Fate of controversial Saugerties dumps now in judge’s hands

The 1446 Route 212 dump (photo by Christina Coulter)

The fate of three controversial construction and demolition waste dumping sites in Saugerties is now in the hands of a state Supreme Court judge.

After over 20 hours and 10 days of witness testimony, Supreme Court Judge Richard Mott will now mull over whether the Town of Saugerties rightfully issued stop-work orders against dumping on Joe Karolys’ properties on Route 212, Fel Qui Road and Goat Hill Road. After the orders were issued by town building inspector Alvah Weeks, Karolys filed an Article 78 proceeding, which caused the issuance by the court of a temporary restraining order on the stop-work orders being enforced until the matter could be properly adjudicated.

Over the course of the proceedings, which took place at the Ulster County Courthouse in Kingston, Karolys’ attorney, Melvin T. Higgins, argued the town improperly selectively enforced its laws by singling out Karolys’ properties, while turning a blind eye toward other allegedly illegal C&D dumpsites in town.

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Following the final hearing in the matter on Monday, Nov. 4, Higgins and town attorney John Greco must send Mott summaries — in 12-point font and with a maximum of 12 pages, the jurist demanded — detailing their positions and citing any legal precedents that may help their cases. Then, Saugerties waits: There’s no timetable for Mott to come back with a decision. All throughout the court hearings, and in defiance of stop-work orders issued by both the county health department and the state Department of Environmental Conservation, trucks have been regularly depositing their loads at the pace of, neighbors say, 8-10 loads per day.

“In this case, throughout the 10 days of testimony, there was absolutely no evidence…that Mr. Karolys would suffer any type of immediate or irreparable harm after the issuance of a preliminary injunction,” said Greco in his closing arguments in court on Nov. 4. “Mr. Karolys claimed that if the court did not allow the temporary restraining order to continue, he would lose business — that is not irreparable harm.”

By legal definition, “irreparable harm” takes place when money cannot right a situation, and when circumstances cannot be restored to their previous state — an example would be lost property that cannot be recovered, like a burned-up Mickey Mantle rookie card, or an expensive bottle of Scotch poured down the drain. As Mott pointed out while Higgins made his closing arguments, Karolys said when he was questioned on the stand that monetary reimbursement could satisfy him when he was asked, “Can it be made whole with money, the losses that you would incur if you operations were shut down?” by Mott.

“I believe so,” Karolys responded.

The lawyers also had to argue for the probability for success in a later lawsuit, which Greco addressed in his closing statement: “There’s no dispute here that the town of Saugerties has an anti-dumping law that prohibits the dumping of C&D debris from outside the town without a permit.”

Greco also asked Mott to take judicial notice of the troubling test results commissioned by the DEC in a court-ordered property raid in May that indicated the presence of unsafe levels of heavy metals and pesticides like DDT. The veracity of these test results, particularly the manner in which samples were taken, was questioned by the defense throughout the hearings.

“Mr. Karolys can quibble about how many samples were taken or where they were taken from or how they were taken, but he submitted no evidence that they were taken in error,” said Greco.

Higgins said in his closing statement that the town was selectively enforcing its laws, citing statements made by assistant building inspector Kevin Brown and town engineer Joe Mihm indicating that they only inspected properties when complaints were made and not on any kind of routine basis.

“I believe that my client’s business and his life have been wrecked by the inappropriate activities of this community targeting only him with the exclusion of everyone else,” Higgins said.

Moreover, Higgins further decried the DEC’s test results. “I don’t think the town has demonstrated that the material has illegal amounts of toxic metals,” said Higgins.

“The burden of proof is on you [Higgins] with respect to the temporary restraining order,” said Mott, who asked why Karolys had never had his own independent test results taken. “Tell me how you proved it specifically, other than making this comment and suggesting and calling for speculation…It would make this all a lot easier if you had an expert come in and say, ‘His property is as pure as the driven snow, there is no contamination on his property.’ …He hired an expert that did no testing, does that make any sense?”

Higgins also “renew[ed] all of [his] objections… for the record” in his closing statements.

“[At] times, I wasn’t sure that Judge Mott was processing all of the comments that were being made, but after listening to his comments today he obviously was, and I think a lot of the questioning that went on in earlier court episodes was to give both sides all possible options,” said councilwoman Leeanne Thornton. “It felt today that [Mott] felt Mr. Higgins hadn’t followed through on things that he should’ve followed through on. So, I’m optimistic that things will move along.”

“I feel optimistic,” said Town Supervisor Fred Costello Jr. after the final hearing. “I think [Greco] summarized all of our arguments nicely and reflecting back, I feel like we presented a strong argument as to why this restraining order needs to be lifted and to memorialize all of the concerns we’ve been expressing. We want to be able to assure the residents who live there that their water is safe, and the degree to which we’ve been able to answer those questions is not sufficient. We’re closer to those answers today than we’ve ever been, ever.”

But even if the town is successful in this step, it remains to be seen who will clean up over 100,000 cubic yards of material dispersed throughout Saugerties.

“The first line of funding will be whatever resources we can extract from whatever bonding he may or may not have and any value that’s assigned by the court,” said Costello. “Then the next one…ultimately this is going to fall to a partnership between the town and the DEC to do an assessment and figure out what an adequate mitigation would be.”

In other legal business, Karolys will appear in Woodstock Town Court later this month to answer to charges of illegal dumping outside of the 7 a.m.-to-3 p.m. window outlined by Mott in his temporary restraining order. Saugerties justices recused themselves from the case, necessitating a venue shift.

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