Part 9 - Power corrupts, and absolute power corrupts absolutely: A classic study in lawlessness and corruption

With King Gromack, Lord of All He Surveys within the Town of Clarkstown, continuing to consolidate his grip on power, and with patronage and corruption rampant and growing, the question arises: Where will this all end? As the saying goes, “Power corrupts, and absolute power corrupts absolutely.” If our sad tale offers an answer, there may in fact be no end to the malignant, deceitful, conspiratorial, and illegal actions of Town officials, elected and appointed, judges included. We briefly identify some of them here, and will expand upon them in future columns.
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In May 1999, we placed fill in the back yard of our properties at 139 and 141 Massachusetts Avenue, Congers. In November 1999, the Town sued us criminally for allegedly operating an illegal landfill. In October 2001, we prevailed when a jury unanimously acquitted us within five minutes of being sequestered. Did it stop the Town Supervisor from unlawfully threatening to remove the fill? Not at all.

The Town filed four violation notices. All of them were, for one reason or another, invalid and unenforceable. Did it stop the Town from unlawfully proceeding? Not at all.

On seven separate, but related, matters the Town Board and Zoning Board of Appeals exceeded relevant Town code and State statutes of limitations, including failure to timely prosecute its criminal action, failure to timely file and/or move on violation notices, failure to timely hold a public hearing on an application of ours before the Board, failure to timely render a decision on our application, and failure to timely hold a Zoning Board of Appeals hearing. Did it stop the Town from unlawfully proceeding? Not at all.

The Town then adopted three legal resolutions. The first, denying us a special permit, was adopted 10 months after we had removed our request from consideration. For good measure, we removed it again the day before. Approval of a legal resolution denying a request that was no longer up for consideration was itself illegal. We filed an Article 78, and prevailed, when State Supreme Court Judge William Nelson confirmed that Town code authorized us to withdraw our request but that the Town improperly (and knowingly) acted in exceedance of its authority. Did it stop the Town from unlawfully proceeding? Not at all.

In July 2002, the Town then had its consulting engineering firm develop an Assessment of the fill on our properties. This formed the basis for a second Town suit, which falsely alleged that it “presents a direct hazard to the environment, neighboring property, and to site occupants, as well as to the public at large.” How did Town officials know that this represented a false material factual statement—which, under normal circumstances, would be subject to sanctions? Because Town DEC Director Kalarickal on two separate occasions, and over his signature, reduced to writing that our fill was non-hazardous. Because the Town consulting firm’s founding and managing partner identified our fill, in writing, as non-hazardous, going so far as to write: “In the opinion of the Engineer, the fill is non-hazardous.” Because multiple Town and Town consulting engineers officially confirmed the non-hazardous nature of our fill in a conference call, followup letter, and revisions to a Project Manual for Debris Removal. Did it stop the Town from unlawfully proceeding? Well, yes, for more than a dozen years. But some lying dogs never sleep.

In March 2013, after we sued the Town but voluntarily withdrew our suit, the Town revived its more than 10-year-old action, seeking a summary judgment to enter our premises to remove this allegedly hazardous fill. In November 2013, the presiding judge—who, to the best of our knowledge, has long worked in Clarkstown, who was recently appointed to the lowest state-wide judicial position as an acting surrogate judge, likely having further judicial aspirations, after having been a village judge for years, and having developed a full appreciation of politics, patronage, and governance in the Town of Clarkstown— granted the Town’s motion.

Leaving aside the Death of the Rule of Law resulting from this indefensible decision, which denied the validity of our exhibits of the Town’s own uncontroverted documents—and which we will document in our next column and beyond—Gromack and his obedient legions have blindly gained a legal victory of which the financial consequences will now be borne by the Town’s already hard-pressed taxpayers. * The Judge’s Decision and Order—which grants Gromack, the Board, Mele, and others precisely what they want, will now legally require the Town to:

1. Identify, excavate, load, remove, transport, and legal dispose of an estimated “4,000 tons,” or approximately 3,000 cubic yards, of “construction debris and soil fill material” (Project Manual for Debris Removal, page PR-7) in adherence with its multi-hundred-page Project Manual for Debris Removal to completely eliminate all “nuisances, hazards and litter.”

2. Properly grade, fill, seed, mulch, and maintain the property.

3. Expend hundreds of thousands of dollars on remediating allegedly hazardous fill—without possibility of compensation—that Town DEC Director Kalarickal and multiple Town consulting engineers long ago attested by their signatures and/or State of New York Licensed Professional Engineering seal is non-hazardous.

4. Comprehensively identify every environmental safety procedure to be undertaken to insure that excavation, removal, and transport of the fill does not create airborne environmental problems for neighbors and the general public.

5. Rigidly adhere to all “Standards and Regulations,” as identified within the Project Manual (see Page 02210-2-Standards & Regulations.pdf), which explicitly references applicable State and federal Standards and Regulations with respect to the excavation, removal, transportation, and legal disposal of hazardous waste; to wit:
5a. 40 CFR Part 261 - Identification and Listing of Hazardous Wastes.
5b. 40 CFR Part 262 - Standards Applicable to Generators of Hazardous Waste.
5c. 40 CFR Part 263 - Standards Applicable to Transporters of Hazardous Waste.
5d. 6 NYCRR Part 360 - Solid Waste Management Facilities.
5e. 6 NYCRR Part 364 - Transportation of Hazardous Materials.
5f. 6 NYCRR Part 372 - Hazardous Waste Manifest System and Related Standards for Generators, Transporters and Facilities, July 1, 1986.

6. Take stringent precautions to protect site workers, including, but not necessarily limited to, protective garb and special breathing apparatus, consonant with excavation, removal, transport, and legal disposal of hazardous waste.

7. Obtain legal permits and releases from all neighbors, as well as the NYS Department of Transportation to access the property from Route 9W; maintain traffic control capability during hours of operation; remove and replace a wall on a neighbor’s property; restore the fence on Palisades Interstate Parkway Commission property, which that agency had requested be repaired; and engage in a broad range of other costly and time-consuming activities.

In 2002, the Town consulting engineering company estimated the cost of remediation at $277,771. Since then, the dollar has been substantially devalued, tipping costs have risen dramatically, and the cost of labor and diesel fuel have increased. On top of this, the Town has already expended, by our calculations, well over $100,000 in engineering and legal fees, time, energy, and resources.

But the cruelest cut of all will fall upon neighbors—and site workers—who will be subjected to weeks of airborne dust pollution, the constant roar of heavy equipment, and hundreds of trucks coming and going. * Will the “cure” of weeks of air-borne pollution and major inconvenience be worse than the “disease” of the fill being buried under topsoil and a rich carpet of vegetation, which is precisely what the State DEC recommended to begin with? You can bet it will be!

Good for Gromack and his Merrie Band of Rubber-Stamping Board Members? Good for taxpayers? Good for neighbors? Good for “the public at large?” Good for the environment? We think not. What do you think?
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(Next week and beyond we’ll document additional malignant, duplicitous, conspiratorial, and outright illegal actions of numerous Town officials, judges, and other “players.” You may also want to review our web site, townofclarkstownvgoldberg.org, which now has 925-plus hits in just a few short months.)