Smithtown Democrats to Probe Town Ethics
Committee launches investigation following lumber-yard debacle
By Chad Kushins
March 8, 2012
Smithtown Democratic Chairperson Ed MaherFollowing the Suffolk County District Attorney’s controversial findings in regards to the demolition of a defunct lumber yard on Smithtown’s Main Street, local democrats are now calling for the town’s ethics board to open an investigation to double-check and assess the Grand Jury’s findings.
At a regular meeting of the Smithtown Town Board on February 23rd, Smithtown Democratic Committee member Sandy Trehy read a letter drafted by chairman Ed Maher, officially asking the Town’s ethics board to determine which officials may have used a promised $40,000 tax break to pressure developers to violate the town’s code and illegally demolish the Nassau - Suffolk Lumber Yard. The request, which was made during the “public comments” portion of the Thursday night meeting, saw the sitting Town Board members decline immediate comment and prompted Town Attorney John Zollo to instruct that committee members mail the letter to the ethics committee’s P.O. Box address.
“At the Town Board meeting, we were asked to formally deliver the letter to Town Hall,” Maher told Smithtown Matters. “So we did right away.” According to Maher, no details of the Democratic Committee’s letter can be revealed publically, as protocol requires its contents remain “confidential”, at least until a response is given from Town Hall.
Town Attorney John Zollo told Smithtown Matters that the letter was immediately sent to Joyce Boutindari, Secretary to the Ethics Commission.
According to the initial Grand Jury report, the end result of the unlawful demolition “constituted an utter disregard for the well-being of local citizens.” According to the testimony of an unnamed New York State employee, the Department of Labor inspected the parcel of land, located at lumber yard demolition at 102 West Main Street, following the demolition. After testing those samples, they found asbestos to be present. Because of the significant health issues attributed to airborne asbestos there are strict rules regarding the removal of asbestos, yet the unlawful demolition did not adhere to accepted protocol for its removal – another key factor in the Grand Jury’s list of recommended amendments to the Town Board’s overall practices.
The Grand Jury report did not identify town officials or the land developer; instead, letters were used to identify each of the parties involved. (Editor’s note **(Although they have not formally acknowledged their identities it is understood that Supervisor Vecchio is Town Employee A, Planning Director Frank DeRubeis is Employee B and Former Town Assessor Greg Hild is Employee C) According to the report, the developer of the property, identified as “Developer A,” was pressured into demolishing the property by “Town Employee A”, and at one point received a handwritten, unsolicited tax map chart from a town official, identified in the report as “Town Employee C,” which showed a tax reduction of more than $40,000 if the land were vacant.
The report indicated that after being notified of the potential $40,000 tax reduction if the demolition was done before the March assessment deadline, the developer began the demolition and was issued a Stop Work Order. Soon after the issuance of the stop work order, in a phone conversation, “Town Official A” pressured Developer A to continue the demolition. Additionally, Developer A was fined $3,500. The report indicated that Town Employee “C” reconsidered the $40,000 reduction after the District Attorney’s office started its investigation. The property taxes were reduced by $4,000.
Maher’s February 23rd letter focused on the specific town official indentified by the Grand Jury as “Employee A” who committed a “a clear abuse of political power for personal profit” by persuading another town official to offer the tax abatement to an unnamed developer in exchange for demolishing the buildings.” According to the Grand Jury, the motive was allegedly tied to the politician’s re-election campaign.
Following a comprehensive and critical report by a Suffolk County Grand Jury, members of the Smithtown Town Board have begun considering changes to codes and practices regarding ethics, and demolition and construction protocol. The 42-page report had been critical of certain members of the Town Board and their handling of the 2009 lumber-yard demolition. The report ended with 17 “suggestions” the town should enact to avoid violations of its Town Code in future construction dealings.
Town Councilman Edward Wehrheim,(has identified himself as Town Employee E) indicated to Smithtown Matters, that numerous suggestions from the report should be drafted into law, although, he feels that appointing a Board of Site Plan Review could face the problem of having to pay additional employees selected for such positions.
According to Wehrheim, upon the release of the Grand Jury’s report, members of the Town Board quickly contacted the Town Attorney, asking that the Grand Jury’s list of suggestions be officially considered and considered for feasible entries into the Town Code. “After that,” continued Wehrheim, “the full Board will convene and discuss which of the Jury’s ideas we can do, and which – as a governing body – we can’t.” Wehrheim added, “Some are easier than others, while ones such as the Board not being able to work with a prospective developer, may be more difficult. But many of them seemed logical.”
Supervisor Vecchio’s office did not return our phone calls. Smithtown Matters Founder and Editor, former Councilwoman Pat Biancaniello, has acknowledged being “Town Employee H”.
The Democratic Committee’s letter, delivered immediately following the Town Attorney’s request, is yet to be made public. As of this writing, the Committee is waiting for the Town’s response.
Grand Jury Conclusions:
CONCLUSIONS
The Grand Jury finds that Town Employee A aggressively pursued the demolition of structures at Commercial Parcel A. Town Employee A was aware of the requirement of Site Plan Review as a predicate to receiving any demolition permit. Town Employee A was also aware of the amount of time the process of Site Plan Review required. As a result, Town Employee A solicited other Town Officials about legal alternatives that would allow for the removal of these structures without the necessity of Site Plan Review.
