BETTER THAN HEARSAY - “Unconstitutional” says the Judge

By Michael Ryan

WINDHAM - A local law has been declared “unconstitutional” related to a challenge issued by Windham business owner Nick Bove that he was unjustly fined for alleged misuse of the municipal water system.

Greene County Supreme Court Judger Richard Mott rendered that decision on October 27, also determining that a letter sent to Bove by the town, imposing the fines, “is hereby annulled.”

Judge Mott further ruled that Bove, who has twice been a candidate for Windham town supervisor, can “apply for an award of counsel fees,” allowing him thirty days in which to do so.

The case surrounds allegations made by the town that Bove was tied into the municipal water supply for nearly a year without paying.

Judge Mott’s orders come after attorneys for Bove and the town’s insurer couldn’t reach an out-of-court settlement over the spring and summer.

That agreement apparently would have included a statement by the town that Bove had committed no wrong-doing.

Judge Mott, in his decision, made no legal reference to the town claims that Bove had illegally tapped into the water system at his cafe business and a nearby rental property, laying pipeline but not installing meters.

The issue arose when the town was contacted by the Department of Health following a routine inspection of Bove’s cafe business in June of 2022.

On June 27, 2022, Windham town board members, in their dual role as the local Water District Board, sent Bove a letter setting a $100 fine for each of the two hookups, stating, “such violation is defined as criminal tampering, as defined in the [New York State] penal law.”

Bove’s attorney, in the original complaint, stated that the town, “without any basis in fact and in violation of [Bove’s] due process rights, imposed a criminal fine on [Bove] for allegedly stealing water from the Town.

“It did this without regard to the true facts of the matter and without providing [Bove] any opportunity to defend himself.

“The Town has acted illegally and unconstitutionally, and its actions must be overturned by this Court,” Bove’s attorney demanded.

Judge Mott agreed, stating “Bove is the owner of two properties in the Town of Windham. In September, 2021, Bove hired [a plumber] to decommission a well on the properties and to connect to the town water supply.

“On June 8, 2022, the Town of Windham received an email from State Health Department Sanitarian Victor C. DelRegno, Jr., asking to confirm the subject premises were served by municipal water and not by a well.”

Bove was contacted [by the town and] “acknowledged that connections were made to the municipal water system and that he has been using un-metered water since September of 2021,” Judge Mott wrote.

Town officials claimed, “the Water Board had not been notified by Bove, nor had Bove applied to the Water Board, nor had the Water Board approved such application prior to the connections being made,” Judge Mott wrote.

“The issue of Bove’s alleged wrongful connections appeared as an item of business published to the Town website at least 24 hours prior to [a] June 23, 2022 Water Board meeting,” Judge Mott wrote

“At the meeting, the Water Board made a determination to assess a penalty rate for unmetered water,” Judge Mott wrote, sending the letter to Bove four days later.

“Bove asserts that the actions taken by the Water Board at their June 23, 2022 meeting were in violation of his right to procedural due process of law,” Judge Mott wrote in his decision.

Those rights are “guaranteed by the Fifth and Fourteenth Amendments of the U.S. Constitution, as well as by Article I, Section 6 of the New York State Constitution,” Judge Mott wrote.

Due process was denied, “in that guilt was determined and a penalty imposed prior to [Bove] having an opportunity to be heard in response to allegations,” Judge Mott wrote.

“There can be no doubt that the [June 27, 2022 letter] advised Bove of the Water District’s determination of guilt and the imposition of the fines.

“Imposition of monetary fines and penalties implicate Bove’s property interests. The letter utterly fails to give any notice whatsoever of a right to be heard,” Judge Mott wrote, specifically mentioning Thomas Hoyt in his roles as town supervisor and Water District Board president.

Bove, in his original complaint, suggested Hoyt, as part of the decision to impose penalties and fines, was “not an impartial decision-maker as [Bove] ran against him in the 2019 election for town supervisor.”

No mention was made of that in the recent decision by Judge Mott who wrote that, “Local Law #3 of 2007 contains no provision for a customer accused of making an unauthorized connection to be heard.

“Only after Bove’s counsel contacted the town attorney was the matter placed on the [Water District Board] agenda to give Bove an opportunity to be heard,” Judge Mott wrote.

“The government’s interest in preventing unauthorized connections and un-metered water usage is significant,” Judge Mott wrote.

“However, there does not appear to be any significant administrative burdens associated with allowing a person an opportunity to appear before the Water Board, or before an employee of the Water District with authority to correct inaccuracies,” Judge Mott wrote.

“An informal process for review of customer complaints would be sufficient to satisfy due process. Local Law #3 of 2007 fails to provide even an informal process,” Judge Mott wrote.

It is expected the town will review the existing law. It is also expected Bove will be billed for any un-metered water usage, using a formula comparing current use with the same period in 2022.