What???!!!!

According to the story on WKTV News, Earle Reed said:

Adding to the town's fiscal woes was a decrease in sales tax revenues. According to Reed, New Hartford's sales tax revenues are down more than $1 million the past two years.

Sales tax revenues down $1 million...that is the most absurd thing we've heard in a long time! There hasn't been any decrease in sales tax revenues...the town merely budgeted for $500,000 more every year than they could possibly expect to receive.

Since we all know that the town board hired a $150 an hour CPA to do the budget for 2008 and 2009, one can only surmise that overstating revenues was no mistake. We suspect that they were trying to keep the tax rate down so that everyone would VOTE YES for the bonding of the New Hartford Business Park.

Earle, it might be best to be quiet at this point.

Town Board Meeting...

Wednesday, September 30, 2009 at 6:00 P.M. in Butler Hall. Agenda now online!

According to an Observer Dispatch article, 2010 New Hartford budget will include tax increase the budget is scheduled to be released at this town board meeting. Although it does not appear on the agenda at this point, supposedly there will be a Power Point presentation.

Planning Board Meeting Tomorrow...

Tuesday, September 29, 2009, 5:30 p.m. in the New Hartford Library (downstairs meeting room - use back entrance).


Agenda now online!

The Best Laid Plans of Mice and Men Often Go Astray...

Town officials probably had good intentions back in the early 1990s when they first started collecting Fees In Lieu of Mitigation [FILM]; however, they forgot to take into consideration the need for a plan to address the maintainenance and updating of information. According to an article in today's Observer Dispatch, Unused developer fees spur other problems, it would appear that oversight was/is sorely lacking!

By law, government is charged with protecting the "public safety, health or general welfare" of its citizens. But when it comes to development, what if in doing so, it necessitates spending more money than the town has available to spend through the budget process? Should the town raise your property tax to mitigate the impact of development; should the developer pay for that impact through signed agreements and the collection of FILM; or should the development be halted until such a time as the town can afford to mitigate the adverse effects of new development?

In the Town of New Hartford, FILM money has supposedly been collected to mitigate known impacts that have been identified in the Generic Environmental Impact Statements [GEIS] in two (2) specific areas of town; Seneca Turnpike/Commercial Drive and Burrstone/French Road. However, it has now been brought to light that most of the FILM money has been sitting in an interest-bearing account for several years reportedly collecting about $700,000 of interest. The fact that the money has not been used, and in some instances the unused fees were collected almost 20 years ago, makes one question why the money was collected in the first place? Were there no impacts from the development that has occurred in the Town of New Hartford? Hardly...a look at the two GEIS study areas makes it quite apparent that indeed there have been recognizable impacts from the development that has been approved. The flooding in the Royal Brook Lane section of town is a prime example of impacts that were caused by development on Commercial Drive; yet the town has turned a blind eye on the situation citing the D.E.C. as the roadblock to fixing the problem.

A Tale of Two Towns...a second article in today's Observer Dispatch, Colonie uses developer fees to spur development, compares the FILM collection plan in the Town of New Hartford to the FILM collection plan in Colonie.

In New Hartford, FILM is collected for mitigation of identified impacts and according to a signed agreement between each developer and the town, it is held for a specified period of time [although the period of time seems to vary for some unknown reason]. The money then seems to sit in an account accruing interest while waiting for the right mitigation project to somehow magically present itself. Apparently, the hope is that the town will have collected enough money to make the necessary improvements when the need arises. Unfortunately, it would appear that according to town officials, the money never seems to be enough to cover the costs associated with the needed mitigation...probably because as each year goes by, the cost of those improvements increase...almost reminds us of "a dog chasing it's tail".

On the other hand, in Colonie, the FILM is actually viewed as seed money to pay for studies so that when Federal and State grants are available, they are ready to go, thus putting their projects in a better position to get those monies. They actually SPEND the money and make the improvements necessary to reduce the impact of the development in their town and paving the way for further development. Colonie also makes it clear from the onset that the FILM is not returned to the developer.

