City Council

CITY OF SARATOGA SPRINGS CITY COUNCIL MEETING CITY COUNCIL ROOM TUESDAY, JANUARY 7, 2003 7:00 P.M PRESENT : Commissioner Thomas Curley, DPS Kenneth Klotz, Mayor Commissioner Michael Lenz, Finance Commissioner Thomas McTygue, DPW Commissioner Stephen E. Towne, Accounts ALSO PRESENT : Anthony Scirocco, Supervisor Phil Klein, Supervisor STAFF PRESENT : Bruce Brown, Deputy Commissioner, DPW Christine Gillmett-Brown, Deputy Commissioner Finance Debbie Harper, Deputy Commissioner Accounts Bob King, Deputy Commissioner, DPS Hank Kuczynski, Deputy Mayor Jeff Wait, City Attorney PRIVILEGE OF THE FLOOR Peter Tulin, 106 Spring Street, requested that the Council release the Draft Environmental Impact Statement this evening. He said there have been a lot of discussions over the last several months with most of those discussions being confrontational. He said it was unfortunate that the issue had become politicized. He said the taxpayers deserve the opportunity to review the document. He suggested that the Council release the document and then establish a time table to allow for negotiations with the county and other potential users. He said it could be determined that the Hudson River may be the better alternative. He noted, though, that there have been many issues with the County (sales tax, sewer tax, etc.) and it needs to be determined if the County is willing to work with the City considering these other issues. He urged the Council to not take its hand off of the Atap@; and if we did, it would be a mistake that we would pay for generations. He said the City needs to have control in order to control development. He said releasing this report was simply an interim step. Pete Hooker, Jefferson Street, said the Council should set an example and release the document. He suggested that perhaps there may be a third alternative rather than the existing two which could eliminate the bipartisan bickering. He said this City is internationally known for its water. He said that increasing the water system would ultimately require that the sewer system be increased. He said there needs to be citizen participation and the Council needs to look outside of the box. MAYOR =S OFFICE Planning Board Secretary Contract B Approval (03-001) Mayor Kenneth Klotz said the secretary to the Planning Board is a civil service exempt position and is not covered by the CSEA City Hall contract. He said the position is handled by an annual contract that must be approved by the Council. He said the proposed 2003 contract is identical in format to the 2002 contract approved by the Council last year and provides the same benefits for the year 2003 as contained in the CSEA City Hall contract. Mayor Kenneth Klotz moved and Commissioner Thomas McTygue seconded for the adoption of the annual contract for the Planning Board Secretary. He said there was money in the budget to cover the cost increase set forth in the contract. Ayes all. Commissioner Stephen Towne asked if the City Attorney had reviewed the contract. Jeff Wait, City Attorney Page 1 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 said yes. Labor Attorney Contract Renewal B Approve Mayor Kenneth Klotz requested an executive session to discuss this matter. Council members agreed. Christmas Day Snow Removal Mayor Kenneth Klotz said the City had 22 inches of snow on Christmas Day and then another large storm over the last weekend. He commended DPW for their work in snow removal. He noted that other cities had problems with snow removal while in this City it seemed to go well. Affordable Housing B Kirby Village (03-002) Mayor Kenneth Klotz said the Belmont Development Corporation from Buffalo under the name of Saratoga BCD Limited Partnership is proposing to construct 32 additional units of senor citizen housing on Kirby Road. Bruce Baird, Belmont Development Corporation, reminded Council members that they constructed the Saratoga West senior housing on Kirby Road. He said that a two-story development of affordable housing that was started in 1999 and completed in 2000. He said due to the heavy demand for that housing, they applied to NYS for more funding. He said through the funding from state, they will be able to keep rents from the initial $500/month range to $300/month range. He said the state awarded them $1.3 million for the mortgage on this project. He said this is a $3 million development. He said they propose to place this new project directly behind the existing Saratoga West and they will construct a new driveway to the new development. He said this new development would be similar to the existing -- a two story, wood frame, slab on construction. He said it would also look similar to the existing development. Mayor Kenneth Klotz asked if there were any discussions with the neighbors. Bruce Baird said a notice was sent to the nearby property owners and a meeting was held about a week prior to Christmas. He said there was not a good turnout of those property owners. He said he took that to mean that there was not a lot of concern. He said if there were concerns, they would address them. Commissioner Stephen Towne asked what were some of the concerns expressed. Bruce Baird said one was about lighting and because of that concern they will install a row of evergreens. He said there was also concern about buffering and once explained the neighbors seemed to be satisfied. He said they felt good that there was not a lot of concern. He said they also made this same presentation to the residents of the existing Saratoga West. Mayor Kenneth Klotz said this seemed to be a positive project for this community. Bruce Baird said he believed that the residents and the neighbors are more confident about the proposed project because of the existing project. Mayor Kenneth Klotz asked about the process. Bruce Baird said according to the zoning ordinance they will be asking for a special use permit, for subdivision of the parcel, a negative SEQR declaration, site plan review and the appropriate public hearings. He said they would also ask the City for a PILOT program as they did before. Commissioner Stephen Towne said with the allocation of state funding it was recommended that the City allow for a PILOT program while in other documents the PILOT program is noted as a requirement. Bruce Baird said they have competed for the funding from the state. He said during this process it is noted that if the developer wishes to construct family housing a PILOT agreement is not necessary, however, if senior housing is constructed a PILOT program is necessary. He said the rents directly reflect in the