NEW SCOTLAND — A sewer extension may not be built because two property owners will not grant easements, and eminent domain proceedings may be too costly for the town to pursue.

After months of negotiations, the Heldervale Sewer extension Number 4 along Route 85 in the commercial corridor and Mason Lane, may never happen because New Scotland can not secure easements allowing the town to place the sewer utility lines in the ground on private land.

Resident James Quaremba told The Enterprise this week that he doesn’t want to grant an easement because the sewer project benefits only a few and most certainly not him. He said he would like the town to "treat all people fairly."

At last Wednesday’s town board meeting, council members discussed moving forward by forcing the easements through eminent domain proceedings, — governmental taking of private property for public use. But it appears that the town may not be able to afford this legal process.

Town Attorney Michael Mackey advised the board that eminent domain proceedings can be very expensive with litigation and appraisals.

The town would have to hire an attorney who is an eminent domain expert to take the residents to court.

Town Engineer R. Mark Dempf said that negotiations have stalled and the town at this point has to decide if eminent domain proceedings are feasible within the budget of the sewer project, or if the project altogether is lost.

Dempf said he has been working on this Heldervale sewer extension for two years, and has been trying to work out easements for a year.

The town already has a highway right-of-way of about 50 feet, but Mackey said that the town does not have the right to put utilities within that highway right-of- way without separate legal easements for utilities.
"I’m a little dismayed," Dempf said, because residents have allowed personal issues to get involved.

Heldervale, New Scotland’s only sewer district, currently services 48 connections — 47 are residential and one is commercial.

This sewer district dumps waste into Bethlehem’s sewer system and New Scotland pays rates to Bethlehem for this service.

Extension Number 4 would service about 40 more connections. The extension would provide connections for 12 existing homes, and allow for 19 future residential connections. Nine commercial properties are also included in the proposed extension. Those commercial properties include New Salem Garage, Stonewell Plaza, and Olsen’s Nursery.

The maximum amount proposed in February to be expended on the project was $181,000. If the town chose to move forward with eminent domain proceedings, it may have to change the allowable bonding, Supervisor Ed Clark told The Enterprise.

Dempf said that the town has already used the contingency to get to the point he is at now.

The eminent domain proceedings would have to be funded solely by the people within the proposed extension, Mackey said.

The process would include getting a title search, a description of the property it wants to obtain, and an appraisal to determine the value, Mackey said. If there is insufficient money budgeted to accomplish this, then the town would have to amend the petition and circulate it again, with all the people who originally requested the extension agreeing to it still with the new expenses.

Also, Mackey said, there is a limit set by the state comptrollers on how much each user in a sewer district can pay.

Three choices

At this point, Dempf said, the town has three choices: The project dies; the town continues to try to get agreements out of a few people; or it pursues eminent domain.

Dempf said at last week’s meeting that there are as many as three people holding up the project by not allowing an easement. Supervisor Clark told The Enterprise this Tuesday that it is now down to two people.

Clark said that both of these individuals already have public sewer service because their houses are on Old English Road, which was part of the original sewer district. Old English Road connects to Mason Lane, forming a squiggley L.

The town is not asking to own or take the land, just to have the legal right to place the pipe in the highway right-of-way, Dempf emphasized.

Mackey stated at the public meeting that, if there were just one person the town would have to take to court to get an easement, then it may be economically feasible — within the budget of the sewer project. But the town can not afford three separate eminent domain proceedings, Mackey said.
"Realistically it’s a loss," he said.

Dempf added that there is sometimes an option of moving the pipeline to avoid needing an easement from the last few residents, but, in this case, he has exhausted and analyzed all the other possibilities. He has already moved the line once on the plans, and with permission come into another person’s property further to avoid the property of a fourth person who did not want to grant easements. But there is no way around the remaining stickler’s property, Dempf said.

Resident objects

James Quaremba told The Enterprise this week why he does not want to grant an easement to the town.

Quaremba’s house is on Old English Road and he has public sewer, but he owns a one-acre parcel on Mason Lane that serves as his backyard. He said he was unwilling to grant an easement for a couple of reasons.
"I don’t need sewer on my property," Quaremba said of his one acre.

When The Enterprise called him this week, he said he was surprised that the town was considering eminent domain proceedings, adding that he had submitted a letter to the town earlier requesting that they not.
"The use of eminent domain would be a gross misplacement of duty," by the town board, said Quaremba who is a retired lawyer.

He asked how the town could justify eminent domain proceedings when the project would only benefit a few.
The sewer project will make some properties "considerably more valuable," he said. It appears to him that the town is "favoring some over others," he said. Proceeding with eminent domain would be "some kind of Christmas present for a few," he said.

There has been increasing national debate about the use and abuse of eminent domain, Quaremba said.

He said he made the argument in his letter to the town that this small sewer project does not have enough of an overriding public benefit for the use of eminent domain.

It does not benefit the town as a whole, he said.

There are two main reasons, why Quaremba is against granting easement to the town for this project.

One is that he purchased his one-acre Mason Lane parcel from a neighboring landowner who owns four parcels, he said. The road, he said, runs right through his parcel, which should be and is a buildable lot based on this area’s zoning. But, with the road running through his land, it makes it difficult to develop if he grants an easement, then the value of this land continues to diminish even more, making it even less developable, he said.

Quaremba wants the neighboring landowner to give him more land to make the adjustment since, he said, she did not sell him a usable acre to begin with, with the road in the way. He said that he is not very happy with the neighboring landowner who would substantially benefit from a public sewer making her four lots more valuable, in the meantime depreciating the value of his one acre.

At this point, he has no intentions to develop the land, and does not need sewer service, Quaremba said. He enjoys the one acre as a buffering woods and beautiful backyard, but, in the future, if he does need to sell the lot to build on he would like to have that option, he said.

He conceded that he should have learned more information about the one-acre parcel before buying it.

Besides his unhappiness with the arrangement between him and the neighboring Mason Lane landowner, Quaremba added that this is not his only concern with the sewer project.
"An easement would take more [of his] land that might be developable," Quaremba said, so the value of his property goes down. Some might make the argument that public sewer will increase the value of the land for everyone, but Quaremba said, to him, preventing encroachment is more valuable especially since he doesn’t need sewer for his wooded backyard.
"I don’t need the sewer and it will cost me money," Quaremba said. He will be assessed for a portion of the cost of the extension.

He questioned the reason for the town’s urgency to want to move forward with eminent domain.

Supervisor’s view

Ed Clark responded to The Enterprise on Tuesday that the urgency after all this effort, is how can the town keep going on this project and get cooperation. There is an urgency, Clark said, because the board doesn’t want to have to give up on everything.

So far, the town has not offered residents any compensation for the easements, because the utility easement request is within the already existing highway right-of-way — the town is not requesting any additional footage of easement, Clark said. But, Clark added, he is not saying that the town might not be willing to compensate financially.

Mackey told The Enterprise there are three ways the town can acquire an easement: It can be given to the town, sold to the town, or acquired through eminent domain.

In an eminent domain proceeding, the court determines how much the landowner should be paid, Mackey said.
While Quaremba does not intend to develop the land right now, Clark said, with public sewer service, "His land is worth quite a bit more if he ever changes his mind."
There are a few residents within the extension that are in "dire straits," Clark said. "There is a need" for sewer service and the town tries to offer "service to the community wherever we can," Clark said.