The difference? Colonie has a plan and once the plan was implemented, it has been continually updated and maintained on a regular basis. Colonie probably doesn't have to worry about what to do with interest because they are not letting the money sit around. New Hartford has no plan to aggressively look for ways to leverage the money they collect. In fact, New Hartford doesn't even have a plan for keeping track of the signed contracts, or an accounting method for determining when the money needs to be returned in accordance with the signed agreements.

According to an article by Kelly L. Munkwitz in the Albany Law Review - December 22, 1997 in reference to whether or not the State Environmental Review Act [SEQRA] authorizes the collection of FILM:

Although neither the statute, its regulations or the legislative history specifically discusses mitigation fees, the Department of Environmental Conservation (DEC) has recognized that "compensation or off-site mitigation should be considered [but] only after all other reasonable methods of avoiding or reducing an impact have been considered."

Munkwitz went on further to discuss the Town of Ramapo where they indeed found another reasonable method [that was upheld by the courts] to reduce the impacts of development:

In Ramapo, the Court upheld a local ordinance that denied development until capital improvements to support that development could be made. The town had developed a comprehensive master plan that addressed existing and projected land uses and included projected housing needs and population trends. Pursuant to the plan, the town "adopted a capital program which provide[d] for the location and sequence of additional capital improvements" over an eighteen year period. Based on the master plan and capital improvement program, the town enacted a zoning ordinance under which the applicant of a proposed subdivision permit would have to show the presence of "essential facilities or services," including adequate roads, public parks, and public sewer facilities, in order to obtain subdivision approval.

Munkwitz concludes her article by saying:

Despite their differences, mitigation fees are almost identical to impact fees in application. Both are "welcome neighbor" fees assessed to ensure that new development pays its own way. The controversy over imposing fees on new development, where such expenses have traditionally been paid by the state or localities, should be decided by the legislature. Due to the conflicts surrounding such fees, and because the legislative intent of SEQRA may be better served by striking down mitigation fees, New York courts are unlikely to uphold them without clear authority from the Legislature. This is especially likely as the Court of Appeals has already provided an alternative in Ramapo.

A lot of controversy surrounds the collection of FILM money...is it legal or is it extortion? As Munkwitz states, whether collecting FILM is legal or not will probably eventually be settled in the courts. However, in the meantime, if the Town of New Hartford opts to continue collecting these fees, the town board needs to make sure that they figure out how to effectively manage the FILM program and account for the money they are collecting from developers. More importantly, the management of this program needs to be addressed before the town board adopts the GEIS for the Southern Area of Town which will allow for further expansion of the area(s)where FILM money will be collected from developers and private homeowners. Otherwise, perhaps the town would be better served to follow the lead of the Town of Ramapo.

One last thought. Supervisor Earle Reed is quoted in the Observer Dispatch as saying:

“It goes back 17 years, some of this,” he said. “I think we should be applauded that we are at least trying to get to the bottom of things.”

Supervisor Reed is correct, the problem does go back over several administrations. However, it is documented in town board minutes that Supervisor Reed visited the Town of Colonie within the first few months of his administration to discuss the handling of FILM. However, even after his visit to Colonie, Supervisor Reed [and the rest of the town board] did nothing to address the lack of procedure and accounting for FILM until he was pushed up against the wall. Supervisor Reed, we will opt to hold our applause!

Special Town Board Meeting...

Tuesday, September 22, 2009 at 5:00 p.m. in Butler Hall.

According to a Friday, September 18th Observer Dispatch article, Supervisor Earle Reed has called for a Special Town Board meeting to discuss sewer-related matters and the town's 2009 budget.

We called the Town Clerk's office to confirm the meeting; however, there has been no agenda issued at this point and nothing can found on the "official" town website. If an agenda becomes available, we will post.

UPDATE Sept. 22, 2009 at 3:23 p.m. - An agenda for the town board meeting scheduled to take place at 5 P.M. tonight was just made available to us.