economics of this project. He said the state is providing a fixed rate 1 percent mortgage and they need the City=s participation. He said they are not asking for all taxes alleviated but rather that the tax rate be stabilized. He said it is not a requirement but if it is not agreed to by the City, they will not get the state funding. He said the award of funding for this program is based on need. Mayor Kenneth Klotz clarified that the applicant will return to the Council with a PILOT agreement. Bruce Baird Page 2 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 said yes. He said it would mimic the previous agreement. Mayor Kenneth Klotz moved and Commissioner Thomas McTygue seconded that the Council adopt the resolution as drafted (Attachment A) consenting to the formation of a redevelopment company for this project and refer it to the Planning Board for the required certifications. Commissioner Stephen Towne noted that this item was not listed on the agenda and it was his understanding that this would not be voted on until January 21. He said this should be clarified on the agenda. He said in the material distributed to Council members numerous enclosures were listed that were not included in his material. He said he requested that Jeff Wait look into this matter concerning the timing, forms, steps, procedures, resolutions, etc. He said Jeff Wait has reviewed the material and it is appropriate. Ayes all. Budget Amendment City Hall Annex Project B Request for Surplus (02-004) Mayor Kenneth Klotz said the City has been engaged in renovation for the City Hall annex and apparently there was a problem with encumbering money at the end of the year. He said, unfortunately, the encumbering was not done and the Finance Department has now recommended that a resolution to identify these funds from the 2002 budget and to then place them in the 2003 budget. Paul Male, City Engineer, said this was simply an error on their part. He said they had planned to transfer the funds by December 27, however, it was overlooked. He said these are funds that came in late last year and they planned to use to pay the contractors for the work currently being done in their office. Commissioner Michael Lenz said it was important to handle it this way because the books for 2002 had been closed. He said the bottom line does not change and this was strictly a bookkeeping matter. Mayor Kenneth Klotz moved and Commissioner Michael Lenz seconded to approve the budget amendment for 2003 in the amount of $103,289.78 to identify those funds from 2002 budget. Ayes all. Certificate of Appreciation B Wallace Allerdice Mayor Kenneth Klotz said he had a certificate of appreciation for Wallace Allerdice who completed his term on the Planning Board at the end of 2002. He said Wallace Allerdice served nearly 20 years on the Planning Board. Executive Session Labor Attorney Mayor Kenneth Klotz requested an executive session to discuss the labor attorney contract. Approve 2003 Recreation Fees (03-005) Mayor Kenneth Klotz said at the last Council meeting Bob Spratt and Linda Terricola made a presentation requesting fee increases to deal with budget problems in the Recreation Department. He said they met with Commissioner Michael Lenz and it now appears that the Recreation Department will not request those increases in fees. Mayor Kenneth Klotz moved and Commissioner Michael Lenz seconded to approve the 2003 Recreation fees which are identical to 2002 fees (Attachment B). Commissioner Michael Lenz said he was glad that through their discussions they were able to determine that increases were not necessary at this time. Page 3 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Linda Terricola informed Council members that Commissioner Thomas McTygue had been awarded the Saratoga County Outstanding Public Service Award by the Jaycees. She congratulated him on that award. Commissioner Thomas McTygue asked if any programs would be reduced. Linda Terricola said no. She said the services and new programs that were previously mentioned will be maintained. Commissioner Thomas McTygue said the proposed budget showed an increase and they could run short in revenues. Linda Terricola said that was possible and if they find themselves in that predicament, they would come to the Council on an individual program basis to increase the fees. She noted that Camp Saradac has a sliding fee scale program which could be looked at again. Commissioner Thomas McTygue said there will be shortfalls due to revenue sharing from both the federal and state governments and it will become increasingly difficult to fund various programs. He said the Recreation Commission needs to do a complete review of the number of children that the City is providing services for who do not live in the City. He said it was his recollection about 55 percent of the children are from outside the City. Linda Terricola said it was her recollection that it was less than 55 percent. He said the Recreation Commission needs to review this area. He said a large part of the budget is maintaining the fields. Linda Terricola said they are working on such a study and could make a presentation at the next meeting if the Council so desired. Ayes all. ACCOUNTS DEPARTMENT City Council Meeting Minutes, November 22, 2002 Commissioner Stephen Towne noted the following changes to the November 22 meeting minutes: on page 3 of the draft, last paragraph, the sentence, ACommissioner Lenz moved and Mayor Klotz seconded to accept the proposed 2003 Capital Budget as amended.@ be removed. Also on the bottom of page five, third paragraph from the bottom, there is a motion that reads as follows: ACommissioner Michael Lenz moved and Mayor Kenneth Klotz seconded to adopt the 2003 General Fund budget as presented.@ which should be changed to read as follows: ACommissioner Michael Lenz moved and Commissioner Thomas Curley seconded to adopt the 2003 General Fund budget as presented.