Many members of the agricultural community as well as other interested parties attended the hearing to voice their opinion of the town's use of eminent domain. A show of hands tallied twenty-two  against the use of eminent domain and one  for [that hand would be Larry Adler's].
Everyone thought it was terrible that a piece of agricultural land could just be taken from a long-time resident and business owner in the Town of New Hartford.
However, as the evening progressed we heard from the Yager's attorney who told those in attendance that, now that the town has changed the "S" shape of the proposed road to a "J" shape, and the fact that a developer is now interested in buying part of the Yager property on one side of the proposed road, the Yager's are now willing to sell the 2 acres to the town to build the road, they just don't like the price the town is offering.
Hmmm...a developer is interested in buying some of the Yager property....hmmm.
Turn back the clock a little over a year ago. We were looking for information regarding the personnel policy of other towns...at Supervisor Tyksinski's request.
We FOILed Employee Handbooks from several neighboring towns, but one town in particular sticks out in our mind because we received an email from that particular town's attorney:
We received your FOIL request and will produce anything we have. I believe I have had the opportunity to view your web site when dealing with an incredibly painful experience with New Hartford government for a private client. I have a few questions about New Hartford, and would appreciate some straight answers. When you have an opportunity, please give me a call at (315) ***-****.He seemed so genuine, so sincere and helpful. We answered that email and had several conversations with that attorney; he was even going to meet us for coffee but then he all of a sudden he stopped communicating with us. That would be right before his boss [the Town Supervisor of the town he represented] made a presentation to the New Hartford Town Board.
His boss, you see, happens to be the owner of the company that administers the Willowvale Fire Company, Inc. Service Award Program (SAP). Guess Mr. Attorney decided he didn't need anymore information from us particularly if a friendship with us could interfere with his boss's livelihood.
Anyway...his beef with the Town of New Hartford was regarding a project proposed by BG New Hartford LLC the then owners of Consumer Square. According to the October 15, 2007 Zoning Bord minutes:
The application of BG New Hartford LLC, c/o Developers Diversified Realty. The intent for this application is to create a separate lot for an existing WalMart store and associated fuel station to allow separate ownership of those facilities.The Zoning Board voted to approve the application...next to the Planning Board.
However, it seems, according to Planning Board minutes dated October 29, 2007:
Discussion revolved around existing site deficiencies regarding the traffic signal and the main entrance driveway. The Board Members asked the Town Planner if there was any opinion on this application by the Town Attorney as it relates to these deficiencies and potential legal ramifications for correction if the Planning Board proceeds with action on this application and what it means for the responsibility for correcting those deficiencies. The Town Planner indicated that no opinion by the Town Attorney has been sought yet.The January 14, 2008 Planning Board minutes state:
Motion was made by Board Member Ellen Rayhill to table this application until the Town’s Legal Council determines that any further action by the Planning Board will not impede any responsibility for required site corrections (regarding the Traffic Signal and main entrance driveway) either by BG New Hartford, LLC, Benderson Development, or other parties that maybe involved...
WalMart Subdivision – Update.To the best of our knowledge, nothing more ever came of that application.
We have been advised by the Town Attorney [Gerald Green] to not act on this pending the resolution of traffic improvements inside Consumer Square. To not do that could be splitting that access road creating one owner on one side and one on another. We now have a traffic scope of engineering services that the Highway Superintendent and the Town Planner received to do a final evaluation of that and a Town of New Hartford recommendation of a fix for that road. Town Planner Schwenzfeier said we are going to be use a part of the retainer from Benderson to pay for it, but that our traffic consultant will look at the existing situation for a long term fix. It would take about six to eight weeks at a maximum to address this.
Chairman Arnold said he was informed that Consumer Square wasn’t built according to Final Approval Plans.
At the time, it was rumored around town that a Sam's Club might be coming to New Hartford. Maybe because the request was to put in a fuel station and Walmart generally does not have such a thing, but their Sam's Clubs do.
Now fast forward to the June 13, 2011 town board meeting where we learned that Benderson Development Co. had filed a Notice of Claim against the Town of New Hartford in 2010 and had now followed through with a lawsuit. Their stated cause was that the town had violated the Pre-Development Agreement by improperly using the Fees in Lieu of Mitigation funds paid by Benderson and they wanted those fees returned.
We also learned that a meeting took place between town officials and Benderson officials sometime in late June 2011 or July 2011, shortly after the lawsuit was filed. Since then, nothing has been said...not a word. We were told that "fireworks" would happen in August when the news broke about the lawsuit. But it has been completely quiet on the home front.
We are now suddenly hearing that a Sam's Club may be coming to New Hartford. Could it be?
Could it be that to put an end to a lawsuit that would be devastating to the Town of New Hartford a deal was struck whereby the Fees in Lieu of Mitigation paid by Benderson will be the very same fees that will be used to build the Clinton Road Extension, except now it will not only benefit Mr. Adler, but also Benderson because their fees will be used to put a road in front of their new development to be located on land purchased from the Yagers...namely a Sam's Club? Could it be that Benderson has decided to drop their lawsuit?
Happy days! Do the Yagers get to sell off more of their property to another developer, plus get to use the eminent domain proceedings to their advantage to get the biggest buck for their property where the road will be built? Is Sam's Club coming to New Hartford? Is it a win-win for everyone?
We have been at this for some time now...about six (6) years to be exact. We have learned a few things along the way. Like the fact that "political friendships" are much like serial bonds...they both have a Period of Probable Usefulness or PPU. Once that PPU expires, and sometimes before, the bond is done. However, these "political friends" always leave us with a few pieces of the puzzle..the challenge is putting the pieces together. We will have to wait to see how the pieces fit together this time.
By the way, according to a 1994 letter we stumbled across that was written to Joe Timpano who was then Town of New Hartford Comptroller...
"there is no stated enablement in Environmental Conservation Law or under SEQRA for "fees in lieu of mitigation"' nor has there been a reported court case in NYS affirming the legality of a developer mitigating its environmental impacts of significance (off-site) through the payment of a fee in lieu of mitigation...Guess there may be a good reason to keep our "developer friends" happy...the town can't afford to piss them off! Wonder what the PPU for "developer friends" is...!
The possibility exists, therefore, that a Court proceeding could determine mitigation under SEQRA through the payment of fees in lieu of mitigation...is illegal...Such a Court determination would require the repayment of the fees from developers in lieu of mitigation."