-sections a and b, should the Scenic Overlay (SO)

District be mentioned with the other zoning districts? (Soete)

RESPONSE: As an overlay district for these areas it is implied.

COMMENT 34: Page 36 Regarding the definition of Zoning Map, should it be referenced as the

Official Zoning Map available at the Town Hall, as mentioned in Section 3.1 on page

37? (Soete)


COMMENT 35: Page 37 Under Section 3.0, regarding the RR district, change Residential River

District to Recreational River District. (Soete and NPS)


COMMENT 36: Page 37 Section 3.0 states that there are two overlay districts. The 1998 Zoning Law

had three overlay districts, including a Wellhead Protection (WHP) Overlay District.

Should the WHP District be included in the proposed Zoning Law? (Soete and NPS)

RESPONSE: Yes. This overlay district will be added.

COMMENT 37: Page 38 Regarding Section 3.2, Interpretation of Zoning District Boundaries, it would

be useful if the Congressionally-designated Upper Delaware Scenic and Recreational

River corridor boundary where shown on the Zoning Map. It is possible that several

small areas of the R-1 District maybe within the river corridor, and that some allowed

uses might be incompatible. It would also be helpful if the overlay districts are shown on

the Zoning Map (Soete and NPS).

RESPONSE: Agreed. We will work to include river corridor in the final zoning document.

COMMENT 38: Page 39 Regarding the INTENT of the Scenic River District SR, there should only be

a reference to the Scenic Segment of the RMP, which is more restrictive than the


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Recreational Segment. A reference to Section 6.7 under the INTENT section might also

be appropriate (Soete and NPS).


COMMENT 39: Page 39 Special Uses listed for the Scenic River District SR include, Agribusiness,

Agricultural, On-Site Processing, and Value-Added Wood Processing. Depending on

the scope of these Special Uses, it is possible that they could be considered as Other

Commercial Development or Industrial Uses which are incompatible in Scenic

Segments (Soete and NPS).

RESPONSE: This item will be discussed among the zoning rewrite committee and reassessed.

COMMENT 40: Page 39 Under Development Standards for the Scenic River District SR, it states

that Lot coverage is 1 acre or 15%, whichever is less. The RMP states: A 10% (or

comparable square feet) maximum lot coverage, or impervious surface limitation onsmall lots. Employment of a sliding scale decreasing the allowable percentage of

impervious lot coverage as the lot size increases.(Soete and NPS)


COMMENT 41: Page 40 Change Residential River District RR to Recreational River District RR.

(Soete and NPS).


COMMENT 42: Page 40 Regarding the INTENT of the Residential River District RR, it should state,

The RR Recreational River District is intended to compliment the Upper Delaware

Scenic and Recreational River (UDSRR) as defined and designated as a Recreational

Segment in the November 1986, Upper Delaware Final River Management Plan (RMP)

prepared by the Conference of Upper Delaware Townships in cooperation with the

National Park Service. This District is further intended to preserve the scenic character

of the corridor which is presently undeveloped. A reference to Section 6.7 under the

INTENT section might also be appropriate (Soete and NPS).


COMMENT 43: Page 40 Special Uses listed for the Recreational River District RR include,

Agribusiness, Agricultural, On-Site, and Value-Added Wood Processing.Depending on the scope of these Special Uses, it is possible that they could be

considered as Major Commercial or Industrial Uses which are incompatible in

Recreational Segments (Soete and NPS).



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COMMENT 44: Page 40 Under Development Standards for the Recreational River District RR, it

states that Lot coverage is 43,560 sq. ft. or 20%, whichever is less. The RMP states: A

10% (or comparable square feet) maximum lot coverage, or impervious surface

limitation on small lots. Employment of a sliding scale decreasing the allowable

percentage of impervious lot coverage as the lot size increases. (Soete and NPS)


COMMENT 45: Page 41 As noted previously, it is possible that several small areas of the R-I District

maybe within the river corridor, and that some allowed uses might be incompatible.