PROPOSED TOWN BOARD AGENDA (SUBJECT TO CHANGE)
Special Meeting Called by Town Supervisor
September 22, 2009 at 5:00 PM
Butler Memorial Hall


I. Sewer-related matters

II. 2009 Budget

III. Report of Highway Superintendent

A. Arlington Terrace Pump Station Bid
B. Jordan Road and Route 5A Sewer Project Bid
C. Elm Street, Chadwicks bridge – RFP
D. Competitive Bid for leaf vac
E. Other

Town Planning Board Meeting...

Monday, September 14, 2009 at 5:30 p.m. in the downstairs meeting room at the New Hartford Public Library. Use the back entrance to the Library.

Agenda now online!

Vote like your future depends on it...Part 3

There are three Republican Primary contenders for the Ward 1 Councilman seat; incumbent Robert A. Payne, III, who we have already covered in our last blog; Don Backman, former Ward 1 Councilman and owner of a computer service company; and James Messa, a senior sales consultant at Cathedral Corp and a newcomer to the political scene.

Both Don Backman and Jim Messa answered questions in a recent Observer Dispatch article. We'll start with Don Backman...

Experience:

Don's first term as Ward 1 Councilman started in 1998; he was re-elected to a second term starting in 2002 until the end of December 2005. Don also served on the Zoning Board Appeals prior to being elected to the board.

In the Observer Dispatch article, Don acknowledged that he feels current town finances is one of the key issues facing the Town of New Hartford:

“Obviously, the hard issue is town finances,” Backman said. “We are going to have to reduce spending. We are going to have to tighten our belt.”

There may need to be some consolidation, and services may have to be delivered in a whole new way, he said.

Other issues mentioned by Don are stormwater and the Southern Area Generic Environmental Impact Study (GEIS) that is yet to be approved by the town board; the Southern Area GEIS will clearly affect development in Ward 1.

Don also is a staunch supporter of the Open Meetings and Freedom of Information Laws. According to a recent Observer Dispatch article, Don is quoted as saying:

"Other than personnel, pending litigation and police investigations, all other town records belong to the people and I have in the past, and if elected will continue to, make my files open to any and all who wish to read them upon request."

Anyone who knows Don knows that one thing he is not...is a rubberstamp; Don will do what he feels is best for the people he serves. During Don's previous tenure, members of Concerned Citizens worked with Don and can attest that he always made himself available to answer questions and resolve issues for people in his Ward. Don has a website that he updates on a regular basis.

Jim Messa, is a newcomer on the political scene; however, what Jim lacks in town government experience, he makes up for in an eagerness to make a difference for Ward 1 residents and the Town of New Hartford as a whole. Jim has attended every town board meeting for about the past year and can be seen taking notes as items on the agenda are discussed.

Jim feels his education plus his work experience at Cathedral Corp in Rome, which includes 15+ years of successful leadership, management and customer service skills, qualifies him for the position he is seeking.

Concerned Citizens has spoken to Jim who also is a proponent of Open Government. Jim's campaign literature states:

"I am committed to ensuring that residents' issues are addressed and resolved by improving the open government process while providing effective and responsible leadership. I will be the voice of the residents and working together we can make a positive change in our community."

Jim says he will bring "a fresh new prospective with new ideas that will ultimately play a positive role in our community’s future."

Both Don and Jim attended the almost 3 hour August 10, 2009 Public Hearing for the Southern Area GEIS and spoke out against the 5-acre lot restriction that has been proposed. With the recent revelations regarding the FILM monies and the 5 acre lot restrictions, the GEIS will be an important and potentially contentious issue facing the next Councilman representing Ward 1.

Don and Jim also have both stated that they would request a New York State Official Audit if they are elected so that the residents and taxpayers will know where the town finances stand. Don and Jim are also both in favor of consolidation of government services.

We extend the same offer to Don and Jim as we did to the other candidates; comments from them will be printed on our blog in their entirety.

More wisdom from Elmer Fudd...

Three candidates are on the ballot in the Republican Primary for Town Councilman in Ward 1. They are...incumbent Robert A. Payne, III, former councilman Don Backman and newcomer James Messa. Let's start with Bob, the incumbent.

According to a recent Observer Dispatch article, Bob says he supported the New Hartford Business Park:

I also supported the creation of the New Hartford Business Park, which kept over 600 jobs from leaving Central New York without utilizing taxpayer money in its development.

