LOCKPORT — What is the "just" outcome of a housing court case in which a property owner is clearly guilty of making a mess in his neighborhood, and clearly lacks the ability to clean it up?
Community service? A stiff fine? A stint in jail?
City Judge Thomas M. DiMillo practically threw himself on the mercy of his own court Thursday, when he found Patrick McFall guilty of a single sanitation violation, then declared he couldn't pronounce sentence on McFall instantly, because he's not at all sure what a fair and appropriate punishment is in the case.
"I don't know where I'm going to go, and I mean that," DiMillo said from the bench. "The real issue in my mind isn't (guilt), it's where does this go from a remediation standpoint? If Mr. McFall can't do it, what do we do with him? What has he done, or not done, to contribute to this problem?"
McFall is the owner of 316 Willow St., commercial property that used to house Peters Dry Cleaning. A wing of the building collapsed Dec. 15 and the rubble — concrete blocks, bricks, broken windows, shards of steel and roofing — remains piled on the ground to this day.
McFall is guilty of a sanitation violation for failing to clean up the mess, "sanitary" being defined in state law as "free from elements that endanger public health."
McFall can't afford to have the pile picked up because it's tainted with asbestos, he has testified in two court proceedings regarding the property. The offending substance can't just be lifted out of the pile, the whole pile has to be lifted and disposed of specially, per state labor regulations.
Under oath Thursday, the last day of his three-day, non-jury trial on the sanitation charge, McFall said he obtained an estimate from a remediation contractor showing the job would cost upwards of $58,000.
"There's no way for me to come up with that money," he said.
McFall's attorney, Jon Ross Wilson, kept him on the witness stand for the better part of an hour, eliciting testimony aimed at demonstrating he's willing but financially unable to cope with problems at 316 Willow. The whole property is ruined by circumstances beyond McFall's control, Wilson argued.
Three-sixteen Willow was added to the state registry of inactive hazardous waste sites, that is, the Superfund list, last fall by the Department of Environmental Conservation. Portions of the property are said to be contaminated with PCE, a dry cleaning chemical that's suspected of causing cancer in humans.
The contamination has been known for several years. Former property owner Earl W. Peters had it enrolled in the state Brownfield Cleanup Program, which conveys tax credits for voluntary remediation work, before he sold it to McFall in 2007. The purchase contract between the men called for Peters to continue footing the bill for PCE cleanup and McFall to not interfere with the cleanup, according to terms read aloud in court.
McFall asserted that drilling by the remediation contractor damaged the west wing of the building and caused its collapse. He didn't claim property damage from the drilling or try to have it stopped because of the no-interference clause, he testified.
McFall further said he hasn't had insurance on the property since last year, because of DEC's announcement it's on the Superfund list. Under questioning by DiMillo, he acknowledged he believes it's uninsurable and does not have any written proof of being denied coverage.
McFall testified he renamed and relocated the dry cleaning business to rented space on Main Street this past November, after learning from the DEC that Peters had withdrawn from the cleanup program as of July 2011. He also stopped paying Peters, who holds the mortgage on the property, he said. The move to Main Street cost him between $10,000 and $16,000, he estimated.
In answer to DiMillo's pointed questions about outstanding property taxes and utility charges on the property, McFall said he hasn't paid them since early 2008, on the advice of his former attorney. He claimed the attorney warned him that Peters would eventually abandon PCE remediation, because of the high cost; and counseled that if McFall didn't pay local property taxes, eventually the city or the county would seize the title to 316 Willow. That would be a good thing, according to the attorney.
"His advice was: If it's in your name when (Peters) stops paying for (remediation), the DEC will come after you," McFall testified.
DiMillo questioned McFall's protestations that he doesn't have the money to take care of problems at 316 Willow.
While claiming to be cash poor, McFall testified that he bought a second business, Cafe Karma, just this past February.
Since McFall didn't pay taxes or water and sewer charges on 316 Willow for three years, his dry cleaning business saved a considerable amount on "overhead" expenses — $37,300 as of January 2012, according to the city treasurer's office. Not making mortgage payments to Peters, or buying property insurance, created more savings, DiMillo observed.
And McFall was negligent in not pursuing compensation for building damage due to remediation drilling, DiMillo suggested; the no-interference clause could not reasonably be read as compelling him to eat losses owed to the cleanup.
"I believe you really don't have the money" to hire an asbestos contractor, DiMillo said. "The domino effect of all the decisions you've made ... is what troubles me. ... It's bury my head in the sand, it's plug my ears and hope this thing goes away. And it snowballed."
DiMillo initially proposed postponing McFall's sentencing for one week, so he could take time to think through a fitting sentence, given the likelihood that McFall won't be able to get the offending debris pile cleared away any time soon.
Wilson, McFall's attorney, pleaded successfully for a 30-day postponement instead. That's time enough for McFall to try obtaining a loan to hire a contractor, and/or pull together enough documentation of his financial problems to justify leniency in sentencing, Wilson said.
Sentencing is now set for June 14.