Lake George Park Commission
Meeting #351

19 December 2006

Fort William Henry

Lake George, NY



Presiding:                    Bruce E. Young, Chair


Commission Members Present:    James T. Kneeshaw
                        Kenneth W. Parker
                        Thomas J. Morhouse
                        Thomas K. Conerty
                        Shauna M. DeSantis
                        Roger H. Phinney
                        Thomas Hall


Commission Members Absent:    John McDonald
                        John A. Pettica, Jr.
                       

Commission Staff Present:    Michael P. White, Executive Director
                        Joseph Schneider, Law Enforcement Director
                        Roger Smith, Conservation Operations Supervisor 1
                        Molly Gallagher, Environmental Analyst II
                        Michelle Way, Keyboard Specialist 1
                        Keith Fish, Director of Operations
                        Andrea L. Maranville, Director of Governmental & Community Affairs


Commission Counsel Present:    Martin Auffredou


Others Present:

John Wells            Janet Wells            Mary Alice Leary        John Boltz
Madeline Farbman        Kathy Bozony        Chris Navitsky        Dawn Keppler
Matthew Fuller        Jeff Meyer            Betty O’Connor        James O’Connor
Irene O’Connor        Carol Collins





Item #1 - Introductions, Roll Call, Minutes of Previous Meeting:  Bruce E. Young

The 351st meeting of the Lake George Park Commission was called to order by Chairman Young at 10:05 a.m. and the roll was taken.

Chairman Young said that the minutes of the previous meeting were distributed in advance of this meeting to Commission members for their review.  On the motion of Thomas Morhouse, seconded by Thomas Hall, all Commission members present voted affirmatively to approve the minutes of the previous meeting.

Item #2 - Project Review — Public Comments On Pending Applications:  Molly Gallagher

Chairman Young announced that currently there are no projects before the Commission.  However, there is an appeal of staff decision being presented today.  Chairman Young asked Molly Gallagher to speak about the appeal.

Molly Gallagher spoke about the predecessor regulations that were in effect from 1981 — 1988 (the Lake George recreation zone regulations).  She said that in July of 1981 these regulations went into effect and everyone was encouraged to register their docks with DEC.  She said by registering their docks they would be grandfathered from the new regulations such as set back guidelines, size and shape of wharfs.  The DEC and afterward the Commission continued to accept registrations for docks that were existing on July 3, 1981, the effective date of the regulations.

Molly Gallagher said that this project stems from a 2001 application when the O’Connor’s came into the office to repair their southern dock.  Mr. O’Connor submitted an application to repair a 5 pier dock but the Commission only had a 4 pier dock on file.  Mr. O’Connor then sent in a letter explaining that an error was made on his part and that their was 5 piers not 4 at the time of registration (1981).

Molly Gallagher said that his registration was amended based on a 1982 aerial photo which clearly shows 5 piers and the written statement of Mr. O’Connor.

Chairman Young explained the regular Project Review procedures.  He asked if there was anyone present to speak on behalf of the Wells.

Mr. Wells responded and said that they are representing themselves.  Mr. Wells is asking that the Commission members re-visit their previous determination in 2001 to revise the wharf registration.

Mr. Wells said that he is unsure if the Commission members have had a chance to review the evidence submitted or if he has to present it.  Mr. Wells said that the information is basically the file that shows the four fingers.

Martin Auffredou, Commission counsel, said that he believes that the documentary evidence has been submitted and would like to give Mr. Wells a chance to summarize his side.

Mr. Wells continued by reading from a prepared statement.  He said that he and his wife are requesting that the Commission review the administrative decision made authorizing the modification of permit # 1059.  “The O’Connor’s have tried to convince the Lake George Park Commission that the issue is merely a modification of the permit not a modification of the dock complex itself”, said Mr. Wells.  He said that they believe that a modification of the dock permit equates to permission for increased non-conformity of the dock and is also a complete disregard for the regulations instituted by the Lake George Park Commission and other agencies. 

