Incorporated Village of Asharoken
Board of Trustees Board Meeting/Public Hearing
Tuesday, September 10, 2019 6:30pm
At the Village Hall
Approximate Attendance (18)
Officers Present:
Greg Letica, Mayor
Pam Pierce, Deputy Mayor
Melvin Ettinger, Trustee
Laura Burke, Trustee
Ian Jablonski, Trustee
Officials & Appointees Present:
Nancy Rittenhouse, Village Clerk
Bruce Migatz, Village Attorney
Emily Hayes, Treasurer arrived at 6:45pm
Doug Adil, Building Inspector
Marty Cohen, Chairman of the Conservation Board
Barry Bradley, Sanitation Operator
Raymond Mahdesian, Officer-in-Charge
Bill Raisch; Emergency Manager
The Pledge of Allegiance was said.
Publication of meeting was confirmed.
Trustee Ettinger made a motion to approve the Regular Board Meeting minutes for August 6th, 2019 seconded by Deputy Mayor Pierce.
Trustee Jablonski Abstain
Trustee Burke Abstain
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried.
Mayors Report:
Mayor’s Report;” The Village has been working with the Huntington Highway Department to determine the best fix for an area of erosion on the shoulder of the road north of Bevin Road; I am pleased to report that the problem was corrected yesterday.
In an effort to explore options to save Asharoken money and provide more service the Village has finished its bid package for the possibility of switching to an outside carting service. The bid package calls for identical regular garbage and recycling to what we have now with the addition of bulk/white goods pick up once a week and twice monthly yard waste pick up. The bids are expected back by the end of September. At that time the Village will have an opportunity to determine if better value and more service options can be achieved using an outside carter.
I had a conversation on September 6th with the National Grid Northport power station plant manager. He informed me that National Grid has all of the needed permits, has secured a contractor and is expected to start placing sand on the sound side beach commencing after
October 1st. The 45,000 cubic yards and placement will start at approximately 100 Asharoken Avenue and continue as far west as possible. Sound side residents should expect a letter from National Grid in the next few weeks with more details of the project.
Unfortunately, the total Suffolk County costs associated with the June 30th storm did not meet the mandatory threshold of $29,000,000 to be eligible for state reimbursement. Therefore, the $5042 the Village incurred as a result of the storm will have to be picked up by Asharoken.
I had the pleasure of meeting four new families that moved into the Village since the last Board of Trustees meeting.
Trustees:
Deputy Mayor Pierce reported that she attended one Shared Service meeting and one teleconference. She noted that she reviewed the minutes, vouchers, material and correspondences on the soliciting law; and spoke with various residents during the month.
Trustee Ettinger reported that he worked with Officer-in-Charge Mahdesian on police matters; he reviewed the local law, correspondences, FOIL’s, correspondence from the ACOE and NYSDEC regarding the feasibility study. On September 6th he monitored the storm that hurricane Dorian caused in our area. Splash over existed but the police did not have to close the road. He reviewed the minutes and monthly vouchers.
Trustee Burke reported that she reviewed last month’s minutes, monthly vouchers, police report, and correspondences from residents; as well as correspondences pertaining to the proposed local law and worked on the bid package for Sanitation. She noted that she attended the “Fore Erika Golf Outing” which was a wonderful event.
Trustee Jablonski reported that he reviewed, the minutes, monthly vouchers, police report, proposed local law and correspondences.
Mayor Letica pointed out the “Fore Erika Golf Outing” is a wonderful event and it is amazing to see the outpouring of support. This event has made a huge difference in Erika’s life.
Village Attorney: Attorney Migatz had nothing to report for the month.
Village Treasurer: Nancy Rittenhouse reported for Emily Hayes; vouchers for the month of August were $34,962.69. There will be a separate resolution to approve the vouchers and one budget transfer for the month.
Police Report: Officer Mahdesian reported that the department issued 48 water ski permits for the season. The department issued 44 summonses and made 1 arrest. No reported burglaries in the village for the month of August.
Sanitation Operator: Barry Bradley reported that big blue is running well. Total tipping fees for the month of August were $2,420.00. Trash tonnage 30.25, paper & cardboard 4.17 tons; glass 1.50 tons, plastic and metal 1.32 tons. He also noted that several changes to the marine laws will take place pertaining to boating licenses.
