As of Tuesday, over 12 hours of testimony and cross-examination have been offered at an Article 78 hearing in state Supreme Court in Kingston to determine whether the Town of Saugerties properly issued stop-work orders against Joe Karolys’ three construction and demolition debris dumpsites earlier this year.
On Tuesday, Sept. 24, state Supreme Court Justice Richard Mott, who has been presiding over the hearing, said the next installment, which has been set for Tuesday, Oct. 8 at 1:45 p.m., will likely be the last before he considers the evidence and renders a decision. The courtroom audience, initially thronged with dozens of neighbors, has thinned considerably over the eight sessions so far.
“I have to stop myself from going up to [Karolys] and saying, ‘Just stop,’” said Claudine Heller, a neighbor of one of the sites who has attended each Karolys-related event since the town zoning board ruled earlier this year that dumping on his properties violated the zoning code.
To keep his dump operation going, the judge must agree with Karolys’ legal counsel that the town unfairly issued its stop-work orders in late 2018 and early 2019. Since then, both the state Department of Environmental Conservation and the county Health Department have also slapped stop-work orders on Karolys’ three C&D dumps but trucks continue to cart in material on a daily basis, neighbors say.
DEC testing, carried out in May before the agency issued its stop-work order, found illegal levels of pesticides and heavy metals on each of the properties. An environmental engineer testifying on Karolys’ behalf, Robert LoPinto, has argued in court that there are mathematical errors in the state’s test results, but the town cannot bring their own engineer, Joe Mihm, to rebut those claims until LoPinto returns from vacation and is able to be present for testimony.
“The point of this hearing, from [Karolys’] perspective, is to signal that the town singled them out. We did not single them out, what’s going on on those properties is extraordinary compared to anyone else’s,” explained Town Supervisor Fred Costello Jr. after the Sept. 24 court session.
Mott ruled that testimony from police officers that oversaw the lodging of charges in town court against for dumping activities on Karolys’ properties outside of the 7 a.m. to 3 p.m. window imposed by the temporary restraining order won’t be heard. Officers from the Saugerties Police Department, until this ruling was made, have been paid to sit and wait outside of the courtroom for six of the sessions. Mott said it would be improper for the officers to testify until the town court charges against Karolys are resolved.
Melvin T. Higgins, Karolys’ attorney, argued during court hearings on Sept. 19, 23 and 24 that there was disparity in the way that complaints about debris on properties were received by the town building department. While neighbors’ informal, verbal complaints were acted on immediately, Karolys’ informal complaints made about other businesses after a stop-work order was issued for his Goat Hill property were not, Higgins maintained, looked into until months had passed and legal proceedings against Karolys had begun. Town assistant building inspector Kevin Brown has said that while Karolys was given the opportunity to make complaints in writing, he declined at the time.
“We’re no longer going to take anonymous or hearsay complaints — we will require a formal written complaint,” said Brown during a court recess. “[This matter] has pointed out some of our flaws in our system, but we’re also updating our system so that time and date will be stamped on all of our documents.”
Brown said inspections of properties are generally only done during fire safety inspections every third year and upon receiving complaints.
“If I looked at every place I drove by when I drove around, I’d get into an accident,” said Brown on the stand when Higgins asked if he looked at properties while driving by.
Brown stayed collected over three days of questioning, even when Higgins was told to back up by Mott for getting too close to the witness stand while pointing out elements of photos to Brown.
Brown recounted on the stand not only his inspections of the Karolys properties, but inspections made in August of a handful of properties throughout Saugerties, most belonging to the trucking and excavation sites, that Karolys has implicated for storing construction and demolition waste. With each of the five properties, Town Attorney John Greco had Brown compare the size of depicted piles on photographs to the piles on Karolys’ property. Mott excluded from evidence Brown’s written reports about these other properties, citing that they were “prepared for legislation,” because the inspections had taken place after Karolys implicated the other property owners in court, but allowed photographs taken of the various piles to be included in the ever-growing pile of evidence.
Some of the properties, including the “Dairy Barn” property owned by Fred Costello that includes Sue’s Restaurant, a barber shop and a car wash, had amounts of construction and demolition material on them, but it was asserted repeatedly that the amounts did not compare to those on Karolys’ properties.
“A portion of it is my own, from when I redid the carwash. Some of it [belongs to a tenant],” said Costello of the material on his property. “My dad cuts wood, so when we cut trees down the top that’s not useful as firewood and we have to chip.”
Brown gave the town supervisor 30 days to comply with an order to remove improper debris.
According to the state DEC, C&D material includes bricks, concrete, soil, rock, wall coverings, plaster, drywall, plumbing fixtures, non-asbestos insulation, roofing shingles and other roof coverings, “asphaltic pavement,” glass, plastics that are not sealed in a manner that conceals other wastes, empty buckets 10 gallons or less in size and having no more than one inch of residue remaining on the bottom, electrical wiring and components containing no hazardous liquids, and pipe and metals that are incidental to any of the above. Also included are wood — including painted, treated and coated wood and wood products — and land-clearing debris, including brush.
Brown said that, while Article 204.3 of the municipal code prohibits construction material from outside of Saugerties, trucking and excavation businesses (which is the distinction of Karolys’ Route 212 dumpsite, as opposed to the Goat Hill and Fel Qui Roas sites) are given leeway.
“I don’t know if it’s written in there, I just know that we’ve always followed town and state laws,” Brown testified Tuesday. “The fine-line difference on this whole case is that he filed a DEC permit for a processing plant. You are not allowed to have a processing plant, but if you have a construction and excavation company, you [are allowed to have a 5,000 cubic yard] limit … it’s kind of their leeway to be able to conduct their business … if you didn’t have a spot to bring materials back and forth, you’d have to be an expert in how much material you need, how much material do you need in your backyard [for each project].” There is no mention of this 5,000 cubic yard limit in the town’s municipal code.
Brown said that none of the five properties implicated by Karolys had more than 5,000 cubic yards of material considered C&D; at an earlier hearing in August, DEC regional enforcement manager David Pollock estimated that 40,000 cubic yards of fill sit on the 90 Goat Hill Road property, 15,000 to 20,000 cubic yards sit on the Fel Qui site and 1,500 cubic yards sit at the main processing site on Route 212, the only one of the sites with a permit to accept such material from the DEC and where Karolys and his family lives. More fill has been brought to each site since, neighbors say.
Interviewed Wednesday, Police Chief Joseph Sinagra said that should Mott decide that the temporary restraining order against the stop-work orders should be lifted, action can be taken immediately.
“Once the TRO is lifted, we can resume normal enforcement because that means that there’s nothing that bars us from enforcing the local law,” said Sinagra. “Just like nothing bars us from enforcing the local law when Mr. Karolys operated before or after the [window of time set by the court.]”
The DEC is also pursuing a consent order, which would leverage the lessening or eliminate issued fines in exchange for court-mandated assurances that Karolys would clean up his properties to some degree at his own expense.
Mott gave no indication of when he would issue his decision on the case.