HOUSING COURT: City drops case against ailing homeowner

Local News

July 10, 2009

By Joyce Miles<br><a href="mailto:joyce.miles@lockportjournal.com">E-mail Joyce</a> The Lockport Union-Sun %26 Journal Fri Jul 10, 2009, 12:15 AM EDT

The city is dropping its housing case against a property owner who reportedly is terminally ill.

Richard Gerber, owner of 267 West Ave., was facing several charges tied to the condition of the one-family property. He also was the subject of an arrest warrant by Judge Thomas DiMillo after failing to appear in court on the case.

DiMillo rescinded the warrant, and Prosecutor Matthew Brooks recommended dropping the building code charges, after Gerber’s son, Michael, pleaded a case for mercy Thursday.

Michael Gerber said his father is receiving nearly daily treatments for late-stage cancer and that’s why he wasn’t able to come to court. He offered to show proof if necessary. Richard Gerber no longer lives in the house, he added.

The house isn’t worth much and won’t be fixed up by the Gerber family, Michael Gerber said candidly.

“I’m trying to sell it for the price of the taxes, nothing more,” he said. “Nothing’s going to be done with it. ... I’m just here today trying to keep my dad from getting arrested.”

Brooks agreed to drop the case against Gerber altogether after learning the house likely will be seized by the city this month for non-payment of taxes.

•••

Also Thursday, the attorney for Thomas Granchelli, owner of 37 Niagara St., requested dismissal of 23 building code charges against him on a technicality.

At Granchelli’s arraignment, attorney HenrikCQ Hansen argued the notice of charges is flawed because it does not spell out, 23 times, which law allegedly was broken and how.

The notice that goes to cited owners recites sections of International Building Code that allegedly were violated, but it, in fact, does not necessarily say how, specifically.

For instance, the notice could repeat paragraph(s) of the code pertaining to the condition of foundation walls, but it won’t say, “the east foundation wall is cracked.”

The lack of information about what’s supposedly wrong makes defense of the charge difficult, Hansen claimed.

“This is a quasi-criminal proceeding. ... I can’t prepare a defense without (that information),” he said.

Hansen, Brooks and DiMillo, all attorneys, argued back-and-forth for a while whether the notice was legally sufficient. When Brooks grew impatient with the talk about motions, withdrawal, rewritten notices, et cetera, he interjected, “We can avoid all of that by (Granchelli) getting the repairs done.”

If the violations are severe enough, Brooks added, building inspection could invoke its authority to condemn the living quarters (and by extension, order all occupants out). That got all the attorneys arguing whether condemnation requires a court hearing first; DiMillo and Brooks both said it does not.

“I’ll take my chances,” Hansen responded. “I’m asking for dismissal (of the charges).”

DiMillo gave Hansen two weeks to present him with a written argument for dismissal; Brooks then will have two weeks to respond to it in writing, and they’re scheduled to argue their respective sides verbally Aug. 6.

According to court documents, Granchelli is charged with violating sections of building code relating to the condition of fire alarms, bathrooms, plumbing, utilities, roofs/drainage, stairways, doors, windows and the outer shell of the house.

What specifically is wrong in the house, Building Inspector Jason Dool would not say after court. All building and housing inspectors remain under orders from their boss, Chief Building Inspector Jim McCann, not to speak to the press, he said.

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