(Soete and NPS)


COMMENT 46: Page 43 Though it is probably not a new zoning change, I am concerned that the GR

District extends south of the Cortese Landfill for quite a distance into what wasoriginally designated as a Scenic Segment in the RMP. While the Town apparently

considers this area to be part of the Hamlet of Narrowsburg, it opens up the possibility

that an relatively undisturbed area of the river corridor could be subject to 15,000 sq.

ft. lots along the river, and on the steep slopes surrounding it (Soete and NPS).


COMMENT 47: Page 47 Section 5.0.1 mentions the Scenic Overlay (SO) District and references Section

6.17. Should the SR and RR Districts also be mentioned along with the SO District? Also,

should a distinction be made between commercial and personal use? For example, a

personal windmill versus a commercial wind turbine or wind farm (Soete and NPS).


COMMENT 48: Page 67 It is great that Section 6.11 regarding Mineral Extraction states, Major

mining operations shall be prohibited within the Recreational River (RR) and Scenic River

(SR) Districts and elsewhere limited as provided on the Schedule of District Regulations.

Note that Recreational River (RR) District is used here (Soete and NPS).

RESPONSE: Comment noted and this section will be revised as recommended .

COMMENT 49: Page 78 In the third line of Section 6.14 (7), change the word city to town. (Soete

and NPS).


COMMENT 50: Page 79 It is great that Section 6.17, regarding the Upper Delaware Scenic and

Recreational River (UDSRR): The River Management Plan, states The purpose of these

provisions, which were introduced in Article 111, Section 3.0 of this law is to ensure


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development conforms with the recommendations of the Upper Delaware River

Management Plan (RMP) of 1986. Note that Residential River (RR) District used

throughout Section 6.17 should be changed to Recreational River (RR) District. (Soete

and NPS)

RESPONSE: Comment noted and this section will be revised as recommended .

COMMENT 51: Page 79 In Section 6.172 Density in the Scenic River (SR) District, change three to

five. It seems like the density of one (1) dwelling unit per three (3) acres for the

Recreational River (RR) District should also be mentioned here, or in a separate section

(Soete and NPS).


COMMENT 52: Page 79 We note that Section 6.17.3 regarding Prohibition of Types of on Non-

Residential Development (change on to of) prohibits light manufacturing in theSR, RR, and SO Districts which is in keeping with the RMP. This could address my

concern that the Special Uses Agribusiness, Agricultural, On-Site Processing, and

Value-Added Wood Processing might not conform with the RMP (Soete and NPS).

RESPONSE: The comment regarding page 79 will be revised as recommended. In reference to the

concern about the special uses of Agribusiness,Agricultural, On-Site Processing, and

Value-Added Wood Processing not conforming with the RMP, the zoning rewrite

committee will re-evaluate this point.

COMMENT 53: Iflight manufacturing is a prohibited use in the SR, RR, and SO Districts, it could be

construed that Heavy Industrial Uses are also prohibited in these districts. The RMP

specifically lists Heavy Industrial Uses as an Incompatible Use anywhere in the river

corridor. The RMP defines Heavy Industrial Uses as The manufacturing, production or

refining of raw materials or the large scale assembly of component parts for non-local

distribution or consumption, typically involving the generation of waste by-products,

extensive buildings and ancillary transportation modes, but not including home

occupation or traditional activities such as lumber yards or dairy processing plants.

The UDC recognizes that some member towns are having difficulty addressing the

potential of Heavy Industrial Uses of which gas drilling would be a part. The UDC s

position is that because of the size and scope of todays natural gas development, it

should be considered as Heavy Industrial Use which would be incompatible anywhere

in the river corridor. As such, we believe that all surface activities of natural gasdevelopment must be prohibited in the designated river corridor. Horizontal drilling

under the river corridor would address the property rights issue, but it should only be

considered if it is proven to be a safe operation. If the Town wishes to be more

restrictive, that is their prerogative (Soete and UPS).

RESPONSE: See response to COMMENT 39.


