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New Scotland Archives — The Altamont Enterprise, June 30, 2005

New Scotland variance approved despite Bethlehem’s objection

By Holly Grosch

NEW SCOTLAND — After a year with postponements and surprise roadbumps along the way, Michael Saccocio of Schenectady received a long-awaited variance from the zoning board this Tuesday.

He got permission to subdivide a 2.95-acre lot into to two 1.4-acre lots; one of the lots only has 25 feet of frontage on Krum Kill Road where 40 feet are required.

But, the disagreement over jurisdiction between the towns of New Scotland and Bethlehem has yet to be resolved.

Fifteen feet of relief is not an unusual request. However, there were two issues of concern. One was a New Scotland tradition—water and sewer—and the second caught most off guard—town jurisdiction.

Convoluted history

The Albany County Planning Board has given Saccocio’s request a negative declaration stating that his land actually lay within the town of Bethlehem and was out of New Scotland’s jurisdiction.

Saccocio was shocked at the county planning board’s rejection. He said he has been paying taxes to New Scotland on the vacant piece of land for 10 years. He wanted to subdivide it to build two houses: one for himself and one to sell to his brother.

New Scotland zoning administrator Paul Cantlin says Saccocio’s property is within 185 feet of the town’s taxing jurisdiction. Town lines and tax lines are different, he says.

He stated at an earlier meeting that town lines were determined many years ago based on a rock or a stream which may have moved over time, while the tax lines are precise. He said that the town’s authority has always been determined based on taxing jurisdiction.

"Where it was assessed is where it stays," Cantlin told The Enterprise.

Last fall, the zoning board was going to vote on the variance, but needed a super majority to overrule the county planing board’s decision. That means four out of the five members.

So, the vote was postponed two months because one member knew he was going to be absent. Then, at the scheduled vote, the board was still down a member because one of the zoning board members had been moved to the planning board by the town board.

The board was going to vote anyway, however, Saccocio was unexplainably absent. The board learned later that Saccocio was sick and in the hospital.

At this point, in October, the board could not postpone the vote anymore because it had been 63 days since the board closed the public hearing on the variance in August. By law, the board has to make a decision after 62 days of closing the public hearing or the variance is automatically approved.

The board denied Saccocio’s request on day 63, giving the reason that Saccocio wasn’t there to answer its last few questions, including if he received a letter from Bethlehem saying the town would give him two water taps.

Water problems

Saccocio had stated that Bethlehem told him that, the town would give him two taps. But, Bethlehem would not confirm it in a letter.

However, at the October vote, Keith Menia, of Vollmer Associates, New Scotland’s engineering firm, announced that Vollmer was filing a water application for the Assembly of God Church with the State Department of Environmental conservation. The church neighbors Saccocio’s land. While there are no guarantees, Menia said, Saccocio’s property will be in this area of water.

Saccocio has stated that he would prefer to have public water, and Bethlehem told him they have water to give, but if he needs to ,he can always drill a well.

Second time around

Saccocio reappeared at a New Scotland zoning board meeting this April, requesting a rehearing.

Usually, after a variance is denied, that exact same application cannot be resubmitted until a year later.

Louis Neri, the zoning board’s legal council, told the zoning board members that they had to grant the rehearing request because Saccocio was in the hospital and was not able to attend his public hearing and, as a result, the public hearing was never actually held.

Neri, at this time, had the series of events confused. Saccocio had missed an administrative hearing in October—the vote—but he was indeed present for the public hearing in August.

The board approved the hearing request under Neri’s advisement.

Later, when confronted about the reasoning behind granting the rehearing, Neri said that whether Saccocio missed a public hearing or a administrative hearing didn’t really matter.

The point is that, "A decision was never able to be made based its merits," Neri said.

In May, the zoning board was ready once again to hold a public hearing and then vote on Saccocio requests. Then, right before the zoning board meeting started, Mark Platel, Bethlehem’s building inspector showed up with a letter stating that Bethlehem does have interest in the property and would like to contest that the piece of land is located within the town.

Saccocio was once again caught off guard.

Neri recommended that the zoning board leave the public hearing open so it wouldn’t have to contend with the 62-day time limit again.

"Let’s see if we can resolve this other than law suits," he said.

"The town of Bethlehem is interested in this," Neri said looking over the letter quickly.

Platel is on vacation this week, and was not available for comment, but the letter he submitted last month reads: "The records of the town of Bethlehem indicate that the above property... is actually located within the town of Bethlehem, not the town of New Scotland. If correct, this board may have no legal jurisdiction to act upon the requested variance. I respectfully suggest that this issue be resolved by legal and executive officials of both towns, before any action is taken.... Records of the town of Bethlehem also suggest that there are other properties similarly situated (physically located in one town but taxed by the other)."

Neri said in May that he would recommend waiting, rather than have the zoning board vote and then have the town jurisdiction worked out in another forum. Lawsuits will take a lot longer, he said.

