Annexation proposed for development in New Hartford, Kirkland

Building permits denied in Cherrywood senior community

By ELIZABETH COOPER

Observer-Dispatch

Posted Jun 12, 2009 @ 04:27 PM

Last update Jun 12, 2009 @ 07:05 PM

Confusion over construction plans in a New Hartford development has sparked a push for the annexation of 11 acres of Kirkland land.

The Cherrywood Community straddles the border between the towns, and it seems New Hartford erroneously gave building permits for four homes that have been built on the Kirkland side.

The homes in the 115-acre community for seniors are linked up with the New Hartford sewer systems. The people who live there are registered to vote in New Hartford and may even have been paying New Hartford taxes.

For one resident of Cherrywood’s Kirkland side, it’s time to resolve the situation.

“At this point, I don’t know where I’m supposed to be,” resident Don Fluty said. “It is nice to know you are where you are supposed to be and doing the right thing.”

Now, Cherrywood developers want New Hartford to annex the property, and Kirkland Town Supervisor Bob Meelan says he doesn’t mind. But New Hartford officials are balking.

“Once you start, where does it stop?” said New Hartford Codes Officer Joseph Booth said, who pointed to the possibility such a move could lead other developers and business owners to seek the same thing, making municipal boundaries subject to constant shifting.

The Town Board has scheduled a special meeting for 6 p.m. in the Butler Memorial Hall Community Meeting Room.

How it happened

The Cherrywood Community first sought its permits in 1988, and soon after, an agreement was signed between New Hartford and Kirkland for sewer service.

The problem is, that agreement did not contain provisions for permits or codes inspections for the buildings.

Former development owner Ralph Humphreys said he had been told a separate agreement addressed the building permit issues, but no one can locate that agreement, and Booth questioned whether it ever existed at all.

Booth said he stumbled upon the mistake when he became Codes Department director about a year ago.

“Once I found this out, I refused to issue any more permits,” he said.

The Kirkland land is zoned differently from the New Hartford portion, so Kirkland didn’t want to issue the permits either.

Humphreys, a former New Hartford supervisor, became a partner in the endeavor in 1990, and whole owner in 1994.

In 2004, he sold the property to Alvar Larson, but Larson has since died and Humphreys holds the mortgage and is again involved.

It wasn’t until three or four years ago that houses began being built on the Kirkland portion of the land, Humphreys said.

Four building permits were wrongly issued by New Hartford for the Kirkland lots before Booth spotted the error.

One woman who wanted to build on one of the Kirkland lots then sued both towns for a permit and the court issued an order that New Hartford give her a one.

Though the court order only applied to the one residence, the developers nonetheless began construction on two more, though they did not have permits from either New Hartford or Kirkland.

They now want Booth to issue certificates of occupancy for those structures and one other that has one of the erroneous building permits, but he has refused.

Possible annexation

The Kirkland town government has passed a resolution that would allow New Hartford to issue the permits. Booth, however, said he doesn’t want to do that unless a full agreement is in place.

Humphreys said annexation would be the simplest and most inexpensive way to handle the situation.

“It solves all the problems now,” he said. “Agreements are a never ending because situations change.”

But opponents to annexation say the same objectives could be achieved with an inter-municipal agreement.

And Meelan said he would prefer that route, since that’s what’s been done in the past when development parcels have overlapped his borders.

“I don’t know why they opted not to do that with these parcels,” he said.

Similar annexations are not common in New York state, but they are not unheard of, said Patricia Salkin of Albany Law School’s Government Law Center.

“It’s when it serves a legitimate public purpose,” Salkin said of cases where courts ruled in favor of annexations.

Annexations for senior living communities have been upheld in court, and it’s likely Cherrywood would be viewed the same way, she said.

“There is case law from the Hudson Valley recently that supports this,” she said in an e-mail.

The most recent local case in which one municipality annexed land from another was when the City of Utica absorbed the 225-acre parcel that is home to the Masonic Care Community's Acacia Village from the Herkimer County Town of Frankfort.

Local residents will have the chance to give their views on the topic at a July 16 public hearing. The time and location have yet to be announced.

Reaction in New Hartford

New Hartford Councilman Rich Woodland said he thought the idea of annexation could work.

“In concept, it looks good,” he said. “Let’s just see what the people have to say.

But Councilman David Reynolds said he believes an inter-municipal agreement was the best move.

“I think we should cooperate with the Town of Kirkland to make sure codes are met and the projects are able to proceed,” he said. “I’m not sure annexation is the answer, however.”

Town Supervisor Earle Reed referred questions to Woodland.

Councilwoman Christine Krupa said she was not wedded to either option.

“Whichever is legal and whichever will be the quickest for the parties involved,” she said.

Councilman Robert Payne II said he was still reviewing the situation, and pointed to the public hearing.

“This process, along with feedback from council and town staff, will help in determining if annexation makes sense for the town and will benefit those residents directly affected,” he said in an e-mail.