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COMMENT 54: Page 80 Section 6.17.5 Special Setback Requirements states that no building in the

SR and RR Districts will be located less than one-hundred feet (100) feet from the

normal high water mark of the Delaware River. From a health and safety standpoint, it

would make more sense to measure the setback from the top of the river bank. (Soeteand UPS)


COMMENT 55: Page 80 Section 6.17.7 Clearcutting Timber for Forest Products should apply to both

the SR and RR Districts, not just the SR District. Should it also apply to the SO District?

Note that the Land and Water Use Guidelines in the River Management Plan for the

most part apply to both the Scenic Segments and Recreational Segments, and to

some degree, the Hamlet areas (Soete and NPS).

RESPONSE: Agreed. This section will be revised as recommended.

COMMENT 56: Page 81 Section 6.17.8 Signs should apply to both the SR and RR Districts, not just

the SR district. Should it also apply to the SO District? (Soete and NPS)


COMMENT 57: Page 82 Section 6.17.9 Lots Fronting on the Delaware River should apply to both the

SR and RR Districts, not just the SR District (Soete and NPS).


COMMENT 58: Page 109 Regarding Section 8.3.8 Hearing Notice, The UDC typically tries to keep

track of public notices in local newspapers. If there was a more direct way to notify the

UDC of projects located within the river corridor, we would appreciate it (Soete and

NPS).

RESPONSE: Comment noted. Perhaps both the Planning and ZBA can include a relevant

representative of the UDC in an e-mail correspondence.

COMMENT 59: Page 117 In the first sentence of Section 9.10.1 Single Family Dwelling, change

issue to issued. (Soete and NPS)

RESPONSE: This edit will be made as recommended.

COMMENT 60: Pages 123, 124 In Section 10.3.1 Enforcement, replace the $XXXsn with dollar

amounts (Soete and NPS).

RESPONSE: Consistent with the response to COMMENT 7 this section will be revised as

recommended.


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Eventually the integrity of the bridge will become more compromised with the

additional stresses. In the worst case catastrophe might result, lives could be lost, and at

the least everyone would be affected and inconvenienced. If you think this is an

outrageous claim, consider recent events including bridges of Minneapolis, Cincinnati,

and Louisville (Spoerri).

RESPONSE: Please see responses to COMMENTS 1, 4, and 15.

COMMENT 63: Id like to thank the zoning re-write committee for its months of hard work addressing

issues most important to our community, and for adhering to the vision set out in the

comprehensive plan. Article 14 is critically important for maintaining jobs and bringing

new jobs to the area. Without any protective zoning against heavy industry such as gas

drilling, many primary and secondary home owners will leave town, and take their

businesses with them. Personally, know people who have deferred construction and

renovation projects until they know the outcome of this debate, and there are certainly

others who have opted not to come to our area due to growing awareness of this threatto our environment. Our future lies in the natural and cultural resources that we have

here already, and the light industries we hope to attract in the future. Lets protect

them. Please keep article 14 (Phillips).


COMMENT 64: The idea of contracting with a company such as PODS, allows a homeowner to load, pack

and move personal property at their leisure with the purpose of relocation. To limit a

person access or use beyond 72 hr or 2 times in a 30 period flies in the face of common

sense (Hoffman).

RESPONSE: Comment noted. Additional review of other zoning codes relating to Portable Storage

Units indicates shorter time periods are more commonly permitted. It is recommended

that the reference to a period not exceeding 72 hours in duration from time of

delivery to time of removal... in 1 (see Section 6.14) and the reference to Such

temporary structure(s) may not be located on a specific property more than two times

in any given thirty-calendar-day period in 3 be deleted and substituted with the

following language: One (1) portable storage unit may be located on the property for a

period not to exceed thirty (30) consecutive days. It is also recommended that the

following language be added to account for extenuating circumstances: When

necessary to facilitate clean up and/or restoration activities resulting from a flood, fire

or natural disaster to a building or structure one (1) portable storage unit may be

located on the property for a period not to exceed one hundred eighty (180) days. Finally, Section 6.14 requires a permit to track the time period the container is placed on

the site. Therefore, it is recommended that the following language be added: All

portable storage unit containers must include a placard not to exceed one (1) square

foot in area which is clearly visible from the right of way which includes the container

Identification Number, date of its placement on the property, date that removal will be

required , and local telephone number.