@ Commissioner Stephen Towne moved and Mayor Kenneth Klotz seconded that with those changes the November 22 meeting minutes be adopted. Ayes all. City Council meeting Minutes December 17, 2002 Commissioner Stephen Towne moved and Commissioner Thomas McTygue seconded to adopt the December 17 meeting minutes, noting that there was an error on page 13 and a memo was circulated with that correction. Mayor Klotz also noted and error on page 13, second paragraph, first line B the dates should be A1988 through 2000" and not A1998 through 2000". Ayes all. Award of Bid B Road Sand Upon the recommendation of the Department of Public Works, Commissioner Stephen Towne moved and Commissioner Thomas McTygue seconded to award the bid for Road Sand to Cranseville Aggregates Company for $4.50/ton and $5.40 cubic yard (only bidder). This bid has been reviewed by the Purchasing Department and is in compliance with the Purchasing Guidelines. Ayes all. Betor Zoning Amendment -- Set Public Hearing Commissioner Stephen Towne said the Council has received an unfavorable advisory opinion from the Planning Board on the proposed rezoning of the Betor property on 119 Driscoll Road. He proposed, nevertheless, that the Council move forward and hold a public hearing on February 18 at 6:45 p.m. Certiorari Matters B Inform Page 4 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Commissioner Stephen Towne announced the voluntary withdrawal of 1997-2002 tax certiorari proceedings filed by the Eton Center/Brause Property on Broadway. He said the tax refund savings regarding this withdrawal is in excess of $450,000 (including school and county taxes). He said the City=s portion is approximately $90,000. He said the withdrawal is the result of discussions between the property owner, himself and Matt Dorsey, attorney representing the City. Commissioner Stephen Towne said the City has had 25 tax certiorari cases or Article 7 cases to defend this year. To date 11 have been resolved with 5 cases being dismissed or voluntarily withdrawn. He said the total tax refund savings for those cases is $1,452,278 million (20 percent or $300,000 was for City taxes). This figure was exclusive of applicable interest. The legal and appraisal fees were modest as compared to what would have been expended to pursue this further in trial. Commissioner Stephen Towne said he had been informed by the state reporters office of the NYS Court of Appeals that the Ball Metal case withdrawal will be reported in their official court reporter. He said only a small fraction of Supreme Court cases receive this distinction. He said this case was chosen because of its potential legal importance to other cities who are defending similar cases. He said he was also happy to inform the Council that the attorney for Ball Metal will not be appealing this dismissal. Reappraisal Process B Update Commissioner Stephen Towne said he would like to take this opportunity to inform Council members that the RFP for the Reappraisal Process was distributed on December 27 to Sabre Systems of Johnstown, RI; Appraisal Consultants of Rochester, NY; Upstate Appraisal Services of Clifton Park; Industrial & Utility Valuation of Albany, NY; Cole Layer & Trumble of Tolland CT; and Maxwell Appraisal Services of Liverpool, NY. This list of vendors was developed by NYS ORPS as appropriate vendors for the reappraisal process. Commissioner Stephen Towne said the timetable for this process is as follows: there will be a preproposal meeting on January 21, 2003; the proposal will be due by February 14, 2003, interviews with the companies will be conducted during the week of February 24-28, 2003 and the selection will be made in early March 2003. Commissioner Stephen Towne said he would also like to take this opportunity to thank the following individuals for their assistance in reviewing this document: Harry Bucciferro, Capital Risk Management; Tony Izzo, Assistant City Attorney; Deputy Commissioner Christine Gillmett-Brown, Finance; Deputy Commissioner Deborah Harper, Joe Williams, Elaine Cogan and Doris Dyer, Karen Slayton and Kathy Moran, Accounts; Beth Cervenak, NYS Office of Real Property Services and Carol Holly, Director of Saratoga County Real Property Services. He said their assistance in reviewing this document was invaluable. Executive Session Commissioner Stephen Towne requested an executive session on a litigation matter. FINANCE DEPARTMENT Approve Payroll Commissioner Michael Lenz moved and Commissioner Thomas Curley seconded to approve the payment of the following payrolls: December 20, 2002 -- $330,863.72; December 27, 2002 -- $343,020.13; December 31, 2002; $154,470.99 and January 3, 2003, $233,223.81. Ayes all. Approval of Warrants Commissioner Michael Lenz moved and Commissioner Stephen Towne seconded to approve the following warrants: Page 5 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 3DEC02 - Warrant 2-29 General Fund $164,725.12 City Center Authority 3,177.41 Water Fund 28,353.11 Sewer Fund 3,853.16 Capital Project 298,327.16 Special Assessment District -0- West Avenue SAD -0- Trust Fund 27,531.25 Debt Service -0- Community Development 30,574.54 $556,541.75 MC021230 - Warrant 2-8 General Fund $1,329,037.62 City Center Authority 10,606.82 Water Fund 15,938.12 Sewer Fund 596,306.25 Capital Project -0- Special Assessment District -0- West Avenue SAD -0- Trust Fund -0- Debt Service -0- Community Development -0- $1,951,888.81 Ayes all. 2002 Budget Transfers B Confirmation of Approval by Memo Commissioner Michael Lenz moved and Commissioner Stephen Towne seconded for the confirmation of the recent approval by memo for the 2002 Budget Transfers (Attachment C). Ayes all. 2002 Budget Amendments B Confirmation of Approval by Memo Commissioner Michael Lenz moved and Commissioner Thomas Curley seconded for the confirmation of the recent approval by memo for the 2002 Budget Amendments (Attachment D). Ayes all. Approval -- 2003 Budget Amendments Commissioner Michael Lenz moved and Commissioner Stephen Towne seconded to approve the budget amendments as presented (Attachment E). Ayes all. Secretary to the Civil Service Commission Resolution B Approve (03-006) Commissioner Michael Lenz moved and Mayor Kenneth Klotz seconded to approve the Secretary to the Civil Service Commission Resolution as previously distributed (Attachment F). He said this is the same resolution as presented last year with a 3 percent increase in salary. Ayes all. Recall 2001 Financial Statements B Discussion Page 6 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Deputy Commissioner Christine Gillmett-Brown said there was a recall of the 2001 Financial Statements. She said it was brought to our attention that some of the funds received for the West Avenue Project were actually federal funds and we had recorded them as state funds. She said, therefore, they need to recall those documents and reclassify those funds. She said this has been discussed with the CPA firm and this is their recommendation. She said about half have been returned. She said it will be reissued once the reclassification is complete. Mayor Kenneth Klotz said he thought the last report was the final report. She said it was the final report, however, there was still the opportunity to make this correction. She