Emergency Manager: Bill Raisch reported that the Coast Guard is a great resource for information on obtaining a boating license. He noted that we are in the middle of hurricane season and will be adding additional hurricane emergency plans to the website.
Building Inspector: Doug Adil reported that he reviewed plans for construction of a swimming pool at 341 Asharoken Avenue; plans were revised; he provided a ‘Substantial Damage” letter to a homeowner on Asharoken Avenue for their use with NY Rising to continue to obtain assistance in elevating costs for the home. He stopped work at a home on Asharoken Avenue in conjunction with the Village Clerk, to inform a homeowner that the masonry piers that they started constructing at their driveway require a Building Permit. Provided input on an application for a homeowner on Asharoken Avenue to place fill in their front yard. Provided input to an application for a tree removal for a home on Clamshell Lane. Reviewed construction drawings for a new home planned for a plot on Asharoken Avenue. Plans were returned for corrections. Reviewed plans for installation of PV solar panels for a home on Asharoken Avenue. Plans were approved to proceed. The building inspector performed seven inspections.
Chairman of the Conservation Board: Marty Cohen reported that the board approved two tree applications.
Mayor Letica presented two New York Conference of Mayors certificates honoring two employees; Barry Bradley having 40 years with the Village and Officer-in-Charge Ray Mahdesian having over 50 years with the Village. Several other officers were noted; Brian O'Connor (25 years), Michael Magerle (25 years), Jim Cox (35 years), Sidney Lynn (35 years), Jeff Josephson (35 years) and Dennis Magerle (45 years).
Mayor Letica opened up the Public Hearing.
Public Hearing publication on the proposed local law was read by Village Clerk, Nancy Rittenhouse
Mayor Letica noted that on June 20th the Village received a letter from a law firm who are representing an environmental exterminating Co. called Aptive Environmental. In that letter they advised the village that banning solicitation is deemed to be unconstitutional; they requested that the village suspend enforcement of the law; failure to do so would result in legal action. Our attorney responded to the letter immediately; in July the Board suspended our ordinance and began working on an amended ordinance. This law firm is very aggressive and is involved with other villages and towns as well.
Attorney Migatz; provided an overview of the proposed local law Chapter 91 “Solicitation”.
a. Attorney Migatz noted that the proposed law was drafted by him, and for the board to provide comments. His objective to drafting the amended law was a “stop gap” measure; he noted that this law can be revised as events change in the future. The company Aptive is very litigious company that has started several actions in Pennsylvania, Colorado, and New York and under the federal statute the prevailing party has a right to attorney fees. He noted that in Colorado the Town of Castle Rock litigated in court and refused to modify their law, they lost and the court awarded Aptive legal fees of $481,958.00 plus additional costs of $47,906.96. The same letter that the Village of Asharoken received was sent to several other villages and towns. Floral Park received the letter and decided not to suspend their law, they were faced with an order to show cause, and a restraining order was issued; Aptive won, Floral Park had to pay $15,000.00 in legal fees.
b. For the Village of Asharoken, attorney Migatz noted that his objective was to stop Aptive from filing an order to show cause. The village’s code chapter 91 “Solicitation” was drafted in 1956 when commercial speech was not recognized as being protected by the constitution. Therefore Attorney Migatz recommended immediately a moratorium on Chapter 91 to protect the village from any possible lawsuits.
Attorney Migatz explained that under today’s law the court allows for reasonable restrictions on commercial speech, which is why the drafted proposed local law (Chapter 91) includes similar restrictions to follow what the court allows. Several points and suggestions were raised from public comment; Attorney Migatz addressed these points.
1. Hours of Operation: The law restricts the hours of solicitation between 9am and dusk (dusk is defined as 30 minutes after sunset) Attorney Migatz chose those hours because in the three complaints that Aptive filed in court Aptive described their operation between 10am and dusk; Aptive was seeking to prevent any restrictions on those daylight hours. In the East Rockaway case; they had a restriction of 9am to 5pm in their local law which was challenged and it was decided by Federal Courts on July 16th 2019; prohibiting 9am to 5pm restriction. If Aptive challenges our hours it would go to the same court; the court disallowed between 9am to 5pm but the courts decided that 9am to Dusk was reasonable; so that’s why the proposed local law includes those times.
