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The town of Busti is moving ahead with clearing part of a Lakewood property – but it's not as much as the town had asked the state Supreme Court permission to remedy.
During its Aug. 31 meeting, the Busti Town Board entered into an executive session to discuss pending litigation before entering back into open session to approve a contract with S. Tabone Paving and Seal Coating for $39,900 for property cleanup and debris removal from properties owned by Lee and Sharon Fischer.
Fischer spoke to the board during the public comment portion of the meeting, questioning the town's authority to remove the items. Discussion was held regarding a court judgment, the town’s Zoning Code, and the number of vehicles permitted on individual properties. Fischer said state law allows one vehicle per property and questioned the town’s interpretation of the judgment. Joel Seachrist, town attorney, said the judgment authorizes correction of conditions that do not comply with the town’s zoning code or the state Property Maintenance Code. It was stated that vehicles and other items that do not comply with the Town Code may be subject to removal.
Seachrist said the law permits one unlicensed vehicle per premises which he interprets as a residence. Fischer disputed the town’s interpretation and said he believed his boats, trailers and vehicles were legally located on his property. He was advised that if he wished to prevent vehicles or trailers from being removed, they should be moved off the property or inside a building if appropriate. Fischer continued to dispute the Town’s position and referenced prior actions involving his vehicles and property. Seachrist stated that the Town Board would rely upon the existing judgment and applicable law.
The court case Fischer and Seachrist referenced is a more than 3-year-old case filed by the town against Fischer. In April, state Supreme Court Justice Grace Hanlon issued a decision ruling against Fischer on some counts and in favor of Fischer on others.
“The defendants did, during the pendency of this litigation, try to clean up their various properties,” Hanlon wrote in her 13-page decision. “This cleanup was not to the satisfaction of the (town). It is also clear that there has been a long-standing personality conflict and animosity between the parties. Despite all the work done by the (Fischers), the properties of the (Fischers) continue to have abandoned cars and other material within the property, the testimony and admitted photographers showed the condition of the various properties.”
Hanlon ruled that the town had proven accumulation of debris and junk across the properties was a substantial health and safety concern under the state Property Maintenance Code as well as that existing structures had created blight conditions to the detriment of the town and nearby properties. But, Hanlon said, the town hadn’t proven that the Fischers’ properties violated state Property Maintenance Codes for weeds or that the Fischers accessory structures, including detached garages, fences and walls, were in violation of the state’s Property Maintenance Code section on accessory structures.
Hanlon found that the town had proven that the properties failed to meet state Property Maintenance Codes limiting properties to no more than one inoperative or unlicensed motor vehicles, that the town had proven the exterior of properties were violating state law requiring buildings to be in good repair, structurally sound and sanitary so they don’t pose a threat to the public health, safety or welfare as well as a pylon sign at 4411 Fairmount Ave. that Hanlon said was shown not to be in good condition.
Hanlon ruled in the Fischers’ favor on the town’s third cause of action, which alleged the properties had caused a public nuisance. That claim made by the town was dismissed. Hanlon then ruled against the Fischers’ claim that the town had engaged in selected code enforcement against them.
and also gave the Fischers’ until Sept. 1 to correct, modify, reconstruct and remedy any areas of the property that don’t comply with Busti’s Zoning Code and Property Maintenance Code. Hanlon said the town is authorized to do the work on the exterior of the properties if the Fischers’ refuse to do so and to levy the expense on the Fischers’ tax bill.
“This court finds that the town of Busti has successfully proven through the testimony of code enforcement officer Jeff Swanson and photographs, violations of other sections but has failed to meet their burden of proof on violations of other sections,” Hanlon wrote.
Hanlon's decision limited to the town to eight properties in Lakewood – 4411 W. Fairmount Ave., 2260 First Ave., 2234 First Ave., 4447 Chautauqua Blvd, 2253 Fourth Ave., 2264 Fourth Ave., 2254 Fifth Ave. and 2209 Fourth Ave. – with bids ranging from $19,500 to $108,500.