Bob, the only place The Hartford was going to move, if indeed they were going to move, was to Griffiss Business Park...Rome is in Central NY. The deal is that county, school and town tax dollars that normally would have been used to offset increased budget expenses resulting from development of the park will instead be used to pay for the infrastructure in a private development...thus it is utilizing taxpayer money.

Bob also claims that he saved the taxpayers thousands of dollars by the new lighting in the Rec Center and cost saving measures in other town buildings. Bob must be talking about the closing of the Kellogg Road Community Center. Instead of allowing residents to continue to use the building for a nominal fee to hold meetings or have birthday parties for their children, Bob decided to save the town money by closing the doors permanently. How much did you say that saved the taxpayers Bob? We're not sure how any money is being saved because the lights seem to be on at the Kellogg Road Community Center in the evenings. In fact just last weekend, we photographed the Center all lit up both Saturday and Sunday evening.

Guess the center is only closed to some people and not others. Question Bob...of the amount of money you claim to have saved by closing the Center, how much of the electricity bill is for shared uses of the Center's electricity by the Town Police Department and basically having nothing to do with the use of the Center by residents and taxpayers? Care to tell us what the real savings has been?

Bob also spearheaded drafting the town board resolution to set guidelines for conduct at town board meetings...precautionary measures, according to Bob, because there have been no incidents...certainly not by Concerned Citizens who, according to Bob, have been very respectful at town board meetings. And according to Bob's first draft, the rules don't apply to town board members. Bob brought a new, revised rendition of his resolution to the September 9, 2009 town board meeting. We have FOILed a copy and will post as soon as we receive it.

Bob also mentioned in the recent Observer Dispatch article, "I am for full disclosure of public information as long as it does not jeopardize the safety of residents and town employees." Whoa! Must be a broad range of topics [in Bob's opinion] that jeopardizes the safety of residents and town employees because he voted to close the Stormwater Meetings so that residents could not see how the $2 million bond was being spent. He was also the only nay vote for keeping the assessment information away from us so that we would be unable to post the information online in time for Grievance Day in 2007, and "safety of residents and town employees" was also Bob's reason for drafting the Town Board Security Resolution!

Shortly after taking office, Bob single-handedly took on the initiative for creating a "new" town website; although once he realized that the job was too big for him; he quickly passed it off on others. So instead of a FREE website that the town used to have, thanks to Bob, taxpayers are paying thousands to a company that maintains the assessment portion [that includes NO assessment history] and the rest is being done by the 911 Dispatch Supervisor who receives a stipend for his work on the website. As we write, Bob is once again [almost four years later] in pursuit of a solution for the town website...this time hoping to join a consortium at SUNYIT called Digital Towpath which will cost the town $600 to join.

Bob you have done so much for the residents of Ward 1...being councilman must be a drain on you which would explain why you have been absent at 13 town board meetings over the past 3 years. Perhaps you need time to recuperate...how about starting your permanent vacation on January 1, 2010!

We will be highlighting the other Republican Primary candidates, Don Backman and James Messa in our next blog! Stay tuned!

Vote like your future depends on it...Part 2

John Kalil, Jr. is also a candidate for Town Supervisor in the Republican Primary on Tuesday, September 15th.

John, a self-employed Financial Advisor, is a newcomer to the political scene. John says, "Let's put an end to the shenanigans in town government - it's time for a new beginning and positive change!"

John's platform includes:

• Open Government
• Stabilize and control taxes
• Fiscal responsibility and discipline
• Eliminate unnecessary spending

John stated in a recent Observer Dispatch article:

I will not rush to judgment until there has been a complete review of all town functions and services, a thorough knowledge of other available governmental services, input by town residents and taxpayers, and the ultimate cost and savings to the town.

John also gave his outline of how he plans to hold the line on town taxes. According to the recent Observer Dispatch article:

(a) Review and coordinate all department programs to ensure all governmental procedures and services are necessary, cost efficient and to eliminate unnecessary spending.

(b) Consider elimination of services that duplicate those provided by other governments.