Chairman Young asked Mr. Wells if he wants the entire permit to be revoked or if he was mainly concerned about the fifth pier.  Mr. Wells replied by saying that he would like the entire permit to be revoked.  He added that he would like the dock complex to be brought into today’s standards.

Mr. Wells continued to discuss some of the design elements of the O’Connor’s dock complex such as the length and width of piers and the location of the dock complex.

Chairman Young asked if anyone was present to speak on behalf of the O’Connor family.

Matthew Fuller of Fitzgerald, Baker, Morris, Firth said that he is present representing the O’Connor family and is joined by his associate Jeff Meyer and the O’Connor family.

Mr. Fuller said that he wanted to make the record clear that they are here on an appeal of the 2001 determination.  He said that he wanted to make it clear that this is not a judicatory hearing and that no fines are being levied against his client.  The Commission members agreed and said that he was correct in his assumption.

Mr. Fuller said that he and his associate, Jeff Meyer, have poured over every document in the Commission office and are presuming that the Commission members have seen all of the documents, as well.

Mr. Fuller said that in 1981 his client registered his dock complex at the Commission office.  He said that there is no doubt that in the 1960's and 1970's a four pier dock structure was present but when the O’Connors acquired the property to the south they moved the dock complex to the southerly property.

Mr. Fuller said that the fifth pier or finger was then added to the dock.  He said that the fifth finger was not added to the outside of the dock structure rather, it was added to the middle of the structure.  Mr. Fuller added that the aerial photo on file is very telling because it comports with the map that was filed by the O’Connors which was done in 1988.

Mr. Fuller continued to discuss the fact that his clients have always had five piers on their dock complex from 1981 to the present.  He discussed the fact that their dock registrations have always been paid in a timely manner and that he has pictures that clearly show the large open area of the dock structure where the fifth finger was added.

Kenneth Parker asked if the Commission had any pictures showing the original 4 piers with a large area where the so called fifth pier was added.

A 1977 photo was passed around showing the original piers.  The picture showed a four pier dock complex that was present in the 1970's which showed a large area in the middle of the dock complex.

A discussion continued among the Commission members and Matthew Fuller regarding the placement of the fifth pier and a zoning variance that the O’Connor family opposed.

John Wells asked for the opportunity to speak again.  He said that he has had to wait from 1982 — 2006 to get this issue straightened out.  He said that there is a very serious issue which is the concern and safety of swimmers at his dock.

Chairman Young thanked Mr. Wells for his additional comments.

Martin Auffredou, Commission counsel, said that the Commission members had some procedural issues that had to be followed.  He said that the first issue is whether staff’s decision was well based.  Was it reasonable for staff to make that decision.

Martin Auffredou asked if the members could point to something that determines if staff was correct or incorrect in their decision.  Was information withheld or is there new information.

Kenneth Parker asked Martin Auffredou if the Commission has any historical evidence that relates to docks that are on the property line.

Martin Auffredou said “yes, but the Commission tends not to get involved”.

Thomas Morhouse spoke about the severe winter weather when the O’Connors have claimed to have replaced their dock and added the fifth finger.  He said that from April — May it is impossible to have made those changes.  He then asked if you can conclude something like that.

Martin Auffredou responded and said that staff’s determination was based on an aerial survey and a letter from James O’Connor.  He said that we may suspect something but we must base our determination on written evidence in the record.

The Commission members continued their discussion and had a round-table discussion.

Roger Phinney said that he believes that staff was correct in their determination.

Kenneth Parker agreed with Roger Phinney.

Thomas Morhouse said that he thinks that the appeal should be upheld.

Shauna DeSantis said that she agrees with Roger and supports the staff determination.

Thomas Conerty said that he would vote to deny the appeal and agrees with staff decision.

James Kneeshaw said that he would deny the request to revoke the permit.

Thomas Hall said that he sees no basis to change or disturb staff’s decision.

Bruce Young said that there is nothing that he has heard or seen in the record that compels him to change staff decision.