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COMMENT 65: Define permanent foundation, slab, and full? Our first home in Tusten was a double

wide and was placed on concrete runners (just like in Alaska); It was an acceptable

engineering practice with double wide trailers in the past; so why the change now?

(Hoffman)

RESPONSE: This section is based on Section 6.4 of the Town of Tusten Manufactured Home Law,

which, in turn, is established on the standards set by the U.S. Department of Housing

and Urban Development (see Section 2.1 of the Town of Tusten Manufactured Home

Law). As such, The U.S. Department of Housing and Urban Development (HUD) defines

permanent foundation systems in its Manufactured Home Procedural and Enforcement

Regulationsas follows: (ii) A site-built permanent foundation is a system of supports,

including piers, either partially or entirely below grade which is: (A) Capable of

transferring all design loads imposed by or upon the structure into soil or bedrock

without failure, (B) Placed at an adequate depth below grade to prevent frost damage,

and (C) Constructed of concrete, metal, treated lumber or wood, or grouted masonry.

7

This framework has been in use since the adoption of the Town of Tusten

Manufactured Home Lawon November16, 1998.

COMMENT 66: This entire Section(Section 11.7.4 on Records and Evidence) should be worded that all

NYS rules of evidence applies. Anything other than that is unjust; could lead to

litigation, abuse of power and arbitrary application of evidence (Hoffman).

RESPONSE: Comment noted. In fact, to offer more continuity, the entire wording of Section 11.7.3

will be deleted and replaced with: The ZBA is a quasi-judicial body whose methods and

decision making are governed by State law as to the rules of evidence and procedure. Its

authority extends to all questions relative to the Town Zoning Code. Its authority falls

into three areas: 1. Variances or exceptions to the Zoning Code and (2) Interpretation of

the Code when the Department of Development & Operations (D&O) is unable to

answer a question. Following this change, Section 11.7.4 will be deleted and replaced

with: The ZBA is a quasi-judicial body whose methods and decision making are

governed by New York State law as to the rules of evidence and procedure .

COMMENT 67: This section (Section 13.3.1 on Prohibited Signs) limits a property owner the ability to

setup a shop or HBHO with any retail aspects. Prohibits a property owner the ability to

setup a shop or HBHO and the ability to advertise and promote said HBHO within the

confines of their property. Such a limit is arbitrary and otherwise capricious. This limits

inter and intrastate commerce (Hoffman).

7 Part 3282: Manufactured Home Procedural and Enforcement Regulations . 1999. Section 3282.12.

Questions regarding whether or not a system qualifies under this definition can be referred to the U.S.

Department of Housing and Urban Development, Office of Consumer and Regulatory Affairs, 451 7th St.

S.W., Room 9156, Washington, DC 20410, phone: (202) 708-6409.


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RESPONSE: This section does not preclude a home business from advertising through use of signs; it

requires individuals and businesses to follow specific sign requirements to avoid

compromising the quality of character of the town.

COMMENT 68: I have been a homeowner, taxpayer, and therefore unquestionably a stakeholder, inthe flats of Narrowsburg for twelve years. I am also former chairperson of Community

Board #1 in Manhattan (covering from Washington Square Park to Battery Park), and

was instrumental twice in the rezoning of the areas called Tribeca and SoHo. While Im

neither a lawyer nor a professional public planner, I have dealt on equal ground with

many of them on zoning issues. Some landowners and entrepreneurs object to

legislation that might limit their presumed right to sell or tap whatever resources might

be lying under their ground. This they call a taking by government of some alleged

inalienable right.The concept of a taking is not new. It has been the basis for lawsuitsagainst many zoning regulations, and most results have been clear: a community has the

right to protect itself against heavy impacts within its boundaries. Otherwise any block