(c) Hold the line on all development until such time as the present state of town affairs has been stabilized, fiscal responsibility restored and present developmental plans reviewed and analyzed.

(d) In order to professionally manage town finances, a comptroller should be hired by the town, free of all political connections and affiliations with the town.

John says he is "committed to restoring the position to one of leadership, integrity, and accountability". Concerned Citizens has met with John a few times and we have found him to be energetic, personable and eager to make a difference in New Hartford, where he has lived all his life. It was John's belief in open government that prompted him to meet with our group. Visit John's Facebook page.

We extend the same offer to John as we did Pat; we will post any comments from John, in their entirety, on our blog.

Next blog, there are three (3) candidates for councilman in Ward 1; we will start with the incumbent Robert A. Payne, III.

Vote like your future depends on it...

because it does!

We have received emails and phone calls asking us to give our opinion on the candidates for the Town of New Hartford; however, Concerned Citizens has chosen to not endorse any candidates this year...we are leaving it up to the voters [and taxpayers] of New Hartford to decide the direction of the town. We will just present the options.

There are two candidates for Town Supervisor running in the Republican Primary this Tuesday, September 15th. Patrick Tyksinski, a CPA and seasoned politician and John Kalil, a financial planner and newcomer to the world of politics. Robert Morris, businessman, politician and manager of the New Hartford Shopping Center is also running on the Democratic Party line, but his name will not appear on the ballot until November.

Let's look at the two Republican Primary candidates for Town Supervisor starting with the seasoned politician, Pat Tyksinski.

According to Mr. Tyksinski's website and mailings:

Experience:

• Certified Public Accountant

• Outside auditor and financial consultant for the Town of New Hartford for 15 years 1984-1998

• Comptroller - Town of New Hartford - November 19989 to December 2001

• Financial consultant for Town of New Hartford from January 2002 to December 2003

• Engaged as outside auditor for numerous Towns, Villages and Authorities in Oneida & Herkimer Counties

• Past Chairman of Upper Mohawk Valley Water Finance Authority

• Past Village of New Hartford Trustee.

No specific mention of the fact that Mr. Tyksinski also has been hired by Earle Reed and the current town board each year to perform an independent audit of the cash receipts and cash disbursements of the Town of New Hartford Justice Courts and that three supporters of Mr. Tyksinski's campaign are Earle C. Reed, Town Attorney Gerald Green and Attorney Gerald Green's law firm. Not that those are necessarily bad things, but things that might be of interest to voters as they weigh their options.

Again, according to Mr. Tyksinski's mailers:

Pat will:

• Institute Tax Relief

• Show Strong Leadership

• Establish and Maintain Financial Integrity

• Maintain Viable and Vital Town Services

• Create an Understandable budget & Audit Process

• Work as a team with Town Department Heads

• Be Actively involved with relevant Town issues

• Initiate State of the Town public meetings

• Be Visible & Transparent with open communication

• Be Accessible, Accountable & Committed to all the people of New Hartford

We are curious as to how Pat will institute tax relief and still maintain viable and vital town services...does that mean that he is not looking to cut expenses if it means cutting services? How will he institute tax relief...hopefully not by long-term borrowing [bonding] as it has been reported to us was the solution when Pat was Town Comptroller.

Patrick Tyksinski has a press release in today's Observer Dispatch saying "I am very uneasy about the financial state of the town." "It appears that there will not be a fund balance at the end of this operating year. This will have a harrowing effect on future town budgets."

Mr. Tyksinksi is very correct. In 2009, over $ 1.3 million of fund balance was figured into the adopted budget to keep the tax rate at $2.19 per thousand. It would appear that there is no fund balance to apply to this year's budget; in fact, depending on the final sales tax numbers, the town is also probably about half a million short of meeting the budgeted sales tax revenue figures. That means that YOU, the taxpayer, will have to make up the loss with a substantial tax increase unless a majority of the town board is willing to make tough cuts in every part of town government.