Resolution 2006-83 — James & Elizabeth O’Connor

Thomas read and moved to approve Resolution 2006-83, denial of a request to revoke staff determination.

Facility:  O’Connor’s Cottages
Owners:  James & Elizabeth O’Connor
Parcels:  Lake George 225.20-1-46 & 47
Location: Diamond Point, south of Still Bay Motel

INTRODUCTION
By letter dated October 5, 2006 John & Janet Wells, owners of property located adjacent to and south of O’Connor Cottages in the Town of Lake George, have requested revocation of the LGPC Staff’s April 5, 2001 Amendment to Registration of Existing Wharf #1059 & 1060.

REGULATORY FRAMEWORK
On July 3, 1981, the Department of Environmental Conservation promulgated the “Lake George Recreation Zone Regulations” which established permit requirements and standards and limits for the construction of wharfs, docks and moorings.  The regulations stated that:

646.2(d)(4) All wharves legally existing on Lake George, whether or not they meet the requirements of this Part, may continue to be maintained provided the property owner or owner of such wharf registers the same with the Department on or before January 1, 1982.

Through this rule, wharfs which were both legally existing and registered with DEC (the Department) were exempted from size and spacing limits for wharfs which were established by the 1981 rulemaking.  Notice of the registration requirements was sent to all lakefront owners.

A massive public campaign was conducted at the time to ensure that owners were made aware of the requirement to register wharfs.  The deadline was extended once to August 1, 1982.  Upwards of 3000 wharfs were registered by owners who provided records of the docks, plans and photographs.  These exempt docks may be maintained and repaired but a permit is required prior to relocating, expanding or modifying them.
From time to time, following the August 1, 1982 cut-off, the NYS Department of Environmental Conservation and later its successor in the rules, the Lake George Park Commission, has identified a wharf or dock which exists and which clearly was existing on July 3, 1981 but which for some reason was not registered.  To date the Commission has issued 155 Existing Wharf Registrations for such docks.  Guidance from counsel reinforced this approach in 1988.  (LGPC counsel John Caffry authored a memorandum opinion dated 12/28/1988 which is in the Regulatory Services notebook.)

The Commission has continued to accept existing wharf registration applications "without prejudice" to the fact that they are long past due.   However, the burden is upon the applicant to show that the wharf or dock is legally existing and was on July 3, 1981 and should have been registered.  The Commission has also accepted and reviewed requests to amend original 1981 registrations.  Often the registrations were submitted with inadequate, incomplete or incorrect plans and measurements.  Again, the burden of proof is upon the applicant to show that the original plans were submitted in error.

BACKGROUND
North Parcel 225.20-1-46: 100' Lakefront
1958 Shoreline survey showed a 50' long, 44' wide, 4 pier dock with a walkway to the shore located about 50-60 feet south of the north property line (between the 2 docks which currently exist).  No boathouse is indicated.

Registration of Existing Wharf (REW) #1060 dated December 29, 1981, received by the DEC on December 31, 1981 states that this wharf was constructed in 1956, and includes a sketch showing a crib supported U-shaped wharf 100' long and 30' wide located 12' from the north property line.  It states that the “upper portion boat house” was destroyed in the 1960s.  Photographs from an undated brochure show the dock.

South Parcel 225.20-1-47: 112' Lakefront
1958 Shoreline survey showed no dock on this property

Registration of Existing Wharf (REW) #1059 dated December 29, 1981, received by the DEC on December 31, 1981 states that this wharf was constructed prior to 1969.
The accompanying sketch shows a 40' wide, 23' long 4 pier complex.  An internal inconsistency is clear on the sketch in that the width of the piers and spaces between them add up to a total of 37', but the width of the dock is labeled 40'.  Photographs from an undated brochure show the dock.

Both Parcels
An aerial photograph taken in May 1982 clearly shows the docks in configurations which match that of the 1988 survey.  The south dock has 5 piers in this photo.