of stone-rich Lower Manhattan could be turned into a quarry by any owner, irrespectiveof the impact its crater would have upon city streets and the values of neighboring

properties like the Stock Market. My view is that current fracking lawsuits are cynically

intended to dupe small communities into delaying and derailing important zoning

changes. If its not in the local zoning, drilling can go into the ground without

environmental reviews that would likely have stopped it. A court overturning the right

of a local community to zone its land would threaten every community zoning

resolution in this country. So long as the wording of the zoning covers the probable

effectsriver and water pollution, overuse of highways, etc.not even the current pro-

business Supreme Court could rip away land use from every American community, even

to protect the companies they love. The next battle in this litigation hasnt been

reached yet. There are thousands of attorneys who will be on the side of our

communities, many more than even the billionaires can hire. Towns that dont fight will

succumb, those that do fight will likely be defended in court by heavy-hitters on our

side. Vote into law the strongest, most protective zoning restrictions you can, because

this is your one chance. If you dont, we will be run over. The politically-infiltrated DRBC

may not have the bones to save you. Let the liars sue, because they will lose. If they

dont have to sue us to win, it will be us, and our river, and our water that lose. And it

will be on your heads (Stratton).

RESPONSE: Please see responses to COMMENTS 1, 4 and 15.

COMMENT 69: I believe when citizens were polled during the process of the writing of the

Comprehensive Plan, the first value citizens reported positively was a small townfeeling. The openness of the re-zoning committee meetings and the large turnout at

these public comment meetings, to me, affirms this felling and our interest in the

future. Thank you for organizing these meetings. I have been impressed with the

heartfelt responses we have heard tonight, April Bidwell with roots to the area dating

back 4 generations, Matt giving us indisputable math as to the horrors of truck travel

as a result of gas drilling, and Brandy caring about the animals as well as us. As most


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who have spoken this evening support the adoption of Article 14, I too wish to voice

my support (Luchsinger).


COMMENT 70: We are writing to strongly urge the town council to pass the zoning rewrite, including

Article 14. From what we know of the energy industrys record of responsibility

concerning spills, blowouts and pollution in general, and what we know and dont know

about the chemicals used in the hydraulic fracturing of gas wells, we should beware of

any drilling in the Delaware watershed. Neither Tusten nor Sullivan county have the

resources or infrastructure to deal with the impact of the excessive truck traffic or the

real threat of pollution caused by the extensive drilling planned for this area. We have

no first responders trained for large scale HAZMAT operations and, apparently, no plans

for such. The threat to the watershed cannot be underestimated. Any major problem in

any town along the river or on any tributary feeding into it would cause significant

environmental damage as far away as Delaware Bay. There are tens of thousands ofwells planned for this watershed which provides 15,000,000 Americans with clean

water. Given this areas vulnerability to major flooding, this is an unacceptable risk. If

the town of Tusten can stand with Dryden and the many other towns resisting fracking

and the moneyed interests supporting it, we may have a chance to preserve this place

and provide a livable habitat for the future. It may be a drop in the bucket, but it s a

drop of clean water. And we cant live without that. Pass the zoning rewrite with Article

14 (Morse).


COMMENT 71: In the list of explicitly prohibited uses in Article 14, two terms are used that would

benefit from additional definition. The first is solid waste disposal facility. This phrase,

which also occurs elsewhere in the zoning document, does not appear in the list of

definitions. There is at least one facility currently in town, part of Lang Industries that

probably falls under this definition but without a clear definition, there is no way to be

sure. Obviously, any existing facility would be grandfathered in, but this would still be

advisable to pinpoint more precisely. I believe there may be a formal New York State

definition for solid waste disposal facility, but if thats the one being used, it still

wouldnt hurt to say so, and perhaps to include it by quotation, in an appendix or via a

hyperlink (Willard).

