Grafton Planning Board Action – Lake At Sylvan Way Development Finalized

by Kieron Kramer
On April 21, 2009, after years of negotiations resulting in many conditions and covenants, the Grafton Planning Board approved with contingencies the development by Stonybrook LLC at Dyken Pond known as the Lake at Sylvan Way. The approval was contingent on Stonybrook, the real estate development company owned by David Lipinski, meeting 13 conditions and agreeing to 26 protective covenants. Because the contingencies have now been met, the Grafton Planning Board, on October 17, 2011, passed a resolution, more than two years later, finalizing the approval of the 2009 subdivision application.
Considering the time spent by the Grafton Planning Board, Lipinski and the various professionals involved, Monday night’s vote was not only a milestone in the combination of environmental protection and real estate investment but was an extremely  rewarding conclusion to a complicated and lengthy project.  Planning Board Chairman Tom Withcuskey had requested the presence of those involved in the project at this meeting. Town Attorney Sal Ferlazzo, Town Engineer Russ Reeves, Tim Giumarra of Giumarra Excavating in Berlin, Surveyor Brian Holbritter, David Lipinski and Lipinski’s lawyer were present for the occasion. Of the main participants only Highway Superintendent Herb Hasbrouck was missing.
Withcuskey was particularly pleased to put this project in the books. “It’s been a long time to get this done,” he said. After the meeting Withcuskey said, “David [Lipinski] has really stepped up to the plate; it is probably one of the most environmentally secure projects that’s ever been in Rensselaer County and the entire State. It has  come out very well,” he said.
The resolution which finalized the major subdivision approval says, “The Town Engineer, Attorney to the Town and Highway Superintendent have reviewed the project through all phases of approval, including the application for final approval, and…the Planning Board reviewed and fully considered the Project and the associated conditions to the final approval, Be It Further Resolved that the Town of Grafton Planning Board hereby determines as follows…The conditions to the final approval of the Project as identified in the Resolution are fully complete and satisfied…This resolution shall take effect upon payment by the applicant of all professional expenses for legal and engineering services provided through the Town.” This resolution was moved by Withcuskey, seconded by Planning Board Member Owen “Skip” Grandjean and passed 3-0 with Planning Board Member Scott Newell abstaining and Planning Board Member Arthur Surprise absent. This vote was essentially a vote to approve the 2009 resolution as well.
The 13 conditions put forth in  the 2009 resolution protect and improve the Town of Grafton while the 26 covenants preserve and protect the pristine environment of Dyken Pond in perpetuity. Withcuskey praised Lipinski for his willingness to meet all of the conditions and accept all of the covenants in the project.
The conditions and covenants developed in 2009 will be enforced by Tom Withcuskey as Code Enforcement Officer.  Local Law #1 of 2009, passed on April 16, 2009, gives this authority to the Code Enforcement Officer. One of the things to be enforced is the scope of the clearing in the 100 foot lake buffer. No clear cutting or any disturbance shall be permitted in the 100 foot lake buffer and any subsequent owner shall not be allowed to clear cut any area greater than 1,000 square feet (e.g. a 100 foot by 10 foot strip for access to the Lake) and that no tree greater than 10 inches in diameter shall be cut within this 100 foot lake buffer. “The intent of the Planning Board is that the 100 foot lake buffer area be undisturbed as much as possible to protect the environment,” the 2009 resolution says.
Some of the more interesting other conditions that have been met by Lipinski are:
• Sylvan Way – the Road. “Sylvan Way to be constructed to Town of Grafton Road Specifications…. The Homeowners Association, in its discretion, may apply to the Town for dedication of the Road, subject to satisfying the Town requirements existing at that time.”
• Site Disturbance. All disturbance of the site, including tree removal and trimming, shall be under the supervision of the Town of Grafton Building Inspector.
• Otter Cove Parcel – Parcel F. “This Parcel F shall be conveyed to the Friends of Dyken upon final approval of this Project….”
• Home Owners Association. “The Lake at Sylvan Way, Inc., a Homeowners Association, shall be established by filing with the NYS Attorney General’s Office as soon as the Project receives final approval. The HOA shall hold title to all common areas, including the Road, Sylvan Way, and shall be responsible to maintain and manage all such ‘Association Lands.’”
• Signage. “Signage for Sylvan Way shall be paid for by Stonybrook and shall include a Stop Sign, One Way Sign, Do Not Enter, following the Manual on Uniform Traffic Control Devices. The Road name sign, ‘Sylvan Way,’ shall be depicted in signage of a rustic design.”
Helicopter Clearing
One unique condition is the development of a helicopter clearing with a public safety easement for access to Dyken Pond and the helicopter clearing for public safety and emergency purposes to be granted to the Town of Grafton, the New York State Police and Urban Search and Rescue. The helicopter clearing is located on the “Green Space” at the project cul de sac. Withcuskey said that the helicopter clearing is critical because boating accidents may occur on the Pond that would require the immediate transport of the victim to a medical center.
Mitigation Fees
Grafton also asked for three mitigation fees as a condition of permit approval.