July 29, 1988 a survey was done of the two parcels.  It shows a U-shaped wharf to the north which matches in location & shape the sketch submitted with the REW in 1981.  It is slightly shorter and not quite as wide as the 1981 sketch.  Also shown is a 44' wide, 23.5' long 5 pier dock set on the shoreline (no walkway) which is in the approximate location of the 4 pier dock show on the 1981 REW sketch, but instead of being 6' from the property line it crosses over the property line.

The O’Connors paid registration fees for 2 residential docks from 1988 to 2001.

On or about April 3, 2001 Bill Robinson, a dock builder, inquired about permit requirements for repair or replacement of the dock on the O’Connor’s south parcel.  The REW was reviewed and Mr. Robinson noted that the dock had 5 piers, not 4.  The following day he submitted a 1988 survey showing that the dock did not match the filed configuration.  A faxed letter was then received from Mr. O’Connor requesting an amendment to the 1981 REW.  He states in his letter that the 1988 survey “matches what exists on our property today and existed in 1981.”

April 4, 2001 a site inspection was performed in response to the request to amend registration #1059.  The 5 pier dock was measured to be 42'9" wide,23.5' long, consistent with the 1988 survey.

April 5, 2001 Existing Wharf #1059 & 1060 were amended to replace the sketches provided in 1981 with the 1988 survey.

December 4, 2001 LGPC re-assessed the docks as commercial and determined fees due on 215' of commercial dockage.

December 6, 2001, in response to a request, LGPC re-assessed fees and reduced linear footage to 194', discarding footage unusable due to shallow water.  A December 14, 2001 request for further reduction was denied by letter dated January 11, 2002.

December 10, 2001 a detailed layout drawing of the south dock complex drawn by Gary Filippelli was submitted.  The drawing showed a 43' wide, 24.5' wide, 5 pier dock.

The O’Connors have paid registration fees for commercial docks from 2002 to present.

August 8, 2006 a request from David Klein on behalf of the Wells asked for removal of the 5th finger on the south dock.  A site inspection was performed on August 18, 2006 which confirmed compliance with the amended REW and the request was declined by letter dated August 21, 2006.

FINDINGS
The decision to amend the O’Connor’s existing Wharf Registrations was made based on the following information:

    1.  The May 1982 aerial photograph which clearly shows a 5 pier dock on the O’Connor’s south parcel.
   
    2.  The statement from James O’Connor in his undated letter received by the Commission in April 2001 that “The 1988 survey...matches what exists on our property today and existed in 1981.”

No additional information has been provided which would refute or contradict this information.

A roll call vote was taken.

Ayes:    K. Parker, R. Phinney, S. DeSantis, T. Conerty, J. Kneeshaw, T. Hall, B. Young (7)
Nays:    T. Morhouse (1)

The Commission members discussed putting certain conditions on the permit.  The conditions that were placed on the permit are as follows:

Pursuant to 6 NYCRR 646-1.6(k) no berthing is allowed on the south side of the south dock.  To ensure that boaters do not utilize this side of the dock, a sign must be posted on the south side of the dock advising boaters of the berthing prohibition and a simple physical barrier to berthing placed (a 2"x4" railing along the dock uprights would suffice).  Please submit a design for the construction of a physical barrier by January 31, 2007 for review by staff.
   
Pursuant to 6 NYCRR 646-1.2(a)(1) a Class A Marina permit is required to rent vessels on Lake George.  No rental boat activities may be conducted at the site without a valid Marina permit from the Commission.

Chairman Young stated that the Mr. Wells could appeal the decision if he wasn’t happy with the outcome.

Item #3 — Fiscal Actions Report:  Peggy Stevens

Chairman Young said that the November Fiscal Actions Report was distributed with the meeting package to all of the Commission members for their review.  He asked if there were any questions on the report.  There were none.

On the motion of Thomas Morhouse, seconded by Shauna DeSantis, all members present voting affirmatively, the November Fiscal Actions Report was approved as submitted.

Resolution 2006-77 — Postage for Mailing Machine

Thomas Conerty read and moved to approve Resolution 2006-77 which was seconded by James Kneeshaw and all Commission members present voted affirmatively to approve the resolution.

