A month after an attorney representing the Shaker Road Fire Department met with the town to discuss drainage problems of residents living on the surrounding property, Colonie officials say they are still working on having a third-party inspect the land and determine whether the town should be responsible for the damages the residents are seeing.
Town Attorney Michael Magguilli said, We’re still following up on what we had discussed, referring to a discussion that took place in an agenda review session before a regular town board meeting on Thursday, Feb. 26.
During the discussion, Shaker Road’s lawyer Jack Clarke spoke of a deed that transferred ownership of a 1-acre parcel of land to the fire department from the town.
While the deed giving ownership to the fire department was signed by all parties in 2001, including then-Supervisor Mary Brizzell, according to Town Attorney Michael Magguilli, it was not recorded until six years later. During those six years, town employees dumped 15,000 cubic yards of `spoils,` a composite material of dirt, tree bark and debris, on the land.
Magguilli said documents show that the then-town attorney’s office did intend to record the deed, but the recording of the deed was put on a six-year hold after William Neeley, a highway supervisor who was recently demoted for his role in the dumping of spoils at the West Albany Rod and Gun Club, had sent e-mail to someone in the attorney’s office under the name `SP` asking that person to not record it.
Magguilli has openly questioned why somebody in the highway department would be telling someone in the attorney’s office when to record the deed.
As a result of the dumping of spoils, Clarke said, several residents on nearby Dorwood Drive and surrounding streets have complained to the fire department about drainage issues and flooding of their yards, pointing the finger at the fire department and seeking retribution.
One such complainant was Michelle Ovitt, who lives at 19 Dorwood Drive.
According to Ovitt, the drainage problems caused by the land led to the flooding of her yard nearly every time a big storm hit.
`There was no system to take the water, so the drywalls would fill up when it would rain,` she said.
Ovitt said that the original piping system that comes from the parcel of land ends on her yard, which is why storm water would drain from their pipes to her yard, causing flooding.
Ovitt also said she went to the firehouse with her complaints several times, and while the problems spanned several years, the town finally came to fix it in November 2008.
`My fence is still a mess,` she said. `But I’m still waiting for a big downpour to see if the problem is really fixed.`
According to Clarke, the fire department could sue the town should the town not assume responsibility for the damage of the residents’ homes.
During the Feb. 26 discussion, Magguilli said he would like to have a third-party inspector evaluate the issue to determine if the town is at fault.
As of press time, Magguilli said nobody has been to the land to evaluate it yet, but that the town is working on following up on the discussions with the fire department.
`We’re just proceeding as planned,` he said, commenting that now that the weather is beginning to warm, it will be easier to have someone look at the land.
Arnest Zilgme, who was the town attorney during the time that spoils were dumped at the 1-acre parcel, said he does not know why the deed was not recorded for such a length of time. However, he said, the reason could have been that there was a condition precedent that established the town would be able to do work on the land, signing it over to the fire department once the work had been finished. The work that was being done, according to Commissioner of the Department of Public Works Robert Mitchell, was filling the land with spoils and leveling it off.
Zilgme said he is not sure this was the case with the fire department and town at that time, but that it is likely the town expected the work being done, including the dumping of spoils, would take less time than it actually did.
According to Zilgme, if this was the case, and the reason the deed was not recorded for so long, then it would make sense for a supervisor in the highway department to be advising someone in the attorney’s office of when to record the deed because only someone in the highway department would know when the work on the land was complete.
Zilgme said he does think he remembers a drainage easement being put on the land, allowing the town to come onto the land in the event of a drainage problem and correct it, but according to Mitchell, there are no drainage easements.
`In reading the deed, there was some reservation of rights for the town, from a legal perspective,` said Mitchell.
`[But] I don’t know of any easements on that property.`
Mitchell did say that there is some language in the deed that indicates the town could go onto the land and maintain it, although there are not specified easements.
Without easements, the town would not be able to go onto land that belongs to the fire department to fix the drainage issues.
Mitchell said he is unfamiliar with the issues that are being talked about regarding this particular parcel of land and that he has `no idea what the drainage complaints are.`
Ovitt said she had read about the issues regarding the parcel of land that she believes was responsible for the flooding of her yard for several years.
`I hope they all settle it,` she said. `I just hope no one makes it so that water is in my yard.`
“