In May, the board and Saccocio agreed to wait.

Neri said this Tuesday that New Scotland has not heard from Bethlehem since it submitted the letter.

Neri said that he talked to New Scotland’s town attorney Michael Mackey since the last meeting and "while the town of Bethlehem is entitled to their opinion, we do believe it’s in our jurisdiction."

Bethlehem’s view

In the fall, The Enterprise talked to Bethlehem’s assessor, David Leafer.

Leafer said that New Scotland and Bethlehem have a number of parcels where the town line and tax lines don’t match up. He said that he was taking a "look see" to identify which parcels have different town lines and tax lines.

"There are a number of pieces up and down the border," he said.

He said he was starting to combine a list with other neighboring towns’ assessing departments to make sure that at least each piece of property is assessed by a town.

"There may be a piece that still need a tax number," Leafer said.

He added that, years ago, an agreement between Bethlehem and New Scotland said the zoning jurisdiction was going to be determined by the tax jurisdiction. Although, he said, both towns in the near future will have to determine jurisdiction over the pieces of land that are in limbo.

A policy to follow

This Tuesday, Cantlin said that while all parties can have their varying opinions, New Scotland has to have a policy to follow and that policy has been that jurisdiction is based on tax lines. The town’s zoning department is going to continue to use this policy unless the two town boards sit down and settle it differently, he said.

New Scotland’s assessor, Julie Nooney, told The Enterprise this Wednesday that she, Leafer, and the Bethlehem and New Scotland town supervisors did meet once to discuss what to do with these properties.

"We know we can’t move the town line, but we can switch assessing jurisdiction," she said.

She said the process is in its preliminary stages and that she is now getting together one map that has both New Scotland and Bethlehem tax and town lines on it, to see if some land swapping is feasible.

She said, in most cases, there is a piece of property where the house is in New Scotland but the backyard is in Bethlehem, or the house is in Bethlehem, but the side yard is New Scotland, so that the landowner receives two tax bills, "which is kind of ridiculous," Nooney said.

She said both towns have an interest in cleaning it up.

She said, in some cases, a whole piece of property is within the town lines of Bethlehem but has been taxed by New Scotland, such as the Assembly of God Church on Krum Kill Road.

She said they have to look at the history of natural landmarks to understand where the town line has moved.

She said recently that New Scotland did give up a piece of taxing jurisdiction to Bethlehem. The Coleman property next to the Price Chopper in Slingerlands was primarily in Bethlehem and the town of New Scotland had been taxing a small piece of the land, Nooney said. New Scotland handed it over to Bethlehem, she said.

"There’s no advantage to the town in this, except that it clarifies these zoning issues," Nooney said.

The town however, Nooney said, cannot force a property owner to switch his or her taxing jurisdiction.

She said she thinks the trade has to be signed by both town supervisors, the property owner, and a judge.

"All the parties must agree," she said.

If New Scotland comes to an agreemnt with Bethlehem to present to homeowners, the hope is that it will be a "somewhat close to even swap," so that Bethlehem nor New Scotland would really be loosing tax dollars, Nooney said.

She said the advantage to the town in swapping assessing jurisdiction, is that it will save time and money in the maintenance of the assessment roll and sending out tax bills.

The vote

At the meeting, the zoning board members all agreed to follow New Scotland policy, but there was some disagreement between the board members on a water stipulation.

Adam Greenberg said he would like to add a stipulation to the approval that the variance is only if Soccocio secures water and sewer for both lots, whether it’s from a public or private system.

Zoning board member Wayne LaChappelle made a motion to approve the variance as is, with no stipulations.

Cantlin said that, if a building permit is involved, which it will because Saccoccio stated that he intends to build two houses, the county health department would have to approve the water and sewer system.

LaChappelle said that he didn’t see a need for Greenberg’s stipulation because it was something the health department would be doing anyway.

Greenberg said his concern was createing a variance that will never be used.

"You’re not the health department," Neri told Greenberg, and, "You’re not doing a subdivision."

The variance before the board, Neri said, is to allow Saccoccio to have two lots, one of which doesn’t have enough road frontage.

"He doesn’t have to build house on it. I understand your concern, but I don’t think it’s within your power," Neri said.

Greenberg proceeded with the motion to include a water and sewer stipulation. Zoning board member William Hennessey seconded it.

Then, planning board member Cynthia Elliott, who was in the audience waiting to represent an applicant later in the night, pointed out that, if Greenberg’s stipulation is attached, then Saccocio has only one year to acquire water and sewer for both lots and, after that year, if he doesn’t satisfy the condition, the variance would be void. Cantlin confirmed Elliott statement.

Greenberg nodded in understanding and said that she had made a good point and withdrew his motion for the stipulation.

Then, LaChappelle’s motion to approve the variance as is received unanimous approval.

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