RESPONSE: Comment Noted. Perhaps the following definitions should be added:

Solid Waste or Waste: Any garbage, refuse, industrial, lunchroom or

office waste or other material including solid, liquid, semi-solid or

contained gaseous material, resulting from the operation of

residential, municipal, commercial or institutional establishments and

from community activities. The term shall also include any garbage,

refuse, other discarded material or other waste. Including solid, liquid,


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semi-solid or containing gaseous materials resulting from industrial,

mining, local facilities or any other by-product or effluent from an

industrial, mining or water supply treatment facility, waste water

treatment facility or air pollution control facility or any other material

defined by the NY DEC as solid, liquid, municipal, medical, industrial,toxic or hazardous waste.

Solid Waste Facility, Commercial: Any facility or operation of a private

individual or firm pursuant to the laws of the State of New York

governing the management and disposal of solid waste including, but

not limited to, liquid, solid, toxic, hazardous and medical waste; and,

including but not limited to, transfer stations, solid waste landfills,

incinerators, medical waste disposal facilities, hazardous waste

disposal facilities and radioactive waste disposal facilities.

Solid Waste Facility, Public: Any facility or operation of a public entitypursuant to the laws of the State of New York governing the

management and disposal of solid waste including, but not limited to,

liquid, solid, toxic, hazardous and medical waste; and, including but

not limited to, transfer stations, solid waste landfills, incinerators,

medical waste disposal facilities, hazardous waste disposal facilities

and radioactive waste disposal facilities.

Natural Gas and/or Petroleum Extraction, Exploration ot Production

Wastes Disposal/Storage Facility: Any of the following: (a) tanks of

any construction (metal, fiberglass, concrete, etc.), (b) impoundments,

(c) pits, (d) Evaporation ponds, or (e) other facilities, in any case used

for the storage or treatment of Natural Gas and/or Petroleum

Extraction, Exploration Or Production Wastes that: (i) are being held

for initial use, (ii) Have been used and are being held for subsequent

reuse or recycling, (iii) are being held for treatment, or (iv) Are being

held for storage.

COMMENT 72:The second is deleterious substances. There is a definition for this, but there are two

problems with it. First, the plain language meaning of deleterious is harmful. The list

given is, however, by no means exhaustive with regard to substances that might in fact

be harmful to humans, flora or fauna. With two exceptionsradioactive substances,

and substances related to mining in generaleverything on the list is related to naturalgas and oil extraction. But surely, there are many other substances that are harmful, and

not wanted in the community in keeping with the comprehensive plan, other than those

related to these industries. Just for one example: one substance commonly found in

fracking fluids is benzene, which has many harmful effects to human health. As far as I

can tell from this definition, benzene would be restricted only if it were related to

natural gas or oil extraction. But what if somebody wanted to store it, dump it or


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whatever in relation to some other application? The fact that the definition consists

purely of a list, without any attempt to characterize the properties or criteria according

to which some substance might be deemed to belong to the list, seems to me to leave

an opening for problems like this. There is no way to create a list of all substances

potentially harmful to humans and the environment, but I would think it might bepossible to conclude the list with some such phrase as or any other substance that has

been found, in significant concentrations, to be highly correlated with death or disease

in humans, flora or fauna. I can see that such a phrase might run into some legal

problems with regard to vagueness, but it would surely be better than nothing.

Second, I would think that the virtually exclusive focus on substances related to oil and

gas extraction in this definition creates a potential legal vulnerability. As I understand it,

under NYS law, one of the principal criteria as to the admissibility of zoning with regard

to mining is the extent to which it is incidental to the municipalitys rights and

responsibilities with regard to controlling land use, rather than primarily directed at the

specific industry in question. A list that consists almost entirely of substances related toone industry, without any reason given for why those substances in particular are

regarded as deleterious, may look directed rather than incidental. On the other hand,

if such substances are included as only one part of a list that also includes other

substances, along with a specification of the common characteristic according to which

all items belong on the list, e.g. that they are harmful to biota, that makes it clear that

any restriction of natural gas activities related to the prohibition of deleterious

substances is incidental to the purpose of protecting health, safety and welfare, and not

directed a t the specific industry (Willard).

RESPONSE: Indeed the Zoning Rewrite Committee di

Town of Tusten - Public Comment and Response - Zoning Law

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