Unfortunately, Pat will not be involved in the 2010 budget; it will be prepared and adopted by the current town board that consists of one who is running for re-election in the Republican Primary [Robert Payne] and one who is running for re-election in November, but has no opponent and will not be on the ballet for the Republican Primary [David Reynolds]. We have already been told by current Town Supervisor Earle Reed that he doesn't know anything about finances so he is a non-player. Then there is Richard Woodland and Christine Krupa, both of them will be up for re-election in 2011. So will Bob, David, Richard and Christine do the right thing and look for ways to cut expenses or will they push the tax burden on the taxpayers? If history is any indication, we probably already know the answer.

Pat says he will establish and maintain financial integrity and create an understandable budget & audit process - this is critically needed if New Hartford is to survive.

He will work as a team with Town Department Heads & be actively involved with relevant Town issues...isn't that what a town supervisor is supposed to do?

Hmmm! Initiate "State of the Town" public meetings. We're not sure where Pat is going with this one. Does he mean a flashy Power Point presentation telling us what he thinks we want to hear? Been there, done that...one of the first purchases of the current administration was to buy fancy Power Point presentation equipment...we all know where that got us. We would rather see town board meetings minus the two-page Town Board Meeting Security Resolution proposed by Councilman Payne that appears to be designed to keep the public "in check". A town board meeting where the public is given enough information to be able to follow what is being proposed will suffice. Just give us the facts...plain and simple.

Pat also says he will be visible & transparent with open communication and be accessible, accountable & committed to all the people of New Hartford. Does that include members of Concerned Citizens for Honest & Open Government? We sure hope so because we haven't been treated very kindly by the current administration...they won't even meet with us...not even when we make an appointment with Earle's secretary. Earle cancelled the meeting the day before because we would not discuss the details of our meeting with his secretary prior to the meeting. Not nice, Earle!

We welcome an opportunity to meet with Pat Tyksinski at his convenience. We also welcome any comments Pat would like to send us in answer to our blog. All comments will be posted on our blog in their entirety.

Next blog, Part 2, we will look at John Kalil's candidacy for Town Supervisor.

Town of New Hartford 2008 Audited Financials

We are making the Town of New Hartford Financial Statements as of December 31, 2008 prepared by Barone & Hilton & Co., CPAs, PC available without comment by us at this time.

John Barone said at last night's town board meeting that the Management Letter was not yet available. As soon as it becomes available, we will post on this blog.

We welcome your comments either by using the comment option on this blog...your comments will be viewed by all who visit our blog...you can use anonymous or any name you choose when commenting, but please keep it clean; or

Sent privately to us by email; or

You can use our Anonymous Tipline where you can choose to either send your comment to us anonymously or if you would like a response from us, please provide your email address.

Town Board Meeting...

Wednesday, September 9, 2009 at 6:00 P.M. in Butler Memorial Hall.

Agenda now online!

Earle's Epiphany...?

Epiphany [e·piph·a·ny]

A comprehension or perception of reality by means of a sudden intuitive realization.

Now that the Town of New Hartford has all the Fees In Lieu of Mitigation money sitting around and an apparent 2013 deadline is approaching, Town Supervisor Earle Reed seems to think that the town might be able to help the residents in the Mudd Creek area.

According to the Observer Dispatch article New Hartford might have to return development fees:

Town Supervisor Earle Reed said when he found out this week about the possible deadline, he was shocked.

“Quite frankly, I was flabbergasted about it,” he said.

Also according to the article:

Reed said some projects could be done, even with just over three years to go before the possible deadline.

He said it is possible work to address flooding on Mud Creek could be done, since the problems may be linked to nearby development.

Amazing, back in 2007 we blogged about the residents on Royal Brook Lane whose backyards looked like this after a heavy rain storm:

We brought the situation to the town board's attention [even though we knew they were well aware of it already]; we even called Councilwoman Krupa one rainy evening as the water was rising. Ms. Krupa, who represents the area, said "What do you want me to do?" We thought it might be nice for her to make a quick visit so she could see first-hand what her constituents are experiencing since the development of Sangertown and Consumer Square.

Wonder if Supervisor Reed would also be flabbergasted to know that according to former Highway Superintendent Roger Cleveland in a letter to NYM Mayor Robert Maciol, the D.E.C. will be a big hurdle to jump over.

