A state Supreme Court judge has vacated the Woodstock town permit to remediate contaminated fill from 10 Church Road in response to an Article 78 lawsuit filed by Reynolds Lane residents Frank and Pam Eighmey. On December 8, judge David Gandin invalidated the building permit for work on the Shady property on the grounds that it violated the town’s fill and grading law, which had been adopted to prevent such contamination.
The local fill and grading law requires a plan showing existing and proposed contour lines at the work site in intervals of not more than two feet, the estimated quantity of material to be excavated computed from cross-sections of a proposed excavation area, and an erosion control plan.
Plan E, submitted by property owner Vincent Conigliaro after four rejected attempts, is an aerial photo that does not contain adequate information.
“Plan E also references installation of ‘stormwater prevention’ without including any plan or details regarding erosion control,” Gandin wrote in his decision. “Plan E states that work to be performed entailed separating stockpiled material into usable fill and construction waste material. However, the fill and grading law does not permit on-site processing sorting or crushing.”
The town permit
Supervisor Bill McKenna’s affidavit in opposition to the Article 78 said on-site sorting had occurred. “McKenna states that he visited the site and observed workers sifting through buckets of fill, hauling it to the other side of the Conigliaro respondents’ property and then sifting through it a second time,” wrote Gandin.
Gandin rejected the argument that the town code was entitled to deference. “Here, the record makes clear that the application failed to include substantive information expressly required,” he wrote. “The town issued the permit anyway. Thus, the court is not faced with an issue of statutory interpretation.”
The town thwarted the attempt by the Eighmeys’ attempt to appeal the building permit by refusing to hear the appeal. The Eighmeys had submitted an application to the ZBA on April 24 requesting an interpretation as to whether it was properly issued. However on April 25, building inspector Francis “Butch” Hoffman sent a letter stating it was not the ZBA’s purview because the permit was not issued under the zoning law.
Gandin denied a request to order groundwater monitoring and immediate and full remediation of the site, That was beyond the scope of remedies available. The petitioners had other remedies than an Article 78 declaratory judgment.
The work was done
One possibility, said McKenna, was that the town could demand Conigliaro furnish the details the judge found lacking. “But at the end of the day, the work has been completed, the construction debris has been removed, and the dangerous slope has been removed,” McKenna said. “The most important thing that came out of the plan was we had testing. And the testing indicated that there was only some minor exceedances of state law, which the DEC don’t find objectionable or concerning.”
To McKenna, “The town is done. We’ve met our obligation. We’ve done as much as we can do. We can’t, in the attorney’s opinion and the engineers’ opinion, push for further cleanup, because based on our laws there are no violations.”
The neighbors have the remedy of “a civil action against Conigliaro and crew,” according to the town supervisor. “That’s where I always felt it should be. They have a strong case, and they should pursue that, and I wish them luck with that.”
That’s what’s happening. The Eighmeys filed a civil suit in November seeking damages from Joseph Karolys and Conigliaro. The town is named as a defendant but not for damages.
McKenna said the fill and grading law did not govern the bringing in of material. The cleanup, however, required a permit. The town will need to look at how those are issued.
“Because it shouldn’t have been a building permit,” contended McKenna. “It was a permit to remove fill. It has nothing to do with a building. And that’s why it should have never gone to the ZBA. It should have not come to the town board. If there was some discrepancy, the law does allow for people to appeal to the town board.”
Exempt from permit?
The fill and grading law does not apply to “operations conducted by or for the Town of Woodstock or any department of agency thereof.”
McKenna said the argument could be made that the 10 Church Road cleanup was exempted because it was requested by the town to benefit the general public. “But be that as it may, he, we made them go get the permit,” McKenna said. “We got the debris removed, we got the soil tested, and we got the dangerous slope eliminated. So I think I think we did a pretty good job. And again, the judge says we have the discretion. We felt we used it wisely here. And the judge gave them another avenue. Sue them.”
Who’s paying?
Some critics of McKenna’s handling of the situation have noted the fee for the now-invalidated permit and for engineering services was paid by the town as a gift to the property owner, violating the legal prohibition against spending taxpayer money on private property.
But McKenna promised Conigliaro will pay. “We’re going to bill him for all that. We’ve kept track of that and at the end of the day, Conigliaro will get a bill for that. Without a doubt,” McKenna said. “There was some more testing done early on just to look into the dangers. He will get a bill for all that. He doesn’t get away scot-free. He doesn’t get away from the permit. The permit was never waived. And in fact, I don’t have the authority to waive the permit.”
McKenna conceded the town may not be able to collect the permit fee because it is now invalid. But it will collect on the engineering fees. The rules apply to everybody. “We can’t spend public funds on any property. We can’t spend money on Conigliaro’s property. We have a mechanism to get it back and we will use it.”
In late 2019 through early 2020, Vincent Conigliaro’s soon-to-be ex-wife ordered fill delivered to 10 Church Road for a landscaping project. Contractor Joseph Karolys delivered 200 truckloads of what turned out to be fill with construction-and-demolition debris in violation of the town’s solid-waste law. Poorly designed retaining walls eventually caused a landslide into the Eighmeys’ back yard, just feet from their well.
Initially, the Eighmeys and neighbors were promised full cleanup either by Conigliaro by the town and paid for by Conigliaro. That then evolved into “Plan E,” which involved sifting and sorting of the material and transporting the larger debris to a disposal facility. The remainder of the material was moved to another part of the property.
Neighbors have been told not to drink their water and have purchased bottled water.
Join the family! 
