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New Scotland Archives — The Altamont Enterprise, June 5, 2008

Backlash from Bender farm
MLF Enterprise threatens New Scotland

By David S. Lewis

NEW SCOTLAND – The owners of the Bender melon farm have threatened legal action if the town devalues their land with new zoning.

The 179-acre site was listed for sale at $4 million, although it was assessed at only $730,000.  When Cazenovie-based developer, The Sphere Group, announced plans to buy the property and build a large-scale retail shopping center on it, New Scotland residents protested and petitioned the town to adopt a moratorium, so that zoning could be brought in line with the town’s comprehensive land-use plan.

On May 7, the day the town board adopted a six-month moratorium on commercial development for projects over 30,000 square feet or larger, Town Hall received a letter from the attorneys representing the landowners, MLF Enterprises.

The letter urged the board not to pass the moratorium and promised that the owners would “seek all available legal remedies” if any changes are made to the town’s zoning law limiting the size and type of commercial development, as it would devalue the owners’ investment in the land.

“I think it is an expression on behalf of the landowners showing concern for the zoning change, and the possibility that it would devalue their property,” said L. Michael Mackey, the town’s attorney, of the letter, which came from the law firm Higgins, Robets, Beyerl, & Coan, P.C. and was signed by Maura C. Mottolese; presumed to be the daughter of Dr. Patrick Mottolese, one of the founding partners of MLF Enterprises.  “And of course that’s a valid concern,” said Mackey.  Maura Mottolese did not return repeated calls from The Enterprise.

Mackey said that the possibility of the town losing such a battle in court would be slim.

“I’m not worried,” he said.  “The Court of Appeals has ruled that even a reduction in the property’s value due to a zoning change isn’t reason to overturn the new zoning. 

“The owners have to be left a reasonable use of the property; in other words, you can’t say, ‘nothing but a park,’ for example, but the courts give the municipalities a great deal of deference in defining what is deemed ‘reasonable,’” he said.

Mackey said that the courts give all towns a great deal of discretion in enacting zoning changes and almost always uphold them, and that, although there’s a legal requirement that owners be allowed ‘reasonable use’ of their property, that doesn’t mean unlimited use.

“…I am certain that whatever changes might be made in New Scotland will be done properly,” said Mackey, “and so it couldn’t successfully be challenged.”

Property owners are deemed to have vested rights in the current zoning when they have expended substantial funds and undertaken substantial construction, so it requires both of those, said Mackey.  As there has been no construction, the town is within its rights to change the zoning, he concluded.

Advisors, aided

The town board appointed five members to the Citizens’ Zoning Advisory Committee to assist in revamping the town’s zoning code, aligning it with the comprehensive plan the town adopted in 1994.  The plan, which advocates commercial development of a size and kind designed to serve the interest of the town, also advises against large retail centers that target a more regional market, but the town’s zoning law is not so specific. 

The committee has only a few months to draft a code that reflects the town’s desires for development, as expressed by the comprehensive plan.

The committee is not going at it alone, however; the town board is hiring a professional planner, Mike Welti of Behan Planning Associates, to aid them with the necessary research and help them plan map out effective strategies.  The board received a proposal from the planner for a four-month timeline for drafting the new code. 

Among the tasks offered in the proposal are research, drafting the zoning language, and four committee meetings.  Welti would set the agendas and lead discussions.  Hiring the planner would cost the town $12,900, plus an additional $3,500 should the board choose to have Behan Planning Associates to facilitate a public workshop.  The bulk of the cost, $3,500, would go to research and the actual drafting of the zoning language, $4,700.  

 “That hasn’t been examined in any detail; we’ve kept that in reserve,” said New Scotland Supervisor, Tom Dolin, on the likelihood of contracting the planner to lead the public workshop. 

“Everyone wants to get into the process a little bit before they make that decision,” he said.

Will there be a chance for the public to have input on the zoning changes?

“Absolutely,” Dolin confirmed.  “At least one meeting; there could be two, even.”

According to Dolin, Behan Planning Associates had been contacted before the moratorium was adopted, and the town did not request proposals from other planners in order to expedite the process.

“We have the option of going out to bid, or requesting proposals, and because of the urgency of the issue here, we just decided to try to secure someone’s services as quickly as possible,” he said. 

“Mr. Reilly felt strongly that we should hire some one from outside of the town,” said Dolin of councilman Richard Reilly, who suggested Behan Planning and Associates..  “And the board generally agreed with that.”

 “I think Mr. Reilly’s idea was a good idea…to find someone outside the town,” said Dolin. 

He also said that, due to the limited role the planner would play, taking proposals wasn’t really necessary.

“The planner’s role here is not dominant; it’s similar to hiring a lawyer.  They’re all presumably qualified,” said Dolin.  “They are advisors, not decision-makers. You listen to their advice, weigh it, and take what you want of it,” he concluded.

Sphere stalled, silent

Sphere Group managing partner, Gregory Widrick, would not say this week whether the company had closed on the 179-acre property, located at the corner of routes 85 and 85A. 

Widrick also declined to comment on the company’s continued interest in the project, or even whether he had heard of Behan Planning Associates.  Sphere representatives had said earlier that a moratorium would put their plans in “suspended animation.”

Sphere group attorney, Robert H. Feller, said he hadn’t heard the sale had closed, but said he couldn’t be certain.

Feller had, however, heard of Behan Planning Associates.

“I know John Behan and Mike Welti, and I have respect for both of them,” said Feller in an phone interview Wednesday.  “I have worked with John on several projects, and I think he is a good, solid professional.”

Feller said that Sphere would continue to send representatives to town board and committee meetings, but, until the zoning law revisions were complete, there is no way to tell whether the developer would eventually submit an application or not.

“Well, the environmental impacts and the other studies would be done at the time we would submit the application, and certainly the possibility exists that we might never be able to submit an application, or it might be for a project that is very different than the one we are considering right now,” he said.  He pointed out that they had volunteered to do studies on a number of “parallel issues” at their own cost, had the moratorium not been adopted.

“The town chose this path, and this is now the path we are on,” said Feller.  “Of course it is going to depend very heavily on what the outcome of the zoning changes are,” he said, and concluded by saying that the developer was trying to keep as many options open as they could.

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