The Grand Jury finds that Town Employee A, in an attempt to expedite demolition through the process of Site Plan Review, offered Developer A three incentives to motivate Developer A to submit a site plan application. Town Employee A directed Town Employee C to furnish Developer A with a tax chart depicting the potential tax savings demolition would realize at Commercial Parcel A. Town Employee A orchestrated an arrangement whereby Developer A would be temporarily permitted to store demolition debris on site at Commercial Parcel A, thus allowing Developer A additional time to deal with the costs of carting and disposal of this debris. Finally, Town Employee A communicated to Developer A that he would support an application with the Town Board to help offset some of the site plan fees Developer A would incur as a result of his project.
The Grand Jury finds that Town Employee A was advised during the final week of February 2009 that Developer A would not be successful in securing Site Plan Review and approval prior to the taxable status date of March 1, 2009. Town Employee A knew as a result that Developer A would receive no demolition permit in that same time period. Town Employee A was also aware that Developer A received a Stop Work Order after a limited amount of demolition occurred at Commercial Parcel A during this time period. Regardless, Town Employee A advised Developer A to proceed with the demolition anyway.The Grand Jury finds that Town Employee C played a substantial role in propelling Developer A’s demolition of structures of Commercial Parcel A on March 2, 2009. Town Employee C was aware that Developer A could not lawfully proceed with demolition at Commercial Parcel A. The Grand Jury finds that Town Employee C, upon determining that Developer A did not in fact complete demolition by the taxable status date of March 1, 2009, incorrectly advised that Developer A had an additional day to complete the demolition. After the completion of this March 2, 2009 demolition, Town Employee C was prepared to reward this demolition with a tax benefit of approximately $40,000.
The Grand Jury finds that Town Employee C became aware of an investigation by the Suffolk County District Attorney’s Office into the unlawful demolition at Commercial Parcel A, only eight days after the demolition of March 2, 2009. At this time, Town Employee C became specifically aware that his interpretation of the taxable status date, and the motives behind it, were being called into question. As a result, Town Employee C took great pains to solicit a legal opinion which would allow him to use March 2 as the taxable status date, a measure which would allow him to grant Developer A the approximate $40,000 tax break. At the same time, Town Employee C made material misrepresentations to Town Employee G in an attempt to disavow any personal knowledge of the circumstances of this demolition. Town Employee C utilized March 1 as the taxable status date for Commercial Parcel A only after being unable to secure a legal opinion that would allow him to do otherwise. As a result, Town Employee C was forced to grant Developer A the more modest tax savings of approximately $4,000 based upon the unlawful demolition.
The Grand Jury finds that the favorable tax adjustment for Developer A consequently deprived the Town, County, and school districts of these additional revenues.
The Grand Jury finds that Developer A benefited from the unlawful demolition of Commercial Parcel A. Though Developer A did not secure the initial tax benefit proposed by Town Employee C, a tax
savings of approximately $4,000 was realized. Developer A also avoided approximately $10,000 - $11,000 in site plan fees as a result of the unlawful demolition. Though Developer A was issued a series of summonses by the Town Building Department for this transgression, Developer A’s penalty was only $3,500 in fines.
The Grand Jury finds that the actions of Town Employee A and Town Employee C produced a sequence of events that ultimately eliminated the process of Site Plan Review at Commercial Parcel A. The Grand Jury finds that the review of a demolition proposal at Commercial Parcel A was mandated by Town Code, and that notification of the County and State was also required by State and local law. The elimination of this review and notification resulted in a loss of input and control that necessarily impacted how demolition was conducted at Commercial Parcel A.
The Grand Jury finds that the failure to employ Site Plan Review at Commercial Parcel A initially precluded the Town Building Department from issuing a demolition permit. As a result, the Town Building Department was deprived of an opportunity to provide input and control into the demolition at Commercial Parcel A.
The Grand Jury finds that the unlawful demolition conducted at Commercial Parcel A occurred in a dangerous and unacceptable manner. This demolition constituted an utter disregard for the well- being of local citizens, in particular those residents living next to Commercial Parcel A. The Grand Jury finds that the homeowners who resided adjacent to Commercial Parcel A were afforded no advance notice of the demolition, and had to live with legitimate concerns about the safety of their property until the site was effectively cleaned up under an emergency demolition permit.
The Grand Jury finds that the Town Building Department failed to subject the asbestos documentation furnished by Developer A to a rigid level of scrutiny. The Grand Jury finds that the Town Building Department accepted the documents as sufficient and communicated that same sentiment to
the Township. The Grand Jury finds that this documentation, prepared by Survey Corporation A, was insufficient in all respects. It is impossible to know whether the Building Department’s recognition of these insufficiencies would have had any impact on the sequence of events that resulted in the unlawful demolition at Commercial Parcel A.
The Grand Jury finds that the demolition of Commercial Parcel B was also pursued by Town Employee A. The Grand Jury finds that while demolition was realized through the lawful issuance of a Town Building Department permit, the process of Site Plan Review was once again inexplicably and unacceptably avoided. The Grand Jury finds that at a minimum, the cost of failing to employ this process at Commercial Parcel B was allowing it to fall into an aesthetically offensive site condition.
The Grand Jury finds that the Office of the Town Assessor requires residential property owners to provide proof that they possess permits before acting on a formal request to reassess the property. The Grand Jury finds that the Office of the Town Assessor does not require commercial property owners to satisfy this same burden before a request for reassessment is entertained.
The Grand Jury finds that the Town Code of Ethics does not include an affirmative action provision which mandates that public servants report activities known to violate the Town Code to an appropriate Town Department or authority.
The Grand Jury finds that the Town Code of Ethics does not adequately provide for the removal of its public servants. While the Code of Ethics allows for the removal of a limited category of appointed officials pursuant to a violation of the Ethics Code, this provision fails to cover all public servants.