explained that because we don=t have comparative statements it was recommended by the auditors to handle in this manner. DEPARTMENT OF PUBLIC WORKS Snow Removal B Update Commissioner Thomas McTygue updated Council members on the snow removal. He congratulated and thanked DPW personnel. He said many local communities have not received favorable stories on their snow removal. He said on Christmas Day 99 percent of the requested personnel came in for this snow storm. He said the only reason they did not have 100 percent was because one individual was away on vacation. He said the entire downtown area was cleaned for First Night. He thanked Saratoga Harness for allowing the City to fill their back lot with removed snow. He said they are now dealing with fire hydrants, storm drains and widening the narrow streets. He said they are also cleaning the municipal parking lots and will continue throughout the week. He has contacted Niagara Mohawk on Excelsior Avenue and requested permission to dump snow there and Niagara Mohawk has agreed. He said they will begin on Sunday to remove the snow from the downtown area. He said these storms are costly but the City has been successful in its snow removal. He said it appears that the City will be in the black for snow removal for 2002. Commissioner Stephen Towne said Council members have had disagreements over the year, however, he recognized the good work of the employees of DPW during this storm. He recognized that all DPW employees were out that day including Director of Public Works Bill McTygue. He said over the last week the talk on the radio is all about snow removal and he noted that the City of Saratoga Springs has not been included in those discussions. He commended the DPW employees. Commissioner Thomas McTygue said when he calls his employees to come in these individuals are leaving behind the things that need to be done. He said it is stressful for many of the employees knowing that they must dig themselves out when their shift was over and he too thanked them all for coming in and doing such a fine job. Weibel Avenue PUD B Permission for Mayor to Sign Agreement (03-007) Commissioner Thomas McTygue moved and Mayor Kenneth Klotz seconded to confirm the recent approval by memo to authorize the Mayor to sign the agreement for the Weibel Avenue PUD accepting the sum of $90,000 to install a water line along Lake Avenue to Weibel and make the connection. He said this will allow for a completion of this water line. Paul Male said the original PUD legislation called for a water line along Weibel Avenue which was completed and this will now connect the loop from Stewarts on Lake Avenue to Lexington Road. He said this is a very beneficial project which completes the loop. Commissioner Michael Lenz asked what was the next step. Commissioner Thomas McTygue said this project would be completed by his department. Paul Male said the survey work has been completed and they will need to get a permit from NYSDOT. He said engineering would work with DOT and DPW on this matter. Commissioner Stephen Towne asked if this agreement had been reviewed by the City Attorney=s Office. Tony Page 7 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Izzo, Assistant City Attorney said yes. Ayes all. Release DEIS B Discussion and Vote (03-008) Commissioner Thomas McTygue introduced Bill McTygue, Director of Public Works; Doug Ward and Dean Sommer, attorney representing the City and Kevin Vorhees, Barton & Loguidice. Kevin Vorhees said last February Barton & Loguidice submitted a DEIS to the Council listing the Council as the lead agency under the SEQR process for the proposed Saratoga Lake Water Supply water source development project. He said Commissioner Thomas Curley had asked for incorporation of additional information and that information has now been included. He said that information was also given to Council members last week in a separate notebook entitled proposed modification to DEIS for water source development project dated January 2003. He said this includes a cover later explaining the document. He then gave an overview. Kevin Vorhees said the County water project drawing from the upper Hudson River had been included. He said these pages are to be inserted into the February 2002 DEIS. He said the draft plan completed by Clough Harbor in June 2002 and submitted to the County had been included as well. Doug Ward reminded Council members of past discussions. He said a resolution had been prepared for this evening which would authorize the Council to release the document. He said the release of this document does not bind the Council to any particular plan or decision but rather it simply states that it complies with the scope which had been authorized by the Council in 2001. He said the principal aim is to get the information out to the public. He said the entire process acknowledges that there may need to be more done and perhaps this could be a flawed document. He said that would be fleshed out during the public comment period. He said he had been made aware of a letter from the attorney representing the SLA and he recommended that the actions in that letter not be followed. He said the cases noted in that letter were not similar to this case. He said in the cases cited in the letter those cases are foilable, however, the City=s document is not foilable because it was not submitted by an applicant because the applicant is the City. Doug Ward read into the record the following resolution: Resolution Regarding the Public Release of a Draft Environmental Impact Statement for a Water Source Development Project WHEREAS , the City of Saratoga Springs has proposed to develop a new water supply source to meet the community=s long-term, and emergency water supply needs. WHEREAS , this proposal must be evaluated pursuant to the requirements of the State Environmental Quality Review Act (SEQRA) (Article 8 of the New York State Environmental Conservation Law) and implementing regulations (6 NYCRR part 617). WHEREAS , on February 21, 2002, the City Council was provided a proposed DEIS by the City=s engineering consultant. This DEIS was prepared pursuant to a Final Scoping Document adopted by the City Council on July 17, 2001. As lead agency under SEQR the City Council has reviewed the DEIS and held a workshop to consider the document. WHEREAS , subsequent to the workshop at the request of some of the City Council members the City=s engineering consultants have incorporated additional evaluations into the DEIS including an evaluation of a proposal by the County of Saratoga to supply the