Penalty sought in lake dispute

PHOTOGRAPHER: Jim McGuire

In a legal brief filed in the Canada Lake boathouse case, the town of Caroga is asking Judge Richard C. Giardino to impose a $100,250 penalty on boathouse owner Joseph Herms.

Giardino gave lawyers on both sides until Friday to file their summations to the trial testimony which concluded in February. Giardino said he will issue a decision by the end of April on the town’s quest to have Herms demolish the lakeside structure and on Herms’ counterclaims that his personal rights and property rights have been violated by the town.

The trial began in November and after two adjournments concluded in late February. The case has been in litigation in the state and federal courts for about seven years. This latest chapter began in 2005 when the town sued to force either demolition or alteration of the structure and Herms then countersued.

The town’s attorney, Salvatore D. Ferlazzo of the Albany firm of Girvin & Ferlazzo, said Friday it is clear from the trial testimony that Herms’ permit to build a boathouse expired, the structure he did build far exceeded the dimensions allowed under town and Adirondack Park Agency code, and if it were a boathouse and not the lakeside home the town contends it is, there is no navigable access to it by water.

Herms’ lawyer, Sheila Galvin of the Delmar firm of Galvin & Morgan, said Ferlazzo should not be “that confident” about the award of a $100,250 penalty because Herms’ counterclaims are still before the court.

Galvin said it is “very clear from the trial testimony,” that the town failed to prove its case.

She also said the town’s decision in February to drop a criminal citation filed against Herms for violating town code creates an issue of double jeopardy.

She said she has addressed that issue in her brief.

Galvin said the trial was prolonged because the town did not turn over pertinent records either through Freedom of Information requests, discovery in response to the litigation or in response to subpoenas. Galvin said she learned of the existence of a number of key documents only through questioning witnesses at trial.

In his papers, Ferlazzo emphasizes that the structure was largely built after Herms’ building permit for a boathouse expired July 19, 2000, and that the structure exceeds the allowed 1,230 square feet. Herms obtained a building permit for a boathouse after his plans for a lakeside home were repeatedly denied.

Ferlazzo said the evidence shows the two-story structure was laid out on the second floor with bedrooms and on the first floor with a bathroom and kitchen. The APA and town codes forbid inclusion of living quarters.

In his brief, Ferlazzo said, he has shown “beyond any doubt that the final structure was designed for residency and, more importantly, does not have direct access to navigable water.”

Besides asking the court to award the town $100,250 in damages, Ferlazzo asks Giardino to find Herms violated town zoning code and as a result that he be ordered to remove the structure within 60 days of the decision.