WHEREAS    the Lake George Park Commission sends out Applications to Annually register Docks, Moorings and Boats, and

WHEREAS    over 10,000 applications will be mailed, and

WHEREAS    to process the mailings of these notices additional postage is needed, and

NOW THEREFORE BE IT RESOLVED that the Chairman is hereby authorized to approve the payment not to exceed $9,000 for Postmaster for additional postage to process and mail Annual Applications for the 2007 season. 

Resolution 2006-78 — Authorization to Purchase Power Point Projector and Laptop Computer

Thomas Conerty read and moved to approve Resolution 2006-78 which was seconded by James Kneeshaw and all Commission members present voted affirmatively to approve the resolution.

WHEREAS    the Lake George Park Commission wishes to purchase a multi-media projector and laptop computer to enhance public presentations and to display information and pictures at future Commission meetings, and

WHEREAS    Commission staff has reviewed multi-media equipment and laptop computer equipment available through NYS contract.

NOW THEREFORE BE IT RESOLVED that the Commission hereby allocates funds in an amount not to exceed $2800.00 for the purchase of a multi-media projector and laptop computer, and

BE IT FURTHER RESOLVED THAT the Executive Director is authorized to execute a purchase order for the purchase of a multi-media projector and laptop computer consistent with the findings and requirements of the State Finance Law and Office of Standards and Purchase of the Office of General Services procurement guidelines.

Resolution 2006-82 — Transfer of Funds between Commission Accounts

Thomas Conerty read and moved to approve Resolution 2006-82 which was seconded by Thomas Morhouse and all Commission members present voted affirmatively to approve the resolution.

WHEREAS    the Commission desires to reimburse the Lake George Park Trust Fund for current year Eurasian Watermilfoil expenses.

Be it resolved that the Commission authorizes the Journal Voucher Transfer of $82,050. from segregation account # 569004 1E 06 to the account # 349, Lake George Park Trust Fund.

Item #4 — Project Review Resolutions

Resolution 2006-79 — Acceptance of the Project Review Report

Thomas Morhouse read and moved to approve Resolution 2006-79 which was seconded by Shauna DeSantis and all Commission members present voted affirmatively to approve the resolution.

WHEREAS    the Commission has received and reviewed the Project Review Actions Report prepared by staff and dated December 4, 2006, and;

WHEREAS    the Project Review Committee recommends acceptance of the Project Review Actions Report.

NOW THEREFORE BE IT RESOLVED that the Commission directs that the Project Review Actions Report be incorporated in the minutes of the full Commission meeting.

Item #5 — Water Quality Initiative — Strategic Action Plan:  Michael P. White 

Michael White, Executive Director of the Lake George Park Commission, said that he had sent several memorandums to the Commission members regarding allocating funds up to $400,000 for water quality initiatives.

Mr. White said that the Commission allocated these funds in their 2007-08 Budget Request which are related to the lakes water quality and the initiative has several components and is phased over several years.

Mr. White said that the Lake George Park Commission would like to hire Dr. Kenneth Wagner, a Limnologist, to provide in the current year an assessment  — not a study of the lakes water quality.  He said that this would be an strategic assessment to set up both long-term and short-term objectives for the Commission and although we would be working with our partners on this initiative it would be our intent to develop an agency plan to help us better understand what is happening with the lake’s water quality.

Thomas Conerty read and moved to approve Resolution 2006-81 which was seconded by Roger Phinney and all Commission members present voted affirmatively to approve the resolution.

Kenneth Parker said that the Commission should be applauded for being one of the first agencies to organize and follow through with such an initiative.

Resolution 2006-81 — Water Quality Initiative

WHEREAS    the Commission is charged by Article 43 of the Environmental Conservation Law to preserve , protect and enhance the unique natural and scenic resources of the Lake George Park including the lake’s superior water quality, and

WHEREAS    the Commission has established an objective to take stock of the condition of the lake’s water quality and to work with strategic partners to develop an initiative for sustained and coordinated action to preserve water quality, and

WHEREAS    the Commission’s first step in a water quality initiative is to work with its partners to develop a strategic action plan including an assessment of present conditions and short and long-term objectives for the Commission.