2. Licensing Provision: The East Rockaway local law had a licensing provision; Aptive challenged this and the court prohibited enforcement of the licensing provision. This enforcement is preliminary; until we learn of future changes made by the court, Attorney Migatz recommended having no licensing provisions in the proposed local law in order to protect the village. Attorney Migatz noted that he will monitor the East Rockaway case and other cases to find out the outcome. He also noted that he is hoping the court will provide some guidance on what type of licensing is considered reasonable.
3. Posting a Sign: A “No Knock” provision allows anybody to post a sign (“No knocking” or No Solicitation”) at the entrance of their property or on their door. Anyone who tries to enter the property is entering illegally and the property owner has the right to call the police department.
4. List of “No Knock” homes: Attorney Migatz explained that he did not include this in the proposed local law for two reasons; one if Aptive and others are not going to obey the “No Knock” sign on the door they are not going to pick up a list; secondly he noted that Aptive can claim that this is a form of licensing.
Attorney Migatz noted that the proposed local law allows the residents to post signs and call the police if needed. There are penalties included in the proposed local law as well. Aptive is very litigious, they are based in Utah and their business is door to door. He noted that he proposes that the board adopt the proposed local law which can be amended as the village receives further clarification from the courts.
Mayor Letica noted that the village is working on creating small adhesive signs that can be placed on your mailbox or front door. He noted that the board will revisit this local law and strengthen the law as we learn more from the courts; our primary goal is for the village to reach a balance; between safety and privacy for our residents as well as complying with what is allowable by the courts.
Public Comments:
Seven public comments were received via email and letter form.
Seven public comments were made at the public hearing.
1. Question; is there a relationship between Aptive and the law firm to gain legal fees.
2. A concern was noted on solicitors walking along Asharoken Ave; need for sidewalks.
3. A concern was noted on the liability issue that may arise with solicitors entering your property.
4. Question; on enforcing the fines to the individual as well as the company that person works for.
5. Statement; resident commended the board on its promptness; if you place a sticker on your mailbox; does it cover the beach side as well. Attorney Migatz suggested both sides of the house.
6. Question; would the sign prohibit everyone; Attorney Migatz noted yes. Unless there is law that gives a non-commercial group a right to enter.
7. Question; what is the legal definition of dusk. “No Solicitation” signs will not prevent flyers tossed onto your property. Licensing means some kind of permission from the municipality to allow you to solicit in the village.
Mayor Letica made a motion to close the public hearing, seconded by Trustee Ettinger.
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried
Resolution (2019-88) Be It Resolved that the Village Board approves the budget transfers for the month of August 2019.
Mayor Letica made a motion to approve, seconded by Trustee Burke.
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried
Resolution (2019-89) Be It Resolved, that the Village Board does hereby approve the vouchers for the month of August 2019 in the amount of $34,962.69.
Trustee Jablonski made a motion to approve, seconded by Trustee Ettinger.
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried
Resolution (2019-90) Be it Resolved, that the Village Board does hereby approve the Fill application submitted by Mary & Dennis McCreight located at 89 Asharoken Avenue; approximately 80 cubic yards will be placed 40’ in from the highway; a well must be constructed around the existing trees to prevent extensive root burial.
Trustee Ettinger made a motion to approve, seconded by Trustee Ettinger.
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried
Resolution (2019-91) Be It Resolved, that the Village Board does hereby adopt the proposed local law authorizing a new Chapter 91 of the Code of the Village of Asharoken entitled “Hawking, Peddling and Soliciting”; Chapter 91 of the Code of the Village of Asharoken entitled “Peddling and Soliciting” is proposed to be repealed in its entirety.
Mayor Letica made a motion to approve, seconded by Trustee Burke.
Roll Call:
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried
Public Session:
Mayor Letica opened up the meeting for public Session:
1. One comment was made; that if a “No Soliciting” sign is posted than this would exclude everyone from soliciting.
Mayor Letica made a motion that we end public session, seconded by Trustee Ettinger.
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried.
Mayor Letica made a motion to adjourn the meeting, seconded by Trustee Ettinger.
Trustee Jablonski AYE
Trustee Burke AYE
Trustee Ettinger AYE
Deputy Mayor Pierce AYE
Mayor Letica AYE
Motioned Carried.
The September 10, 2019 Regular board meeting/public hearing of the Board of Trustees was adjourned at approximately 7:40pm.
Signed: _____________________________________________
Nancy Rittenhouse, Village Clerk