According to Roger Cleveland's letter:

"As you are aware from our mutual dealings with the Sauquoit Creek Basin Intermunicipal Commission, dredging is not a word in the DEC's vocabulary when it comes to the Sauquoit Basin, and because Mudd Creek is a tributary to the Basin, not in their vocabulary for the tributary either."

Then there's this "priceless" quote from the same letter written by Roger Cleveland:

"You should be aware that starting with the Sangertown Square project in the 1970's, each and every economic development project has undergone scrutiny by the Planning Board as regards stormwater management. In each case, state of the art stormwater management design was required of the developers. Individually, each project conforms to those designs, yet collectively something else has happened to at least make it appear that the designs don't function, or at least don't function sufficiently to attenuate downstream flooding."

All this was back when the town board was discussing the Greenbelt Study completed by Schumaker Consulting and Engineering in October 2006 whereby 13 acres of land donated to the town by the Presbyterian Homes in the vicinity of Preswick Glen would be developed as wetlands. According to a letter that former Highway Superintendent sent to Royal Brook Lane residents, developing the wetlands by Preswick Glen might just alleviate their flooding problems.

So we guess the question is...in the Observer Dispatch article, was Supervisor Reed talking about directly helping the residents on Royal Brook Lane who are experiencing flooding in their backyard during heavy rains; or was he talking about developing the wetlands for Preswick Glen that they like to tout on their website?

Of course, if the town plans on using the FILM money to develop the wetlands near Preswick Glen, they better be sure that doing so will provide relief for the residents downstream because FILM money is supposed to be used to mitigate not create!

The Economic Engine That Thought It Could...

Today's Observer Dispatch article, New Hartford might have to return development fees shines a little more light on the Town of New Hartford's $3.3 million find.

Apparently, no one is sure of how long the Pre-Development Agreements were written for...the 12-year plan is not necessarily the one being used. It all seems to hinge upon when the agreement was written...or something like that...no one knows for sure. But rest assured, town officials are scrambling to get it all figured out and do the best they can to spend the money.

We found another article on the web from the March/April 2008 Croton Clean Water Coalition. The article, written by Fay Muir, President, is in support of collecting Impact fees or FILM.

Ms. Muir lists the legal considerations before implementing the fees:

1. Home-rule authority - New Hartford does not have a town law for the collection of the fees. They appear to be relying the State Environmental Quality Review Act (SEQRA) for authorization.

2. Equal protection - the fees must be applied to all parties on a equal basis. Guess today's OD article pretty much takes care of that issue...it is not being done on an equal basis. In fact, it appears that there are no clear rules as to how to apply it at all.

Ms. Muir lists other considerations, but you get the idea. Keep in mind this article is premised on the assumption that collecting the fees is legal to begin with and based on the notion "if the law doesn't say we can't, then it must be that we can".

It's clear that the Town of New Hartford had no definite plan for using the monies, otherwise the money wouldn't still be sitting there at this point. Apparently no document exists that clearly defines the implementation and management of the FILM program. And, up to this point, it would appear that no town officials questioned...no one!!!

We talked to a few people that would have had some knowledge of FILM and each one gave us a different answer to the same question. But here is one thing they all agree on...the payment of the fees is voluntary. Yes, you heard us...it's voluntary!

Voluntary [vol-uhn-ter-ee]
–adjective 1. done, made, brought about, undertaken, etc., of one's own accord or by free choice: a voluntary contribution.
2. of, pertaining to, or acting in accord with the will: voluntary cooperation.
3. of, pertaining to, or depending on voluntary action: voluntary hospitals.
4. Law. a. acting or done without compulsion or obligation.
b. done by intention, and not by accident: voluntary manslaughter.
c. made without valuable consideration: a voluntary settlement.

Problem is, the town will not give you a building permit unless you pay the fee!!!!!

Extortion [ik-stawr-shuhn]
–noun
1. an act or instance of extorting.
2. Law. the crime of obtaining money or some other thing of value by the abuse of one's office or authority.