City with water from the Hudson River. NOW, THEREFORE, BE IT RESOLVED , that pursuant to 6 NYCRR '617.9(a)(2) and other provisions of SEQRA, this DEIS shall be released for public review and a notice of completion shall be filed, circulated and published. AND IT IS FURTHER RESOLVED , that a public hearing on the DEIS be held by the City Council on February ____, 2003, at 7:00 p.m. at the Music Hall, Third Floor, City Hall, Saratoga Springs and that the City Council commits to hold the record open to receive public Page 8 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 comments for a period of six (6) months from the date of this resolution. These time frames may be extended by the City Council which may also authorize additional hearings. Doug Ward said SEQR requires that one public hearing be established between 15 and 60 days of the adoption of this resolution. He said it does not prohibit the Council from having further public hearings. Mayor Kenneth Klotz said last year Doug Ward recommended this action. He said there is now additional material and the recommendation is still the same -- to accept and release it. Doug Ward said yes. Doug Ward said this information could still have been included if this document had been accepted 11 months ago. He said that there may still be other plans that become part of this process. Mayor Kenneth Klotz said he anticipated more information on the upper Hudson water source and it could still be included. He further noted that the 6 month period of public comment could be extended. Doug Ward agreed further stating that he anticipated the information for the upper Hudson River study would be incorporated. He said the converse that the City=s DEIS may be very helpful to the County. Dean Sommer reminded Council members that the document before them is a privileged document. He said one of the concerns with the release was that it be done pursuant to SEQR. He said if it is released outside of the context of SEQR the Council would be waiving privilege. He said the deliberative privilege which would be waived if released outside of the SEQR process. He explained that the deliberative privilege was established to allow staff to work on documents without the fear of release until the document was approved. He said it is a privilege that allows for open governmental decision making. He said otherwise the workforce may be afraid to put things in writing that could be released to the public. He reminded Council members that part of this decision tonight relates to the deliberative privilege issue. He said if it is released pursuant to SEQR there would be no problem. He said if it is released outside of that context, it would create a situation that a majority vote of the Council would waive the privilege of the minority Council member and his/her staff. He said he had not yet done the research but was not sure if the majority of the Council could waive the minority=s privilege. He said perhaps it could be a charter issue. He said it is important to maintain this deliberative privilege in order to allow employees to brainstorm and not be nervous about floating ideas. Commissioner Thomas McTygue said it was not his intention to distribute this document without Council approval, therefore, no copies have been made. Dean Sommer said there was some correspondence from an organization that indicated that they had seen the document, however, perhaps that was overstated. He said the waiver of the privilege was the issue here. He said waiving this privilege now would set a precedent. Commissioner Thomas McTygue asked if this same thing could happen under public safety investigation. Dean Sommer said it could relate to notes in another department. He said that public safety information falls under other laws. Dean Sommer said he was concerned about how the Charter might affect this waiver of privilege. Commissioner Thomas McTygue moved and Mayor Kenneth Klotz seconded that the resolution read by Doug Ward be approved and the DEIS be accepted. Commissioner Thomas McTygue further noted that the information from the county had been incorporated. He said this is a draft statement and he encouraged members of the community and state agencies to review and make comments. He said there is a valuable amount of information that should be reviewed by all. He said the City and the County could move forward simultaneously on their projects. He suggested that perhaps both could work together to solve this problem. He said it is important that this document be released. He said the Council controls the progression of this document. He said this is a draft document and does not authorize any type of construction. He said that many members of the community do not understand this document and the release of the document would allow them to educate themselves. Mayor Kenneth Klotz said he thought this was a perfunctory step. He said we have paid hundreds of thousands of dollars to experts to guide the council in this process and the release of the DEIS is what has been recommended all along. He said this is a lengthy process and it is far past the time to accept it and move ahead. He said the City needs a water supply and the process should not be stopped. Commissioner Thomas McTygue said this is his third attempt to move this process along. He said Page 9 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Commissioner Thomas Curley suggested the County information be incorporated and that has been done. He said he contacted all Commissioners on whether there were still concerns and there were a considerable amount of questions from Commissioner Stephen Towne. He said those questions have been addressed by Barton & Loguidice and it was now time to move ahead. He said he would not be able to support further development in the City without knowing where the water would come from. He then asked the Mayor to call a roll call vote for the release of the document. Commissioner Stephen Towne: no Commissioner Michael Lenz: no Commissioner Thomas McTygue: yes Commission Thomas Curley: no Mayor Kenneth Klotz: yes Motion to release DEIS and adopt resolution failed. Commissioner Stephen Towne moved and Commissioner Thomas Curley seconded to release but not accept the preliminary DEIS including the recent submission and amendments from Barton & Loguidice which are to be incorporated into the document and released without editing or action. Mayor Kenneth Klotz said with this motion, Commissioner Stephen Towne has proposed exactly what the attorneys have recommended against and asked Commissioner Stephen Towne if