Now therefore be it resolved that the Commission authorizes the Executive Director to execute a purchase order in an amount up to $15,000 with ENSR to retain the services of Dr. Kenneth Wagner as more fully set forth in the attached scope of work.

Be it further resolved that the Chair and the Executive Director are authorized to do all things reasonable and necessary in their judgement to cause the preparation of the strategic action plan for water quality.
 
Item #6 — Law Enforcement Committee Report:  Lieutenant Joseph Schneider

Thomas K. Conerty reported that there was an enforcement meeting and called upon Lieutenant Schneider to give his report.

Lt. Schneider said that he distributed a draft Annual Marine Patrol report to the members at the last Commission meeting and that a final version is now available for those who are interested.  He said that a copy may be obtained following the meeting.  He also spoke about the Open Water Swim that will be held this summer.  He said that he has received additional information from the organizers and

Lt. Schneider said that there was an executive session where active enforcement cases were discussed.

Resolution 2006-80 — Law Enforcement Report

Thomas K. Conerty read and moved to approve Resolution 2006-80 which was seconded by James Kneeshaw and all Commission members present voted affirmatively to approve the resolution.

WHEREAS    the Law Enforcement Committee met December 19, 2006 to review matters pertaining to the Lake George Park Commission’s Marine Patrol and the Commission's Law Enforcement Program, and

WHEREAS    active Law Enforcement cases and their status were reviewed in Executive Session, and

WHEREAS    the Law Enforcement Committee has reported on the results of that committee meeting at this full Commission meeting, and

WHEREAS    the Law Enforcement Committee recommends acceptance of this month's Law Enforcement Report.

NOW THEREFORE BE IT RESOLVED that the Commission accepts the report of the Law Enforcement Committee.

Resolution 2006-84 — Approval of the Annual Marine Patrol Report

WHEREAS    the primary mission of the Lake George Park Commission’s Marine Patrol is to ensure the safety of all users of Lake George and to protect the lake’s bountiful resources, and

WHEREAS    the Director of Law Enforcement has submitted the Lake George Park Commission Annual Marine Patrol Report for the 2006 year, and

WHEREAS    the Law Enforcement Committee recommends acceptance of this report.

NOW THEREFORE BE IS RESOLVED that the Commission accepts the report of the Annual Marine Patrol Report for 2006.

Item #7 — Stormwater Management Report:  Michael P. White 

Michael White gave a report on the Stormwater Program and referred to a written summary of actions that was distributed in advance of the meeting.  He spoke about retaining CT Male Associates, PC out of the Gloversville office.  He said that he has retained them to do stormwater reports on several cases in particular the Nextel site.  He said that he should have a report back around December 28.

Lake Level

Michael White reported that the lake level today is 3.07.

Item #8 — Public Comments

Lake George Association

Kathy Bozony addressed the Commission members and spoke about several water quality initiatives.  She said that she is very excited about working with the Commission.

Lake George Watershed Conference

Not present.

The FUND for Lake George, Inc.

Not Present.

Lake George Waterkeeper

Christopher Navitsky addressed the Commission members and introduced a new staff member.  He said that Dawn Keppler originally came from the New Hampshire Department of Environmental Services. Ms. Keppler will be involved in the Waterkeeper’s Stream Assessment Program and also will be picking up on the Leaf Pack Program working with local schools and will be in charge of various other tasks.

Item #8 — Adjournment

There being no further business, on the motion of Thomas Conerty, seconded by James Kneeshaw, all Commission members present voting affirmatively, the meeting was adjourned.

                        Respectfully submitted,



                        Michelle D. Way
                        Keyboard Specialist 1




    Secretary’s Note:    The next Commission meeting is scheduled for Tuesday, January 23, 2007, 10:00
a.m. at the Fort William Henry Conference Center, Lake George, NY.