A proposed local law to allow senior housing developments to open to the general public after 60 days was pulled following public backlash. This law was drafted by Jeffrey Kaplan, attorney for the 182-unit senior housing development Wawarsing Estates. The idea was to help adapt an old project to a different housing market, but it led to a schism between the town board and the planning board, and a great deal of community outrage, and was abandoned.

So, what happens now for Wawarsing Estates?

The Wawarsing Estates project was given conditional final approval first in 2007, and received notice about its pending expiration in 2008. In 2010, the project was granted an extension, but no further work was done since 2011. According to the Town of Wawarsing Code Article VIII, site plans remain effective for a maximum of two years from the date of approval unless the planning board grants an extension. The planning board is able to approve up to four extensions, each no longer than six months.

The project’s return in 2024, then, should not have been able to happen because the approval had lapsed.

“I think both the planning board and the town board inherited this stuff, which you would from something that is 20 years old,” community activist Solange Van Loo said. Van Loo is one of a number of citizens who opposed the proposed law. “I could imagine that people might have made decisions without knowing the full scope of the history of it all.”

But it’s not that cut-and-dry. Don Schmalzle, chair of the Wawarsing planning board, explained that while the project did expire in 2016, Kaplan presented an argument of vested interest – meaning that developers had spent a significant amount of money on a project and therefore have the right to continue developing – to the planning board in 2024.

At the April 16, 2024 planning board meeting, Kaplan said this was “the most important proposal due to the lack of affordable housing.” As the work started in 2011, Kaplan argued they had should be able to continue due to “the nature of the improvement, the extent and cost and the work that has already been done for this specific project.”

Also present at that meeting were project developers Jacob Blau, Stephen Graham, and Kristen Osterhoudt. Graham said they had a conference on how to legally continue the project, with a “significant amount of money” put into development already, and that it is to support the community’s need for housing. Blau also said they were never notified about the plan being rescinded, and Kaplan said he didn’t think the planning board had authority to do so.

A few months later, the planning board rescinded the decision to withdraw the approval, which then allowed the developers to build what was previously approved. Van Loo questioned if the planning board has the authority to determine vested interest, or if town code allowed the project to continue.

“This whole vested right thing is bulls--t because only a court can decide on that, not a planning board,” Van Loo said. According to her, Wawarsing Estates spent between 1.2 to 3 million on the development so far, about $500,000 in “soft cost” such as floodplain structures, which would not count in court. Another $700,000 went to underground pipes, according to a payment application. “To build the whole thing would have been $35 million. So, it was a drop in a bucket.”

We asked a member of a different planning board, who told us that planning boards do not grant vested rights, which are a legal concept which can be nullified if a permit expires. In a related case, Exeter Building Corp. v. Town of Newburgh in 2014, the appellate court found that developers were exempt from Newburgh’s new zoning law for three years, but that they did not have vested rights.

According to the report, “Regardless of the scope of the work performed or amount of money expended toward completion of a project, common-law vesting cannot occur in the absence of a legally issued permit for the project itself.”

The code changes matter here because since the original proposal, the state has adopted new wetland regulations under the 2025 Freshwater Wetlands Act, which made formal wetland identification and mapping necessary before building. Wetlands of “unusual importance” such as in flood-prone areas or habitats for rare species are now regulated regardless of size.

“Wetlands move around over time. They don’t necessarily stay in exactly the same place. You need to have them delineated; you have to measure exactly where you are. And 20 years ago, you didn’t have to do that,” Van Loo said.

For Van Loo, the size of the project threatens to impact both environmentally sensitive areas and town services. Last month, she presented the town board with maps showing nearby wetlands and asserted that if even 500 people moved into the 182 units, the population of Kerhonkson would jump by 30 percent.

She said this could “swallow Kerhonkson alive,” in terms of extra traffic, pressure on schools and emergency services, and potentially the character of the town.

Attorney for Wawarsing Estates, Jeffrey Kaplan, did not wish to comment on the ability of the planning board to determine vested rights. However, he did assert that the project satisfies all wetland regulations.

“There was an engineer's report submitted to the planning board before they made a determination that the project could proceed, that confirmed that the property and the development still met the current wetland standards,” Kaplan said. “That was in their consideration of whether the project as proposed can still be built, based upon actual change in the wetlands. The confirmation was that it could be.”

As of now, Kaplan said, the project developers “haven't really made a final determination on what they're going to do yet.”

In the meantime, a local law was nearly passed by the town board, under opposition from the planning board, which would open the project (and all others) up to convert from senior housing to general housing after 60 days. That proposed law met fierce pushback and is basically dead, but for legal reasons will still be sent to the town and county planning boards. The town board also set a public hearing on June 4 to receive public input.

For all the questions and ambiguity, according to Schmalzle, it is business as usual for the proposed development. He said that “they have approval for what was approved 13, 14 years ago.”