Pork Lawsuit...

From Tea Party Coalition of the United States

In a State of New York Supreme Court, Appellate Division decision dated June 24, 2010 that will send shockwaves throughout New York State, the Third Department Appellate Division revived a citizens’ lawsuit that seeks to outlaw billions of dollars in cash grants to private firms for alleged “economic development.”

Download decision.

The Court agreed with the plaintiffs’ main contention that the State may not funnel its funds through public benefit corporations such as Empire State Development Corporation as a means to avoid the Constitution’s ban on gifts to private firms.

The case now goes to the New York State Court of Appeals. Should the plaintiffs win the case, the current practice of giving billions of dollars of tax money to private firms, many of which then kick back campaign donations to politicians, will abruptly end. The briefs were filed on February 26, 2011.

James Ostrowski, a solo practitioner and tea party activist from Buffalo, New York, is counsel for the plaintiffs. Ostrowski said his group will now file a class action suit against every municipality in the state that provides cash grants to private firms under a similar but separate clause in the state constitution.

We wrote to Jim Ostrowski this evening and he replied to our email:

"The Court of Appeals is hearing the State's appeal on October 12th in Albany. We are having a large rally on that date.

Please see the webpage.

Hope to see you there."

Jim

For more information on this important court case, put 'Pork Lawsuit' in Google.

Don't cry for me...

Last Thursday evening, at 6:00 p.m., a Public Hearing was held regarding the "taking" of the Yager property by eminent domain.

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 [22] against the use of eminent domain and one [1] 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) ***-****.

Thank you

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.

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...

The January 14, 2008 Planning Board minutes state:

WalMart Subdivision – Update.

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.

To the best of our knowledge, nothing more ever came of that application.

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...

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."

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...!

Gifts and Loans...

Article VIII of the NYS Constitution:

§1. No county, city, town, village or school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking...

§2. No county, city, town, village or school district shall contract any indebtedness except for county, city, town, village or school district purposes, respectively...

Tomorrow, at 11:00 a.m. according to Fiscal Advisor's website, the Town of New Hartford is selling $1,048,000 Bond Anticipation Notes to include $600,000 of Bond Anticipation Notes to fund the right-in, right-out along State Route 840 and to build the Clinton Street Extension [to include the taking of the Yager property].

Also being pledged is $500,000 Fees In Lieu of Mitigation fees paid by other developers.

The bid announcement for the construction of Route 840 Eastbound Ramps to the New Hartford Office Park was in this Sunday's Observer Dispatch [08/07/11]; the pre-bid meeting was held this morning and the bids will be opened on August 17, 2011, the date of the next town board meeting.

According to the NYS Dept. of Transportation website, New York Highway Law Article 52...no construction can take place on a state highway except in accordance with the terms and conditions of a work permit issued by the commissioner of transportation or his duly designated agent.

The right-in, right-out is on a state highway. We contacted the NYS DOT and FOILed a copy of the work permit that was issued for the work on State Route 840.

According to the NYS DOT, in an email received today:

No Highway work permit has been issued at this point and will not be done until the Town has initiated work on the Clinton Street Extension.

Interesting...

In addition to business park property which is to be used to build the Clinton Street Extension [currently private property owned by Mr. Larry Adler], some of Mr. Yager's property is also needed to build the Clinton Street extension. The Yager property is slated to be taken in an eminent domain proceeding commenced by our town 'leaders', some of whom for some reason seem all to willing to do Larry Adler's 'dirty work'.

That brings us to the Public Hearing on the taking of the Yager property...a hearing that will be held tomorrow evening starting at 6:00 p.m. in Butler Hall. Without Mr. Yager's property, the Clinton Street Extension cannot be built and therefore; the right-in, right-out according to the DOT, is at a standstill.

Has anyone noticed that so far we have not mentioned any property that the $600,000 will be used to improve includes land owned by the Town of New Hartford? That is because, right now none of it is town property...it is private property and state property.

That brings us back to Gifts and Loans and the $600,000 Bond Anticipation Notes that will be sold tomorrow at 11:00 a.m.

Again, according to the Fiscal Advisor's website, the Notice of Sale says:

The Notes are general obligations of the Town and the faith and credit of the Town are pledged for payment of the principal of and interest on the Notes. All the taxable real property in said Town will be subject to the levy of ad valorem taxes, sufficient to pay the principal of and interest on the Notes subject to the statutory Limitations of Chapter 97 of the Laws of 2011...