Fees In Lieu of Mitigation [fēz in loo uhv mit-i-ga-tion]
-noun
1. Extortion.
2. Commonly known as FILM

The town board may soon be considering the approval of a GEIS for the southern part of town; the collection of Fees In Lieu of Mitigation is part of the plan.

Of course, payment of the fees will be voluntary...

The Town of New Hartford 12-year rule...

Yesterday's Observer Dispatch article New Hartford has $3.3 million and 'confusion' about where to spend it is interesting indeed. Here's a clue for town officials...better check all the legal aspects of FILM (including the signed Pre-Development Agreements) before you decide where to spend it.

Concerned Citizens has been looking at this issue for some time now. A 1989 court decision in the Town of Guilderland found Highway Impact Fees (similar fee as FILM) illegal:

Municipal Corporations--Home Rule Powers--Authority of Town to Enact Transportation Impact Fee Law--State Preemption
(1) The State has evidenced a purpose and design to preempt the subject of roadway funding and occupy the entire field, so as to prohibit additional local regulation. By several provisions of the Town Law and Highway Law, the Legislature has evidenced its decision to regulate how roadway improvements are budgeted, how these improvements are financed, and how moneys for these improvements are to be expended. The purpose, number and specificity of these statutes make clear that the State perceived no real distinction between the particular needs of any one locality and other parts of the State with respect to the funding of roadway improvements, and thus created a uniform scheme to regulate this subject matter. Accordingly, the Transportation Impact Fee Law (TIFL), a local law adopted by defendant Town of Guilderland, which provides that applicants for building permits who seek to make a change in land use that will generate additional traffic must pay a transportation “impact fee” when the permit is issued, to be deposited in a trust fund and used for the purpose of capital improvements, is invalid as preempted by State law. TIFL intrudes on the State legislative scheme in at least two significant respects. First, because TIFL directs moneys be paid into a separate fund, those moneys may escape the budgetary process established to regulate highway funding. Second, TIFL allows the Town to evade statutory requirements for budgeting, accounting for revenues and documenting expenditures.

While in Guilderland's case they used the name Impact fees, the Town of Colonie "formulated a different scheme" using the name Fees In Lieu of Mitigation (FILM) and claiming that they are authorized under the State Environmental Quality Review Act (SEQRA); the same justification used by the Town of New Hartford to collect FILM. It is interesting to note that according to the October 18, 2006 town board minutes:

Fees In Lieu of Mitigation (FILM)

Supervisor Reed stated that he would be meeting with Colonie officials at the end of the month to have a discussion regarding Fees In Lieu of Mitigation (FILM).

Obviously, the town board is fully aware of the controversy surrounding the collection of FILM. Both the Guilderland court decision regarding their use of Impact Fees under Home Rule and the Colonie use of fees under SEQRA are discussed in an article on the web entitled "Does SEQR authorize Mitigation Fees?".

Only a few towns in NYS collect these fees because it is such a grey area. There appears to be nothing in the State Environmental Quality Review Act that allows for the collection of these monies. Most towns who collect these fees do so on the premise that there is nothing in the law that says they can't, so it must be legal. In other words, if you don't like it, sue us...that seems to be the message all too often in the Town of New Hartford.

And if it were legal to collect Fees In Lieu of Mitigation in NYS, the Pre-Development Agreements that are signed by the Town of New Hartford and the developer prior to construction clearly state that the monies can only be held by the town for 12 years. If the money hasn't been used to mitigate identified projects by the end of 12 years, the money is to be given back to the developer on a pro-rata basis reflecting monies that were in fact spent. Since some of the unused FILM money was collected for projects from the 1990s, it would seem that some of the money needs to be returned in accordance with the signed agreements.

So will the Town of New Hartford honor those agreements and return the money that has been held longer than 12 years along with reassessing their authority to collect the Fees in Lieu of Mitigation or will they play "dumb" and find some "pet projects" to spend the money on? One has to ask, if these monies have been collected and $3.3 million was never spent, what was the justification for collecting them in the first place?

Strikeslip has more on the subject...FILM Flam in New Hartford.