MAHOPAC, N.Y. - Councilman Mike Barile said last week that he is filing a lawsuit against the town of Carmel, Putnam County and New York City’s Department of Environmental Protection (DEP) seeking an Article 78 proceeding.
An Article 78 proceeding is used to appeal the decision of a New York State or local agency to the New York courts.
Barile’s lawyer, Michael Caruso, told Mahopac News he met with Barile last week and that the defendants named in the suit will have been served with the papers by the time this newspaper went to press.
At issue is the ongoing controversy over the sewer hookup of Blu at the Lakehouse restaurant on South Lake Boulevard, a property owned by Barile and his partner. For many years, the restaurant had operated on a septic system but as the business grew, Barile sought to bring it into the town’s sewer system.
Earlier this month, the DEP said the restaurant had hooked up to the town’s sewer system without the necessary permits and the city was holding the town of Carmel responsible. The town responded by hiring an outside law firm to investigate the matter and defend the town. Town officials had asked the DEP to halt the permitting process for the restaurant until that outside counsel was hired.
Barile contends that the DEP permit is the last one he needs to bring the sewer hookup into compliance and that some Town Board members were deliberately slowing down the process as retribution for his filing a complaint with the state comptroller’s office last year over the town’s procurement procedures.
“I am very upset about how the town is treating me differently than everyone else,” he said. “They asked the DEP to stop their work because they’re hiring this law firm. All that does is give [Journal News columnist David McKay Wilson] more things to write about.”
Wilson has written a series of columns critical of how Barile has handled the Blu Restaurant sewer issue.
Last week, the Town Board officially hired the Manhattan-based law firm of Cozen O’Connor to represent the town in matters regarding the Blu Restaurant issue and the DEP. Barile has argued that was a waste of money because the permitting process was nearly over until the board asked the DEP to temporarily suspend the process.
“This is strictly to get the town to go in front of a judge and explain why it is taking so long,” Barile said. “I want to force them to tell a judge what is going on and why they are playing around. It forces them to do it immediately and stop the law firm in Manhattan from running up the bill—stop taxpayers from losing more money.”
Councilman John Lupinacci said that was ironic because now the town will have to hire an outside attorney to defend itself in the Article 78 proceeding, thus costing the taxpayers money. Town attorney Greg Folchetti has recused himself from the matter because he can’t represent all five board members when one is the subject of a violation as a private citizen.
“[Barile] keeps talking about how expensive it is [to hire an outside law firm], but now we are going to have to hire a lawyer to defend us in the Article 78,” Lupinacci said.
Lupinacci said Cozen O’Connor simply needs time to wind its way through the paperwork and get up to speed, something, he said, won’t take that long.
“Let them get up to speed,” he said. “It’s not like we hire them and then boom, we are back at the table with the DEP. Professional courtesy is to give them some time.”
Lupinacci said he was reluctant to comment too much about the Article 78 lawsuit because as of press time he hadn’t seen it. But he added that since the outside law firm is now officially hired, he has no problem with the DEP permitting process moving forward.
“This is not a witch hunt. We needed legal representation that could get on the phone and converse with the DEP, the DEC, the Department of Health,” he said. “Not a lot of local attorneys are willing to do it. Cozen O’Connor does this sort of thing. It’s their specialty. We are not wishing evil on anyone.”
Lupinacci called Barile’s allegation that the town’s request to halt the DEP permitting process was retaliation a “petty, emotional response.”
“We are just trying to do it appropriately,” he said. “This has nothing to do with retaliation. If he has been watching for the last eight years, he knows I am very thorough and appropriate. I don’t just react.”
Barile was also critical of the way the board hired Cozen O’Connor without seeking bids or requests for proposals—a procurement procedure he claims the board has been lax in following.
However, Lupinacci said Barile can’t have it both ways. Noting that Barile has been critical of the town dragging out the permitting process, he said that sending out RFPs would have done just that—dragged out the process.
“That would have prolonged it,” Lupinacci said. “You can’t have it both ways.”
Supervisor Ken Schmitt said that now that the outside law firm has been hired, he wants the hold on the DEP permitting process to be lifted.
“The DEP should 100 percent move forward with the permitting process,” he said. “The longer it’s delayed, the more it costs the town. My understanding is that this is the final piece; the other regulatory agencies are satisfied. There is no reason why it should be on hold.”
Schmitt said he would call the DEP himself and tell them to move forward.
Asked if he believed the delay was part of a retaliatory act by other board members against Barile, Schmitt said he couldn’t be sure.
“There is no way to validate that,” he said. “I certainly hope it’s not, but there is no way to prove it or disprove it. But I guess you could draw that conclusion.”
Councilman Jonathan Schneider and Councilwoman Suzi McDonough did not respond to Mahopac News’ requests for comment.