Errors could mean lost open space
Court: Man can move into home
By David Paulsen Poughkeepsie Journal February 4, 2006

WAPPINGERS FALLS — When a house started going up at the north end of Wildwood Drive, Ronald Lafko knew something was wrong.
Lafko's father, Fred Lafko, built the Wildwood Manor subdivision in the early 1960s with a promise to the Town of Wappinger that he and his business partner, David Alexander, wouldn't develop the five acres next to New Hackensack Road.
The developers kept that promise for 40 years only to have it broken inadvertently by the town itself because of mistakes made by town officials starting at the time of the subdivision's approval.
Those mistakes could prove costly. In December, a federal judge ruled the town must allow the property's present owner to move into his finished house. The judge also ordered the town to pay the owner $57,750 for the time he was barred from living there, and attorneys' fees for the town and the property owner could push the town's cost much higher.
Land-use issues
Town officials have criticized the ruling, saying the precedent could undermine the ability of municipalities statewide to regulate land use.
Wappinger is appealing the court decision.
"There was a calamity of mistakes made by the town over 40 years," Supervisor Joe Ruggiero said, but he argues those mistakes don't negate the original agreement to preserve the five acres.
Now, as many communities across the mid-Hudson Valley seek to create parks, maintain forests and preserve other undeveloped land in response to residential growth, the dispute in Wappinger sheds light on an early attempt at land preservation that still is playing out today.
The property on Wildwood Drive might have been developed without controversy if Ronald Lafko, a Wappinger resident, hadn't alerted town officials to the land's history. His goal was to "put them in a position to understand" the restrictions on the property, Lafko said in an interview.
"The conditions of the house being there are what they are," Lafko said. "It doesn't make any difference to me."
The history of the town's interest in the property is outlined by U.S. District Court Judge Colleen McMahon in her ruling.
By fall 2000, the property had fallen into a tax delinquent status and was sold at auction for $29,500 to two brothers, Donald and Patrick O'Mara. The O'Maras found no development restrictions filed with the county clerk, according to McMahon's ruling.
The brothers intended to build 10 houses there, starting with a house for Donald O'Mara, and in June 2003, the town issued a building permit for the house. Officials inspected the site and approved the site plan.
"As should be readily apparent from the foregoing, no responsible person in the Town of Wappinger had the slightest idea that there were, or were supposed to be, any restrictions on building on (the property)," McMahon wrote.
Ronald Lafko knew differently, and he contacted Councilman Vincent Bettina in July 2003.
Researching documents
Restrictions were in place but they were hard to find and open to interpretation, McMahon ruled.
They were found in town board and planning board minutes from 1962 and 1963 that detailed discussions with the developers that ended in an agreement not to develop the five acres.
This agreement was noted further by the words "open space" scribbled over the property on the town's official plat map.
These revelations prompted the town to reverse course, and in November 2003, town Building Inspector George Kolb ordered O'Mara to stop construction of the house.
"The town cannot be held accountable for issuing a building permit in error," Ruggiero said.
In December 2003, the town offered to allow O'Mara to move in if he agreed not to develop the rest of the property. O'Mara instead filed the federal lawsuit.
McMahon concluded the O'Maras were not bound by the restrictions because the town never took the proper steps to make them official.
"It was an unbelievable battle," Donald O'Mara said. He plans to move into the house this month after living in a Mahopac house he owns, while the lawsuit was pending.
The town board's decision to fight the federal ruling was based on more than a few acres of open space, Ruggiero said, and he is drafting a letter to residents explaining the town's position.
"The federal judge has rolled back, from what I've heard, almost 100 years of real estate law," Ruggiero said.
The ruling could become such a troubling precedent for New York municipalities that the Association of Towns is signing on to support Wappinger in its appeal, Ruggiero said.
That claim, however, couldn't be confirmed because Jeffrey Haber, the association's executive director, did not respond to repeated requests for an interview.
"It's a huge decision, so we have to fight it," Ruggiero said. "I'm confident we will get this overturned."

David Paulsen can be reached at dpaulsen@poughkeepsiejournal.com

Copy of the lawsuit pdf

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