Printed From Acorn-Online.com
Unknown if plaintiffs will appeal
Mar 27, 2008
Judge dismisses wetlands lawsuit
Barring an appeal, the three-year saga of the wetlands lawsuit against Lewisboro is over. On Tuesday, Judge Charles Brieant dismissed all charges in the suit, accepting the recommendations of magistrate Judge George Yanthis and overriding objections by the plaintiffs’ lawyer, Alexandra Manbeck of Cross River. It is not yet known if Ms. Manbeck intends to file an appeal to the judge’s decision.
The ruling, only two pages long, ordered that “all claims against defendants in this long pending litigation be dismissed.” It did not give any additional reasoning for the ruling aside from what is in Judge Yanthis’s recommendation, and the only reference to Ms. Manbeck’s objections is a single sentence: “The objections are disapproved.”
The ruling effectively puts to rest a challenge to Lewisboro’s wetlands law, which Ms. Manbeck argued was unconstitutional and violated, among other things, due process and the constitutional right to be free of unreasonable searches.
“I’m glad that it’s been tested in court, and that now shows that the wetlands law is constitutional and important for public health and safety,” said Jim Nordgren, who was town supervisor when the suit was originally filed and was named as a defendant in it.
In addition to Mr. Nordgren and the town, the lawsuit named several members of the Planning Board and other town employees at that time, including former wetlands inspector Jay Fain, both in their official capacities and as private citizens.
The suit was brought by a group of 10 residents who had been brought before the Planning Board by Mr. Fain for violating the wetlands law, which regulates what residents may do within 150 feet of a town-defined wetland.
“After a very long ordeal, I welcome and embrace Judge Brieant’s decision,” said Mr. Fain in a statement to The Ledger. “It is a complete vindication of the work I did for the town of Lewisboro, and for all those individuals who support the concepts of environmental quality and water quality protection. To those people who supported me throughout the litigation, I offer my heartfelt thanks. I am happy that after a very protracted lawsuit, justice has prevailed.”
“Mr. Fain was merely doing his job, which was to protect the environment, and became the target of a baseless lawsuit by a very few number of Lewisboro residents,” said Dan O’Neill, Mr. Fain’s lawyer. “It’s obvious that the allegations were defamatory against Jay Fain, whose actions were exemplary while doing his job for the town of Lewisboro.”
Mr. Fain became a central figure in the lawsuit, as it was he the plaintiffs alleged searched their properties illegally, and who brought the charges before the Planning Board. Much of the suit was based on the idea that Mr. Fain had selectively brought charges against residents and had pre-judged cases.
Mr. O’Neill said he would try to recoup some of the fees Mr. Fain and his insurance company had expended in defending the lawsuit, but that it was not common for defendants in civil suits to receive compensation.
Planning Board members Joe Decaminada, P.J. Rossi and Maureen Maguire, who were all named in the lawsuit, declined to comment due to the possibility of an appeal.
The objection
In accepting Judge Yanthis’s recommendations, Judge Brieant overrode a 140-page objection to the recommendation that Ms. Manbeck filed on Tuesday, March 18. In the objection, Ms. Manbeck took issue with nearly all of Judge Yanthis’s recommendations.
One new issue Ms. Manbeck raised repeatedly in her objection was that, until recently, the town wetlands inspector was required to be a town resident, and thus Mr. Fain, a Connecticut resident, was an “ineligible” inspector. Ms. Manbeck cites as part of this allegation an article in The Ledger from Jan. 24, 2008, that reported on a Town Board meeting in which Town Attorney Jessica Bacal said the state law had been changed to allow Lewisboro’s wetlands inspector to be a nonresident. This created a small debate between Ms. Manbeck and Mr. O’Neill, in competing briefs filed with the court, over whether or not The Ledger could be used as a legitimate source for the court.
Ms. Manbeck’s objection also repeated allegations that the Planning Board had violated due process, by offering “defective” summonses that did not detail every alleged violation to some residents, by not advising residents of the consequences of pleading guilty to a violation and by not taking adequate records of board hearings.
