Town board’s counsel explains town’s obligations and developer’s rights to board of ed members
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August 13, 2010
by Christine Yeres
Toward the end of Tuesday’s joint town and school board work session, Clinton Smith of Wormser Kiley, counsel to the New Castle town board, explained to members of both boards and an audience of 100 residents the ways in which the town board is constrained in deciding what to grant the developer of Chappaqua Crossing. Following is the conversation among Smith and members of both boards.
Clinton Smith: The town board has to view this application through several legal prisms, some having to do with land use. The town is not necessarily free to make any decision it may choose. The town might face restrictions [in what it can choose] if growth can be accommodated. The town board has to meet certain requirements in evaluating the application for growth.
Without getting into the details of all of that, because a lot still remains to be seen through that prism. I want to emphasize that although I understand the school board’s position—the economics of it—the town has the same economic issue. The [decision on whether to tax condos as fee simple] applies to taxes for both town and school boards. But the town board has to make certain of its decisions based on a number of legal factors and analyses, and it’s not all a blank slate.
Board of Ed member Jeffrey Mester: I have not followed this as closely as I possibly could, but I’m trying to find out: What does the town get [from this project] besides the 6.5 acres?
Town Supervisor Barbara Gerrard: Given the fact that the developer is already in a second certiorari to reduce their taxes, it’s a matter of stabilizing our assessables. We’re responsible for the fiscal security of the entire town and to see the commercial base eroding the way it has…. One of the things the town board is insisting on is that we got the developer to increase the amount of commercial square footage, we got them to go up over 135,000 square feet [from 520,000 s.f. to 642,000 s.f.], because we think that’s a very good thing for the town.
But remember the traffic issues: You’re all concerned about traffic. All the traffic experts will tell you that commercial square footage is about 1.5 to 2 times the number of trips that are that generated by residential property. So if we say “all commercial” and make the whole property commercial with no children on the property, that creates huge issues of transportation and traffic. We wish we did have more options. We do know informally that the developer continues to say he is still interested in marketing it to empty nesters. The way they have the square footage—master bedroom on the main floor, two bedrooms—means they’re looking for that demographic.
It was the town board that insisted that the project be evaluated non-age-restricted, because during those public hearings residents brought up the possibility of non-enforcement [of age-restriction]. We thought those were very good suggestions. We thought that was the better way to evaluate the project. And if we’re fortunate enough that the developer markets it [to an empty-nester demographic] – other than the affordable units – that would have a much lower impact [on the schools]. And remember: we got it down from 348 units. We threw that out. And now the sizes of the apartments are smaller as well.
Board of Ed member Gregg Bresner: The town’s budget is $36 million. The entire taxes from Reader’s Digest to the town is $190,000 – about .6 percent of the town’s budget. And that applies to the school district as well. Isn’t it a more reasonable solution to cut expenses and make this problem go away once and for all?
Clinton Smith: That goes back to Jeff’s question, “What does the town get from it?” And you have to realize that the town is not a party to the transaction. The town is the approving agency. And one of those prisms [through which the board is obliged to look at the developer’s application] is the Fifth Amendment, which says that a person has the right to do what he will with his property, subject to reasonable regulation. That means that when you want to put a deck on your house you have to get planning board approval, but nonetheless that [approval] can’t be arbitrarily withheld. If the town is to say “No, go away,” there must be a rational, legally supportable basis in fact—and in law—for doing that.
Town board member Robin Stout: That’s the lawyer answer, and that’s fine. But my point is that once upon a time not very long ago, Reader’s Digest produced a lot more money and therefore we, the taxpayers, and the school district, had less of a burden because there was more paid by Reader’s Digest. One of our problems today is – you’re right—the commercial tax base has whittled to almost nothing. So at this point it’s not much good for anybody. One of the things the community has to decide is if we’re willing to afford a black hole up there, which means that the town expenses and school district expenses will be taken care of mostly by the residents.
Or will we be able to put that property to some productive use up there so that we can all get revenue? And yes, Jeff, as you said, we need to look at it and know whether it will be net revenue. But my concern is that change is coming and Reader’s Digest is leaving and we have to figure out whether we can get net revenue—and good net revenue—so that the tax burden on the average household is reduced.
Board of Ed member Jeffrey Mester: Speaking for myself, not the school board, if our revenues are a million dollars from this, it’s cheaper to lose that million dollars than to lose the three or four million dollars in [educating additional] students. It may be the lesser of two evils.
Town board member Robin Stout: Well, we have to do the projections and figure out whether there are net revenues; if there aren’t net revenues, then it’s not worth doing.
Clinton Smith: I would say, though, that from the town board’s point of view [and in view of its obligations as the approving agency], “worth doing” is not necessarily the be-all and end-all of the equation for the town’s approval action.
From Tuesday’s Joint Work Session, a general discussion of the developer’s rights and the town board’s obligations as lead agency:
For NCNOW’s complete coverage of Chappaqua Crossing, dating from 2007, click HERE.