The Town Highway Department Mitigation Fee required Stonybrook to pay to the Town up to the sum of $8,000 for a road water spraying device. “Such device shall be used by the Town throughout the Town. This fee shall be paid to the Town not later than May 15, 2009.”
Stonybrook agreed to pay a Town Fire Department Mitigation Fee to the Town of Grafton Fire Department in the amount of $5,000. “This fee shall be paid to the Town prior to the commencement of the construction of the first house in this subdivision.”
And lastly, Stonybrook agreed to pay a “South Long Pond Road Mitigation Fee to the Town of Grafton…up to the sum of $30,000. This fee shall be paid to the Town not later than September 30, 2009.”
The conditions also included security for the payment of the mitigation fees. As security Lipinski agreed to grant the Town a first mortgage lien on Lot #4, a Phase 1 lot in the Lake at Sylvan Way subdivision.
Members of the  Planning Board confirmed that all the mitigation fees have been paid by Lipinski. So the Town has a water tanker to control dust on any Town road. The $30,000 fee to repair any damage to South Long Pond Road caused by the passage of construction vehicles was deposited into the Highway Fund in 2009, according to Town Supervisor and Bookkeeper Tyler Sawyer. South Long Pond Road has been gravelled, graded and restored to pre-construction condition several Planning Board Members confirmed, although how much was spent to do this work was not stated.
Of the 26 protective covenants some of the more interesting ones are:
• No further subdivision of any lot shall be allowed.
• Lot clearing in the area of a personal residence shall be limited to one acre or less per lot. For all clearing, special consideration should be given to nesting songbirds and other fauna. During the nesting period of May through July, clearing and other activities should be especially minimized.
• Lands proposed to be conveyed to the Friends of Dyken Pond are to be used for conservation purposes only.
• Only one single family residence per lot shall be allowed with 1,500 sq. ft. minimum living space exclusive of basement areas, attic, garages, sheds, porches, patios or decks.
• Both the 50 foot and 100 foot “green buffer” zones along the lands of Rensselaer County and lands of Akera shall protect 100% of the native vegetation including trees and understory.
• The exterior of all homes, garages and other improvements shall be in earth tone colors.
• Pre- and post-construction around homesites, erosion and storm water runoff shall be prevented by capturing runoff through bioretention utilizing rain gardens, rain barrels and infiltration chambers. This runoff control is especially critical to protect the high water quality of Dyken Pond.
• The use of chemical pesticides and fertilizers hazardous to the ecosystem must be kept to a minimum consistent with good husbandry of domesticated plants and animals.
• Pesticides are to be applied only by methods and at times that will prevent their affecting vegetation, water quality or animal life outside the property owner’s boundaries.
• Jetskis, and other high speed watercraft, are especially discouraged so as to minimize the overall impact on the ponds,
• So as not to interfere with others’ enjoyment of the night sky, and to minimize the impact of light pollution on the natural environment, low intensity, downward reflecting exterior lighting should only be used for short intervals (using motion detectors) and should not be left on overnight.
Some of these covenants might seem overly constrictive to many. But according to Withcuskey all of the 21 lots in the development have been sold. Withcuskey said that most of the purchasers approve of the stringent environmental covenants because it assures the  ongoing beauty of the natural environment and, not incidentally, will serve to maintain their property values. One person purchased two lots of Sylvan Way at Otter Cove to hold forever wild.  And so a chapter in the Grafton story ends successfully with Dyken Pond protected so that its natural beauty may be enjoyed for the foreseeable future.
Lamphere Subdivision
After the Lake at Sylvan Way final approval, an informal discussion concerning Terry Lamphere’s property in Grafton, which also extends slightly into Petersburgh, was held. Lamphere wants to sell 2.5 acres to his neighbor Randy Goyer now, sell another lot, which currently contains a camp, to his daughter and son-in-law at a very reduced price as part of her inheritance, Lamphere said, and keep the lot on which he has his workshop. The acreage to be sold to Goyer would expand his property, and Lamphere said that he and Goyer had agreed on the new lot line. Lamphere was represented by surveyor Kevin McGrath who insisted that this should be considered as a lot line adjustment because the tax number would remain the same. The Planning Board sees this as a simple subdivision that requires a survey map of the entire property before the application can move forward. McGrath objected several times to this requirement. He asked if the requirement for a survey was part of the regulations. It is not part of the regulations, but many years ago the Planning Board established this requirement as a policy, which, according to Withcuskey, it has the authority to do. After McGrath insisted again that the survey wasn’t required because this was a lot line adjustment Board Member Jim Goyer said, “It doesn’t make much difference; you’ve got to have a full survey; that’s the way it is.”
The Board foresees no problem with the subdivision since all the parcels created would be greater than 5 acres “It’s pretty cut and dry,” said Withcuskey. He suggested that if the survey was done by the November meeting a public hearing could be scheduled for December and the subdivision approved at the December Planning Board meeting after the public hearing. Since a small part of the subdivision is in Petersburgh, Withcuskey, as a courtesy, will send the Petersburgh Planning Board a notice to see if they want to participate in the process. In spite of McGrath’s insistence the Board held fast to the survey requirement. As one Board Member said, “We can’t start making exceptions [to the survey policy].”