he was aware of what he was doing. Commissioner Stephen Towne said yes. Commissioner Thomas McTygue said he will not violate the SEQR process and he will not authorize the printing of the document. He said he was surprised that Commissioner Stephen Towne wanted to put the City into litigation. He said this was a serious step and he was surprised. Mayor Kenneth Klotz said he was surprised that Commissioner Stephen Towne would offer up a motion on an item with no advance notice when he had expressed concern earlier this evening on voting on an item on the agenda that was not listed as a vote. Commissioner Thomas McTygue said Commissioner Stephen Towne was out of order by introducing this motion. Commissioner Thomas McTygue said he would stay here until 2:00 a.m. to discuss this issue if the Council so desired. Dean Sommer suggested going into executive session to discuss this issue. He said this motion creates some legal issues. Commissioner Thomas McTygue said Commissioner Stephen Towne continually questions whether the City Attorney reviews documents but then he offers a motion that the attorneys have recommended against. He suggested that the motion and second be withdrawn and they go into executive session. Dean Sommer said this creates a far reaching legal issue. He said this is a privileged document and is exempt from FOIL. He said this has long term legal impacts. Mayor Kenneth Klotz asked if the City Attorney had been consulted with by Commissioner Stephen Towne on this motion. Jeff Wait, City Attorney said no. Commissioner Stephen Towne said he had discussed this issue with the Department of State and shared that information with Council members and relevant to that point he said that the opinion from the attorney from the Department of State said that the SEQR neither requires nor prohibits the lead agency from distributing the DEIS prior to acceptance. He said it is silent on the issue of distribution. Dean Sommer said this particular issue deals with privilege. He said it was not made clear to the state that the applicant and the decision making body was one in the same. He said this is fundamentally different from an outside applicant submitting a DEIS. He urged the Council to not approve this decision. He suggested that Commissioner Stephen Towne seek the advice of lawyers that he feels comfortable with to get their opinion on whether the document should be released. Mayor Kenneth Klotz noted that under the charter the City Attorney is required to give legal advice. Jeff Wait Page 10 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 said he was not asked about this motion, however, under different circumstances in the past he has researched issues similar to this. He said when the Council passes a motion telling another department what it may do affects the balance of authority and he questioned whether that Council member would be required to adhere to the direction of the Council. He said Commissioner Thomas McTygue has no intention to release this document even if the DEIS if the SEQR process is not followed and he believed that Commissioner Thomas McTygue had that authority to refuse to abide by the motion. He said that raises the questions that if DPW does not release the document who does have the authority. He said he was not sure. Jeff Wait said he was concerned about the charter if this motion passes. Dean Sommer said he was concerned about the waiving of the privilege. He said the consequences of that could be that the Council could do anything they wanted with the document. He said it places other such documents in jeopardy. Mayor Kenneth Klotz asked if this was similar to releasing information discussed during executive session. Dean Sommer said it would be similar to releasing memos written by staff members of another department. Commissioner Michael Lenz said we have a privileged document and the discussion is that there has been a desire by interested parties to review the information. Dean Sommer said the deliberative process allows the staff to share ideas, brainstorm, etc., which leads to the final decision. Michael Lenz said this has beenbrought to the table to accept and release. He said there has been reluctance to accept it without the information. He said there are those Council members that still feel that the added information is not enough. He said In the interest of getting the information out to the public to release it without accepting what was the exact concern. He asked if it was a precedent concern or was it that the majority of the Council could authorize the release of information from the minority department? Dean Sommer said if released pursuant to SEQR there is no prejudice to gathering additional information. Dean Sommer said approving this motion does not get the Council anything more than if the Council chose to release it pursuant to SEQR. Commissioner Michael Lenz said if he was not prepared to accept the document but was prepared to release the document to the public by taking the action to release but not accept how would it impact internal memos. Jeff Wait said if the Finance Department prepared a draft report on the budget and it is circulated to the Council as a draft, the question is could the Council pass a motion to release it to the public and what is the implication of releasing it if the Commissioner did not want it released. Commissioner Michael Lenz said everyone wants the information released. He said released either way the public gets the information. Dean Sommer said the Council would be releasing a predecisional document, therefore, the Council would be waiving the privilege. He said either way the public gets it, however, the way that is proposed creates a lot of mischief. He said it would allow, in the future, that a minority member of the Council may be overridden by the majority to release a predecisional document. He said the minority member would be in a predicament. He said he was not sure without research whether the Council was establishing a precedent. Commissioner Thomas McTygue asked Commissioner Michael Lenz why he was willing to release the document without going through the SEQR process. Commissioner Michael Lenz said a vote was not taken yet on this motion and Commissioner Thomas McTygue was assuming how Commissioner Michael Lenz might vote. Commissioner Thomas McTygue again asked for an explanation on why he would be willing to release a document without going through the established procedures. Commissioner Michael Lenz said some feel that this draft is not complete. He said he was not comfortable in accepting