The latest round in the battle over the site of a new county jail went to the village of Herkimer and could have the county looking for another site for its proposed jail.
Herkimer County has been pursuing plans to build a new correctional facility at the former P&C Food site on state Route 28 - expected to cost between $33 and $34 million - due to the lack of space at the current county jail, which can house 41 inmates.
The Appellate Division of the state Supreme Court vacated an earlier judgment by Judge Erin P. Gall, which declared null and void the Feb. 6, 2012, amendment to the village of Herkimer’s zoning ordinance. The amendment would not allow for the construction of a correctional facility, correctional institution or jail in an industrial or central commercial district that is zoned C-3. Gall’s decision also ordered the village to grant access to sewer and municipal services pending the county’s resubmission of an application.
“We agree with the village that the record is inadequate to make a determination, based upon a ‘balancing of public interests’ whether the county is immune from the requirements of those amendments with respect to its siting of the proposed facility,” the Appellate Court decision stated.
It also stated state law regarding the siting of correctional facilities is limited to requiring commission approval of a site.
“The New York State Legislature has not directly or impliedly expressed any intent ‘to trump local efforts to regulate the location of (correctional) facilities through the application of the zoning laws,” the decision stated.
The appellate court also rejected the county’s contention that the amendments to the zoning law “violated the principle that zoning is concerned with the use of land, not with the identity of the user,” adding the amendments were directed at land use.
“The issue now comes down to balancing the interests, to determine whether the county’s interest trumps village zoning,” according to attorney Michael Longstreet, of Longstreet & Berry, LLP, Syracuse, who is representing the village in the matter.
The main test is whether or not there are other alternatives, he added.
A case that was used in the county’s argument was one in which an airport was seeking to expand, according to Longstreet. In that case, the court determined there was nowhere else to go and the project was in the public interest. In this case, he said, it has not been determined that there is no other site available.
“Once a jail is located there, it takes the property off the tax rolls forever,” added Longstreet. “That’s 28 acres of commercial property. If a big tenant comes in there, everybody’s going to be smiling.”
Page 2 of 2 - The next step in the process, he said, will be to engage in an exchange of information with the county. He said he would request county files and question decision makers.
“Ultimately, there will be a hearing if we get that far,” Longstreet added.
“It has been sent back to Herkimer County Supreme Court for the court to develop a record so a balancing test can be performed to see if the county is subject to the village zoning law,” said County Attorney Rob Malone.
He didn’t know what the time frame would be.
“There are a lot of variables. There can be preliminary proceedings and the court will most likely set dates for things to be accomplished,” said Malone.
Another issue, according to Longstreet, is whether or not the owner is willing to sell the property. Attorney Richard James, of Mackenzie Hughes, LLP, Syracuse, who represents site owner Richard Grossman, president of Gibraltar Management Company, of Tarrytown, contacted Longstreet about the case and indicated in an email message that his client “does not intend to sell the land voluntarily and sincerely appreciates the village’s efforts to stop the condemnation.” He said it has never been clear how much of his client’s land the county would need for the jail site and added he became involved in the case after the site was chosen for physical testing.
When contacted Tuesday afternoon, James said he didn’t think his client had ever been interested in selling the property to the county.
“His hope was to develop it for commercial purposes, but it’s difficult to develop something when this cloud hangs over it, that the county could take it away at any time,” said James.
If the owner does not want to sell the property, County Administrator James Wallace said Tuesday the county would consider taking it by eminent domain.
In February 2012, the Herkimer village board reaffirmed its resolution to amend a zoning law to prohibit the construction of a correctional facility, correctional institution or jail in an industrial or central commercial district that is zoned C-3. Mayor Mark Ainsworth said at the time the construction of a jail would go against the village’s long-range economic development plan and the loss of another property off the village tax rolls would place further financial burden on residents. He also said village residents were opposed to having a jail constructed in the village.
Gall’s Aug. 23, 2012, decision declared the amended zoning ordinance “null and void” and ordered the village to grant access to sewer and municipal services pending the county’s resubmission of an application. The county hoped at that time to move forward with construction, but the village chose to appeal the decision.