Canada Lake property owner Joseph Herms must demolish his lakeside structure in the next eight months, pay a $50,000 civil penalty to the town of Caroga and pay the town’s court costs, Acting Supreme Court Judge Richard C. Giardino ordered Monday.
Giardino, in a 25-page decision, ruled that after the town repeatedly denied Herms a permit to build a lakeside house in the late 1990s, he went ahead and built it anyway under the guise of a boathouse.
The project has been the subject of litigation in both state and federal courts for nearly a decade. Giardino’s decision follows a trial in Supreme Court in Fulton County that began last November and concluded over the winter.
The town’s lawyer, Salvatore D. Ferlazzo of the Albany firm of Girvin & Ferlazzo, said Monday that “Judge Giardino agreed 100 percent with the town.”
Ferlazzo called the case “a long and tortured road” that the town fought all the way to the end.
“It’s a real victory for all the neighbors and for the town of Caroga,” he said.
Ferlazzo said he anticipates Herms and his attorney, Sheila Galvin, will appeal to the Appellate Division of State Supreme Court but expressed confidence that Giardino’s decision will be upheld.
“I consider this matter done,” Ferlazzo said. He estimated the town’s court costs at several thousand dollars.
Galvin could not be reached for comment.
Though Herms was issued a building permit to construct a boathouse, Giardino cited witness testimony that Herms confided to friends he was planning all along to build the lakeside home he had an architect design.
Giardino gave considerable weight to the testimony of town Councilman Mark Kane, a contractor, who said Herms approached him early in the project and promised him work if he could help with permit approvals.
Under town and Adirondack Park Agency regulations, the structure could be no more than 1,200 square feet, Giardino said, but Herms built a two-story structure nearly twice that size equipped with a deck of more than 400 square feet. There is no navigable access to the space under the structure, a requirement for a boathouse, Giardino said.
While Herms seemed to advance some valid points at trial, Giardino said, “when the entire history of this case is viewed, a pattern of conduct by Herms emerges which bespeaks artifice and guile. His conduct and testimony show that Herms obtained [the permit for a boathouse] through misrepresentation of his intentions. … Herms never intended to build a boathouse, but instead used the building permit to further his desire to build a camp in violation of the zoning ordinance,” Giardino ruled.
Giardino noted that while the town sought more than $100,000 in civil penalties, the order to demolish the structure is a severe judgment. “Herms will sacrifice the entire structure and, absent salvage value, the money invested to build it, which in the eyes of the court, is in itself a substantial penalty,” Giardino said.
“Any equities to be weighed in Herms’ favor have been effectively eliminated by his conduct,” Giardino said.
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Categories: Schenectady County