it as complete. Commissioner Thomas McTygue said that was not being asked of Commissioners. Commissioner Thomas McTygue said that Commissioner Michael Lenz has not made one request for additional information. Commissioner Thomas McTygue asked Commissioner Michael Lenz what was missing. Commissioner Thomas McTygue said we could stay until 2:00 a.m. to discuss this matter. Doug Ward said he was not sure what was missing. He said the SEQR process wants the document accepted and released. He said it is required that if the documents is not accepted but rather rejected, the reasons be articulated and that is required. He said if the Council was not going to accept the document then the Council has to give specific reasons for not doing so that commissioner Thomas McTygue and the attorneys can prepare the appropriate documents. Mayor Kenneth Klotz said that last February Doug Ward stated if we did not follow SEQR that this would Page 11 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 subject the whole process to litigation that could be successful. Doug Ward said it creates a process and litigation that he is not familiar with. He said he talked to the Malta attorney and their case is different from this case. He said he was concerned that the attorney of the SLA has threatened a law suit in connection with the release of this document. Mayor Kenneth Klotz said there are other groups who would also litigate. Commissioner Thomas Curley said the other side could also litigate. Commissioner Thomas Curley asked what would the City be in violation of if we release the document without accepting it. Commissioner Thomas McTygue asked Commissioner Michael Lenz and Commissioner Thomas Curley why they don=t want to release it under the appropriate process. He said whatever was asked for was included. Commissioner Thomas Curley said the preliminary county information was included but there is still more from the County yet to be made available. Commissioner Thomas Curley asked what was the harm to releasing the information. Commissioner Thomas Curley said he did not want to declare it complete because the county information that will be available in April or May should be included. He said he did not want to hold up releasing it until that information is available. Commissioner Thomas McTygue asked why not go through the proper procedures. Commissioner Thomas McTygue said this is a draft document. He said the county information could be incorporated when it becomes available. Commissioner Thomas Curley asked Jeff Wait what would the Council be violating if they chose this course of action. Commissioner Thomas McTygue said if this motion was adopted he would bring litigation against the three Council members who approve the motion. He said this would be an illegal process. Commissioner Thomas Curley asked what would we be violating. Dean Sommer said the Council could accept the document and say they don=t approve of it because it is deficient in some manner and it could then be released. He said the resolution says it will be releasedpursuant to SEQR. Commissioner Thomas Curley disagreed saying it clearly states that a notice of completion shall be filed, circulated and published. Dean Sommer said it is only an acceptance of the document for further review. He said in respect to Commissioner Michael Lenz=s question he was concerned about charter issues. He said he was concerned with the majority choosing to waive a minority member=s rights. Dean Sommer again suggested that we go into executive session. He said that the motion was not in the best interest of the City. Dean Sommer said the Council was about to waive a privilege and the Council should not take this action. Mayor Kenneth Klotz agreed. Commissioner Michael Lenz asked if it would be illegal to approve this motion. Doug Ward said it was not consistent with the statute. He said illegal was criminal, this would not be consistent with the statute and a law suit could be brought forth. Doug Ward said this is not consistent with the statute. He said that when this statute was established this scenario was discussed and rejected so that meant that the procedure was established and the procedure is expected to be followed. He said the Council cannot ignore the SEQR process and it must be followed immediately. Commissioner Thomas Curley said he wanted the County plan incorporated. Doug Ward said it could be incorporated as well as any other future information. Doug Ward said the Council has an obligation to take comments under the SEQR process but if it is not done under the SEQR process there is no obligation to hear the comments. He said by accepting and releasing the document pursuant to SEQR regulations it only shows that the scope was followed. He said this was just a way to begin the process. Commissioner Thomas Curley asked when the process actually would start. Doug Ward said there was no intention to make any applications to DOH or DEC at this time. Commissioner Thomas Curley said though that Commissioner Thomas McTygue would have the right to make application. Doug Ward said yes. Doug Ward said it has been made clear that the Council wants the County information first. Page 12 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Commissioner Thomas McTygue asked if the document was released without accepting it, would the City have to go through the entire process again? Doug Ward said yes. Commissioner Thomas McTygue said the City has spent $450,000 on this document and those funds would simply be thrown out the window. He said if the County decides to slow this process the City could have a serious dilemma. Commissioner Thomas Curley again asked specifically what would the City be in violation of if the document is released. Doug Ward said he was concerned with operating with procedures that were not consistent with statute or operating outside the procedure. He said it would not be recognized as a document prepared under the SEQR process if it is released without accepting it. He said you would be giving the public a document that may or may not be looked at under SEQR. He said SEQR encourages the release of the document early. He said releasing without accepting will simply confuse the process. Dean Sommer said there is either a process or there is not a process. He said if it is released then there is no process. He said if released without accepting it, the Council would not be obligated to listen or respond to the public. Doug Ward said the only process is the SEQR process. He said the Council needs to articulate what details the Council wants. If