MAHOPAC, N.Y. - Councilman Mike Barile and the estate of his former partner, Tommy Boniello, have agreed to pay a $105,000 fine for an illegal sewer connection at their property at 825 South Lake Boulevard, the site of the former Blu at the Lakehouse Restaurant.
Boniello passed away in May and the restaurant ceased doing business earlier this year.
The fine was unanimously approved by the Town Board in a 4-0 vote, with Barile abstaining, during the board’s Dec. 16 meeting.
Barile said he also would have voted yes on the resolution but was advised by legal counsel to abstain.
The fine brings to an end a year-and-a-half-long investigation into the matter.
The scenario actually dates back decades to when the property in question housed a small hamburger stand and Barile converted it into the restaurant it became. At first, it used a septic system for wastewater disposal. Then, in 1991, the town gave Barile permission to connect the property to the town’s sewer line, providing he obtained the proper permits. Last year’s investigation revealed that the permits were never obtained.
Barile was given a notice of violation for the connection’s lack of permits. But regulatory agencies overseeing the connection—the state’s Department of Transportation and Department of Environmental Conservation and New York City’s Department of Environmental Protection (DEP)—opted to give him a chance to obtain the necessary permits and bring the hookup into compliance.
However, town officials contend, Barile never lived up to his obligation to come into compliance. Instead, they said, a dye test conducted in December 2019 revealed that the restaurant was actually connected to a town sewer at a second location. “At no point was the second connection disclosed or approved by the town or the Department of Environmental Protection,” stated a report from the town’s engineering department.
Consequently, the engineering department issued Barile a second notice of violation, saying all connections must be capped, and gave him a timeline to remedy the issue or face potential fines and criminal charges.
In that second notice-of-violation memo, town engineer Richard Franzetti wrote, “[With] your failure to comply with the terms of this second notice of violation and cease-and-desist order in a timely fashion, the town reserves its right to disconnect your unauthorized use of Sewer District No. 1 and to factor the cost in any fine or penalty assessed.”
Franzetti’s memo laid out 81 points detailing the timeline of events, with supporting documents, that led to the second notice of violation.
The memo states that Barile failed to submit a progress report of his plans to come into compliance with the Sewer Use Law by a Dec. 16, 2019, deadline.
“You failed to mitigate [any] further risk associated with the unauthorized connection by utilizing the on-site [septic] or disconnecting such connection at the property,” Franzetti wrote in the memo to Barile and Boniello. “In response to a question as to why you had not reconnected to the septic system, your counsel publicly stated, ‘That’s a good question. I wish I could answer that for you without getting in trouble.’ Consequently, I find your failure to mitigate potential noncompliance as it relates to the Sewer Use Law and the town’s status under the 1938 Agreement with DEP to have been willful.”
On Dec. 1, 2019, Franzetti sent the DEP a letter in which he withdrew the town’s consent for Barile’s out-of-district hookup request. It was previously deemed compliant because Barile had submitted inaccurate “as-built” drawings and because all DEP-required actions and testing had not been completed to the satisfaction of both the town and DEP on or before a Dec. 6, 2019, deadline.
Barile was required to submit a 10-day compliance plan. He was also asked to submit correct “as-built drawings” under an independent third-party engineer’s seal.
Town officials say the second set of violations stemmed from an investigation by Cozen O’Connor, an outside law firm based in Manhattan. The town has paid the firm nearly $200,000 for its services, far more than the fine Barile agreed to pay.
But Supervisor Ken Schmitt said that the amount of the fine and the cost of legal counsel were separate issues.
“The penalty was not related to the legal costs—not tied at all to legal counsel. They were two separate issues,” he said. “[The fine] was separate that stood on its own through negotiations. We didn’t factor what the legal costs were.”
As noted in the Dec. 15 resolution that authorized the fine, in March of this year, Barile conducted a successful pressure test of the sewer line originating at the restaurant property and reconfigured the line so that it entered Sewer District No. 1 at a Clark Place manhole. After he completed the closure of the second connection, all under the observation of Franzetti and representatives of other interested agencies, the New York City DEP then approved the out-of-district connection, meaning Barile had met the conditions set forth in the original 1991 agreement.
The DEP then advised town officials that its primary objective in the matter had been to obtain full regulatory compliance of the connecting line from the restaurant to Sewer District No. 1 and no further proceedings were necessary.
According to the resolution, the payment of the fine levied by the town also absolves all past and present town officers and employees from liability in any claims related to the matter.
Barile told Mahopac News that he agreed to the fine in order to avoid spending any more taxpayer dollars on lawyers’ fees.
“After a horrific year of COVID and the loss of my business partner of over 40 years, and several close friends, I made a decision and agreed to compromise so as not to waste another $50,000 to $100,000 in lawyers and put my family and Tommy’s family at ease,” he said.
But Barile also noted that, other than a small penalty from the county, the town of Carmel was the only entity to level a fine at him.
“The Department of Transportation did not penalize us one penny. The Department of Environmental Conservation did not penalize us one penny. The Department of Environmental Protection did not penalize us one penny. The Putnam County Board of Health did fine us $350,” he said.
Barile said he went to Supervisor Ken Schmitt’s home last August and asked him how to bring the scenario to an end from the town’s perspective.
“I asked the supervisor on the front steps of his home, ‘What else is there? What do I have to do to end this nightmare?’” Barile said. “Kenny says, ‘You have to pay a fine.’ We went back and forth with words that only friends can use with each other. I finally said to him, since my partner is dead several months, I will donate $25,000 to St. John’s food pantry. I will also donate $25,000 to St. James food pantry. But not one dollar to your lawyer’s bill.”
Schmitt said that he believes Barile knew that ultimately there would have to be a financial penalty.
“I didn’t ask him to come over and there really wasn’t any discussion about charitable donations,” Schmitt said. “I think it was known to him there was going to have to be some kind of fine.”
Pursuant to Town Law 135, the violation of the Sewer Use Law is a misdemeanor punishable by fine or imprisonment or both. Anyone found to have violated the code faces fines not to exceed $1,000 per violation each day of noncompliance. Consequently, Barile could have been fined as much as $400,000. Additionally, the county district attorney’s office has been conducting an investigation into the matter.
Barile said he found out several months after his meeting with Schmitt about the DA and sheriff’s department investigating him for possible theft of services. That prompted him to agree to the $105,000 fine.
“Who knows how much taxpayer money was still being spent on a law firm to investigate two well-known residents,” he said. “So, with that I agreed on settling. At least the taxpayers get something back.”
Barile has contended from the outset of the investigation that certain Town Board members targeted him due to personal vendettas both past and present.
“I truly believe that some members of this board and past boards have selectively prosecuted me based on personal animosity,” he said.
Schmitt said he was just happy to have the issue over and done with because the Town Board has much on its plate these days and does not need the distraction.
“I am happy it’s been resolved and put behind us so we can move forward,” the supervisor said. “It was a distraction to me personally. I focused on it a lot and it took my attention from town business. We are dealing with a lot of projects right now: the new park and revitalization of downtown Mahopac; the master plan update; the project in Sewer District 2; the expansion of the sewer along Route 6. We have a lot to do.”
Schmitt noted that the agreement between Barile and the town is still not technically completed.
“Until it is signed, it’s not done yet,” he said. “But I think what you saw was a step forward. We need the closure.”