At this stage of the game, how can the "faith and credit" of our town be pledged to bond for work on property we neither own nor possess a work permit from the NYS DOT to begin construction?

On July 18, 2011, a letter was sent to the town board, the town attorney, and the town clerk. No responses were ever received from anyone...which, of course, is their choice and SOP [standard operating procedure] in the Town of New Hartford.

We urge all town residents to read our letter to the town board...it is definitely an eye-opener and you will probably learn things that you will be amazed to know.

Please attend the Public Hearing on the taking of the Yager property tomorrow evening at 6:00 p.m. in Butler Hall.

Notice of Public Hearing - Village of New Hartford, NY...

From the Sunday July 31, 2011 Observer Dispatch Legal Notices:

PLEASE TAKE NOTICE, that pursuant to Section 21-2100 of the Village Law of the State of New York, the Village Law of the Village of New Hartford, New York and Article 13-D of the General Municipal Law of the State of New York, the Village Board of the Village of New Hartford, New York will hold a public hearing on August 8, 2011 at 7:30 pm at Butler Memorial Hall, 48 Genesee St., New Hartford, regarding the application of The Sunset Home of Utica ("Sunset") regarding its premises and improvements located in the Village of New Hartford, commonly known as The Community at Sunset Wood ("Project") for designation under Section 290 of the General Municipal Law as a community facility with programs for the elderly, with Sunset as operator thereof.

The application further requests that the Village of New Hartford assist Sunset to defease all tax exempt bonds currently outstanding concerning the FHA-insured Mortgage Loan for the Project, to thereby accept title to the Project and lease the Project to The Sunset Home of Utica on a non-recourse basis in connection with a proposed FHA insured refinancing of the Project.

Janet Durr, Village Clerk

OD 7/13/2011.

Where's the outrage?

We have to laugh, although it's not really very funny...

Don't take away my curbside trash program, but silence on the town bonding for millions so that a private developer can build his business park.

According to Supervisor Tyksinski and some council members, people have been writing, calling and stopping them on the street to voice their opposition to the curtailing of the curbside trash program due to financial problems created during the Earle Reed administration.

Hell, we've even heard some people at town board meetings speaking out and letting their elected representatives know how they feel about the loss of curbside trash pick-up. To quieten the masses on this issue, the town has now developed a tag system for those who desire curbside trash pickup.

But where is the outrage at the spending of tax dollars to finance Mr. Adler's business park...not only town tax dollars, but school and county too. Where is everyone on an issue that will impact them until 2023 and possibly beyond?

Most people in town we have spoken to don't even seem to know the story behind the PILOT Allocation Agreement that will be in effect until 2023. Or the moving of the Empire Zone boundary so that property taxes paid by The Hartford and other future tenants in the business park can be recovered through the state program for up to ten (10) years making them whole on property taxes while taxpayers are left funding the infrastructure costs associated with increased development.

Now for the second time, our elected officials are willing to bond to cover the cost of Mr. Adler's private development even trying to convince us of 'future benefits' to the town and at the same time telling us that no independent audit of town finances is available and hasn't been since 2008.

Remember in 2009 when we were all told 'Vote YES' and taxes will not increase. How did that work out for everyone when they got the 46% increase? What do you think caused the increase...where do you think the money was spent?

Have we become so apathetic that we only care about our own 'wants and needs' at any given point in time?

Imagine if some of that outrage on the curtailing of the curbside trash program were to spill over to the eminent domain issue at hand. Imagine if our elected officials were sent a clear message that we don't want to continue to fund a private developer.

It is pretty sad when our elected officials do the bidding of a private developer to invoke eminent domain against a long-time town resident and business owner. What will be next, will Mr. Adler NEED some more property on Woods Highway? Will he NEED some property on Seneca Turnpike?

We only hope that people will attend the Public Hearing in Butler Hall on August 11th at 6:00 p.m. and stand up in support of the Yagers and in support of requiring private developers to put their OWN PRIVATE money on the table to fund their private projects.

By the way, the council members representing the areas in closest proximity to Mr. Adler's development are up for re-election this year and they each have an opponent. Perhaps residents in Ward 2 & 4 should begin by questioning them on where they stand on the eminent domain/taxpayer bonding for private development issue.

Ward 2 - Christine Krupa Phone 315-733-7500, Ext. 2332
Email: ckrupa@town.new-hartford.ny.us

Ward 4 - Rich Woodland Phone 315-733-7500, Ext. 2332
Email: rwrich94@aol.com

Everyone, YOU have the power!