those details are not available at that time, there is still a process, but when the information becomes available it is incorporated. He said it was dangerous to not follow the established procedures. Dean Sommer suggested this be discussed in executive session. Mayor Kenneth Klotz asked Commissioner Stephen Towne if he would be willing to temporarily withdraw his motion in order to allow the Council to go into executive session. Commissioner Stephen Towne agreed Commissioner Thomas Curley moved and Mayor Kenneth Klotz seconded to go into executive session at 9:15 p.m. to discuss matters in connection with the DEIS issue and the charter. Commissioner Michael Lenz asked that Council members conduct themselves with a level of decorum that is expected in the public arena. Ayes all. Council members returned at 10:15 p.m. Commissioner Stephen Towne moved and Commissioner Thomas Curley agreed to withdraw their previous motion to release but not accept the preliminary DEIS including the recent submission and amendments from Barton & Loguidice to be incorporated into the document and released without editing or action. Ayes all. Commissioner Thomas McTygue moved and Mayor Kenneth Klotz seconded the following resolution: Amended Resolution Regarding the Public Release of a Draft Environmental Impact Statement for a Water Source Development Project WHEREAS, the City of Saratoga Springs has proposed to develop a new water supply source to meet the community =s long-term and emergency water supply needs. WHEREAS, this proposal must be evaluated pursuant to the requirements of the State Environmental Quality Review Act (SEQRA) (Article 8 of the New York State Environmental Conservation Law) and implementing regulations (6 NYCRR part 617). WHEREAS, on February 21, 2002, the City Council was provided a proposed DEIS by the City =s engineering consultant. This DEIS was prepared pursuant to a Final Scoping Document adopted by the City Council on July 17, 2001. As lead agency under SEQR, the City Council has reviewed the DEIS and held a workshop to consider the document. WHEREAS, subsequent to the workshop at the request of some of the City Council members the City =s engineering consultants have incorporated additional evaluations into the DEIS including an evaluation of a proposal by the County of Saratoga to supply the City with water from the Hudson River. NOW, THEREFORE, BE IT RESOLVED, that pursuant to 6 NYCRR Page 13 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 '617.9(a)(2)and other provisions of SEQRA, this DEIS may be released for public review because it is consistent with the scoping document approved on July 17, 2001. HOWEVER, IT IS FURTHER RESOLVED, that the Council does not approve this report because it requires additional information including but not limited to, studies and reports from the county, before any decision to proceed with an application is decided upon by the Council. AND IT IS FURTHER RESOLVED, that a public hearing on the DEIS be held by the City Council between 15 and 60 days from this resolution at 7:00 p.m. at the Music Hall, Third Floor, City Hall, Saratoga Springs and that the City Council commits to hold the record open to receive public comments for a period of six (6) months from the date of this resolution. These time frames may be extended by the City Council which may also authorize additional hearings. AND IT IS FURTHER RESOLVED, that the understanding of the Council is that it controls the time frame of this SEQRA process and related water supply permit processes; AND IT IS FURTHER RESOLVED, that the preceding language shall be included in any notices pursuant to this resolution. January 7, 2003 Commissioner Stephen Towne said it was important for the public to understand that they are still awaiting information from the county and other sources and their concerns about applying for permits and other processes cannot happen without Council approval and other time frames and elements of the process are subject to approval of the Council. He said this is a way to accomplish releasing the document but also allows for room to still gather additional information. Mayor Kenneth Klotz said he believed this clarified some of things that were already implicit in the motion that was denied. He said there are statements about the Council in general included in this resolution that do not apply to him but does to others, however, he would support the resolution. Commissioner Thomas McTygue agreed. Ayes all. DEPARTMENT OF PUBLIC SAFETY Budget Recap Commissioner Thomas Curley said he started 2002 with concerns about his budget and its adequacy. He said during the course of the year they worked at staying within their budget and they have done so. He said they have put off some purchases that will need to be dealt with later this year. He said they also received additional grant money to cover some costs during 2002. He thanked all of his staff but in particular Jim Ruhle, Office Manager in DPS; Deputy Commissioner Christine Gillmett-Brown, and Deputy Commissioner Bob King. He said this was a team effort and commended them for a job well done. Appointments (03-009) Commissioner Thomas Curley announced the appointment of Robert Murphy, Jr. in the Fire Department. He said a swearing in ceremony was held in late December which was a good event for staff and family. Commissioner Thomas Curley announced the appointments of three police officers Russell W. Faden, Shawn P. Gould and Charles P. Fischer effective January 24, 2003. He said another swearing in ceremony will be held. Executive Session Page 14 of 15 City of Saratoga Springs City Council Meeting Minutes Tuesday, January 7, 2003 Mayor Kenneth Klotz moved and Commissioner Thomas McTygue seconded to adjourn to executive session to discuss litigation matters. Ayes all. Labor Attorney Contract B Approve (03-010) Mayor Kenneth Klotz moved and Commissioner Thomas McTygue seconded to approve the labor attorney contract with Poklemba , Hobbs and Ulasawicz as previously distributed. Ayes all. Bristol vs. City (03-011) Commissioner Stephen Towne moved and Commissioner Thomas Curley seconded to authorize the payment of an additional $1,500 which covers the existing invoice and further work to City Attorney Jeff Wait in connection with the Bristol law suit. Ayes all. ADJOURNMENT Commissioner Thomas McTygue moved and Commissioner Michael Lenz seconded to adjourn the meeting at 10:30 p.m. Ayes all. There being no further business, Mayor Kenneth Klotz adjourned the meeting at 10:30 p.m. Respectfully submitted, Kathy Moran Approved: Clerk Page 15 of 15