Hearings are recorded on audiotape and supplemented with notes by board secretary Aimee Hodges, but Ms. Manbeck alleged the tape was often hard to hear and inadequate as a record.
Judge Yanthis did not respond to Ms. Manbeck’s criticisms of his recommendation, and Judge Brieant did not address them in his decision to accept the recommendation.
Ms. Manbeck did not return repeated phone calls made Tuesday afternoon and Wednesday morning in time for publication.
Homeowners’ rights
During the course of the lawsuit, it has had a significant effect on Lewisboro politics. In 2005, Republican town supervisor candidate Edward Mahoney was elected by a close margin over incumbent Mr. Nordgren on a platform that stressed homeowners’ rights, based in large part on the lawsuit.
“We felt that the town should not even get into a position where there was a perception of inequity,” said Town Board member Peter DeLucia, a Republican, who was elected at the same time as Mr. Mahoney. “So many people that were enforcing those rules and regulations ... were not treating people the right way. It doesn’t mean at the end of the day that the town was going to lose, but it also doesn’t mean that the town should treat people like that.”
Mr. DeLucia criticized the acts of the town employees that led to the case.
“It’s all a matter of perspective,” he said. “Remember, this whole lawsuit started with a violation issued against a tree house. In my 16 years of code enforcement, I’ve often heard it said that you never write up an igloo or a child’s tree house.”
Peter Manbeck, Ms. Manbeck’s husband, had originally been charged with a violation for building a tree house within a regulated wetlands buffer, although that charge was eventually dropped before the lawsuit was brought against the town. He was later charged by the town with other wetlands violations.
But although Mr. DeLucia supported homeowners’ rights, he said he was pleased by the outcome of the case.
“I think it’s fantastic for the town that we came out on top of this,” he said. “It’s very important that we did, because it shows that our volunteers are enforcing what’s on the books.”
Mr. Nordgren said he hoped the decision would encourage some neighboring towns to proceed with plans to enhance their wetlands laws.
“It’s great for people in Lewisboro, and it also gives the OK for other towns to feel confident that they can strengthen their wetland protections,” he said. “I think it’ll unleash an improvement in wetlands laws. I think it’s important for the whole region.”
History
Ms. Manbeck first sued the town and its employees in 2005, challenging both the town Wetlands and Watercourses Law and the Planning Board’s procedure for hearing and ruling over wetlands violations. Ms. Manbeck went through the system when her husband, Peter Manbeck, was charged with three wetlands violations. One was dropped when a violating structure was removed. The other two still stand: one for a shed and the other for filling, clearing and grading the property. Both were done, without a permit, within the town’s 150-foot wetlands buffer. Ms. Manbeck was also charged with a building violation for filling a pool without proper fencing around it.
The suit was originally filed with Ms. Manbeck as the sole attorney, although she later added more plaintiffs and named additional town officials as defendants. Three years later, the suit named the town of Lewisboro, the Planning Board, and the Conservation Advisory Council. Among the individuals named were Mr. Fain, former Town Supervisor Jim Nordgren, former Planning Board Chairman Jackie Dzaluk, and the other Planning Board members.
There are 10 plaintiffs: Mr. Manbeck, Jay and Carol Durante, Lynn and David Gutermuth, Geoffrey Shaw, Wendy Gennimi, Mary Clark, Daniel Pritchard, and David Oltman.
Judge Brieant denied class action status to the original lawsuit.
The lawsuit made it past a critical first round of litigation in November 2005, when the presiding judge ruled that the suit had enough unanswered questions to declare a more in-depth look at the charges, and because of that, it was not dismissed in federal court as requested by the defendants. The judge also did not feel enough information was presented to render a decision on the case at that time.
The more serious racketeering charges were thrown out, as was filing it as a class action lawsuit. But the judge determined the case should remain in federal court and enter the discovery stage of the court process that allows for depositions of those named in the suit. A second lawsuit was filed in 2005 that was similar to the original lawsuit but included additional plaintiffs. That lawsuit was later enveloped into the original lawsuit.
© Copyright 2008 by Hersam Acorn Newspapers |
|