The state Supreme Court trial to determine the fate of the controversial Canada Lake boathouse is scheduled to resume at 9:30 a.m. today before Judge Richard C. Giardino.
The nonjury trial began in November, but was adjourned after several witnesses testified.
The case has been in litigation in both state and federal courts since 2000 as boathouse owner Joseph Herms seeks to finish the project and — in the latest chapter — the town of Caroga seeks a ruling forcing Herms to demolish the structure.
Herms’ attorney, Sheila Galvin of the Delmar firm of Galvin & Morgan, said Monday that her client should have been allowed to complete the structure under a 1999 building permit issued by the town for construction of a boathouse.
But, the town’s attorney, Salvatore D. Ferlazzo of the Albany firm of Girvin & Ferlazzo, said that Galvin’s arguments have already been rejected in prior court cases and her contentions do not “distract from the obvious, that this was a house masquerading as a boathouse.”
The town and the Adirondack Park Agency contend that when zoning regulations regarding lake setback requirements blocked Herms from building a house on the property he tried to achieve his goal anyway by taking advantage of what were then vague restrictions regarding construction of boathouses.
In 2002, partly because of this case, APA changed its definition of a boathouse, closing all loopholes. The shell of the two-story structure was nearing completion when the town issued a stop-work order in 2000.
Galvin said Monday that Herms would have been able to complete his boathouse, but the project was delayed by litigation. When he was forced to reapply for a permit, she said, the rules and regulations regarding boathouses had been changed to undermine his design.
APA regulations limit a boathouse to 1,250 square feet and a single story. The Herms’ structure has double the allowed space on two floors and has 10-foot ceilings, plumbing and a fireplace.
While both sides are in dispute on many of the issues, they have agreed that a second story was not included in the plans for a boathouse approved in 1999.
“It was never a boathouse by any definition,” Ferlazzo said, describing all the appointments that make it by all standards a house.
Ferlazzo said the trial may conclude by the end of the week. “All that’s left is the inevitable,” he said, speculating the court will order the building demolished.
Galvin said there are serious legal questions yet to be explored at trial, including whether the Town Board authorized the lawsuit seeking demolition and whether the town has fully complied with discovery regarding release of all documents. A laptop computer used in 2000 by the late town building inspector, Richard Rubinstein, has since been turned over to the town of Stratford and its files on the Herms case deleted.
Galvin said she will file a motion asking the court to allow an expert to try to recover the missing file.
When the trial resumes today, Caroga Town Clerk Linda Gilbert is scheduled to testify.
In May 2002, the APA tightened up its definition of a boathouse. The new regulation states a boathouse cannot have bathroom facilities, sanitary plumbing or sanitary drains of any kind, kitchen facilities, a heating system, beds or sleeping quarters.
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Categories: Schenectady County