CAROGA - It's been a dozen years since Joseph Herms began to build a structure on the shore of Canada Lake and six years since the town deemed it illegal and took him to court. The building was demolished last year, but legal fees still are mounting.
The town's attorney, Sal Ferlazzo of the Albany firm Girvin & Ferlazzo, says he'll ask the state Supreme Court's Appellate Division to order Herms to pay more of the town's legal fees following Herms' latest action - a motion filed on his behalf last week to have the court hold on to a piece of evidence from his 2008 trial.
"That will be part of my response to the motion - to ask for attorney fees," Ferlazzo said. "I'm going to request that the town not waste any more taxpayer dollars on this never-ending quest."
Herms, 58, a real-estate broker from Miromar Lakes, Fla., near Naples, bought the Caroga property in 1998 with the intention of building a camp. Herms said the town later determined the site was too close to water, so he changed the building to a boathouse, which the town approved. He planned to build a camp farther away from the water.
But town officials determined the original building actually was intended to be a dwelling, which violated town zoning codes, and filed suit against Herms in 2005. After a three-week bench trial, state Supreme Court Judge Richard Giardino sided with the town in 2008 and ordered the building demolished. It came down in February 2010 after Herms exhausted appeals that would have halted demolition.
Herms said he's challenging Giardino's order to have the boathouse removed in February 2010, saying he'd previously been told he had more time. He also is appealing Giardino's order that he pay some of the town's legal fees. Herms was required to secure a $100,000 bond to cover not only the fees, but also demolition and a $50,000 fine.
But the motion filed Feb. 28 has Ferlazzo on the offensive, saying Herms is "litigating over issues that don't even exist." Through a Delmar attorney, Sheila Galvin, Herms is asking the court to not release a recording of a June 2007 Town Council meeting he placed into evidence during the 2009 trial.
In an interview, Herms said the contents of the tape were changed since the trial. He claims the tape "disappeared" when he requested it in summer 2009, and alleged it went from the control of Supreme Court to the town and Appellate Court before it "reappeared" in the Supreme Court's possession in January 2010, when it was played for Brooklyn attorney Kalmon Glovin, who handled his appeal.
Herms said the recorded meeting included council members' votes on whether to file the lawsuit - two years after the fact - but that portion was missing from the tape.
"I can't speak for [Herms], but I do understand that there was no record of a certain vote being taken on the tape," Galvin said.
Ferlazzo said the tape wasn't changed, and added the town properly approved the lawsuit in 2005 and ratified it on several other occasions. The Appellate Division agreed in a decision filed in May 2009, finding no fault with the town's process.
Herms said his attempts to listen to the tape since the trial have been turned down by the court, and he accused Giardino of covering up the alleged evidence-tampering.
"The evidence is so prevalent, especially now that the judge isn't even allowing a copy of the tape to be heard," Herms said.
Ferlazzo said if the tape is released by the court, he's obligated to produce a copy for Herms before returning it to the town's files.
Herms said he was last in Caroga in January 2010. He said attempts to sell the now-vacant property have been tied up because the town is claiming the land was illegally subdivided.
"All I did was build a boathouse. It wasn't like anything I thought would be a big deal, but this thing has been going on 12, 13 years," he said. "I'm just amazed at some of the things that have transpired with this thing."
Supervisor James Selsmer did not return calls seeking comment. Clerk Linda Gilbert wasn't able to pinpoint the amount the town has spent on the case, but Councilman Ralph Palcovic previously said it's been hundreds of thousands of dollars.
Bill Pitcher is the city editor and can be reached at news@leaderherald.com.