MASSENA - A Massena businessman has avoided fines through a court settlement for operating a wood-burning boiler in violation of village code, a ruling which angers his neighbor.
Alexs Ice House, 30 George St. was operating a wood-burning boiler manufactured after the village Board of Trustees passed a 2005 ordinance banning such devices, Code Enforcement Officer Gregory C. Fregoe previously said. The village had issued a 30-day cease and desist order in November for Alexs to stop using the boiler. Mr. Fregoe issued Alexs owner Ted Krywanczyk an appearance ticket in December after he continued to use it.
Mr. Krywanczyk replaced an older wood-burning boiler installed before the 2005 ordinance with a newer one and did not receive a village permit, Mr. Fregoe previously said.
Massenas justices recused themselves from the case, citing potental conflicts of interest, and the case was transferred to the Waddington court.
Earlier this month, the village and Mr. Krywanczyks attorney, John Collins, reached a plea agreement with Waddington Justice Larry Sears presiding. Mr. Krywanczyk admitted using a wood boiler in violation of village code, and in return, avoided any fines or penalties for the violation. In addition, Mr. Krywanczyk has promised the village he will remove the outdoor boiler and install another energy source within a reasonable amount of time, according to Village Attorney Matthew McArdle.
In acknowledgement that his outside wood boiler is a violation of village code, the village agreed to give him some time, Mr. McArdle said. Thats what the village has wanted all along, is just his cooperation of fixing the problem.
If he is not making his best effort to do that, it will go up to the judge for the imposition of a penalty, he added.
Mr. McArdle said the reasonable time frame was not firmly established. But the village is hoping the boiler would be removed before the cold weather arrives in a couple months.
Mr. Krywanczyk said he was satisfied with the settlement because it enabled him to continue burning wood at his property. He will install a replacement boiler indoors, which follows village code.
I just want to be able to burn wood, he said. Our family has been burning wood forever.
Mr. Krywanzcyk said he is narrowing his indoor wood boiler options and plans to replace it later this year.
The court settlement is too lenient for Marty Fowler, who lives near the George Street business and has brought past concerns to the village board of the wood boilers pollution effects on his family.
It was an absolutely dreadful and horrible decision, Mr. Fowler said. Thats insane to give a plea bargain to a guy that admitted to breaking the code.
The village could have fined Mr. Krywanczyk between $50 and $250 per day, and sentenced him to up to 15 days in jail, for each day he was in violation. Mr. Fowler wondered why the punishment was not harsher because of the guilt admission. He also wondered why outdoor boiler was still in place and was not convinced the time frame provided in the settlement would prevent Mr. Krywanczyk from using it again.
My family will still be breathing the harmful smoke this year, he said.
If thats the way youre representing law abiding citizens, its just ridiculous, he added. Not only do we have the right for our codes to be enforced, I have the responsibility to ensure my family is safe. We have the right and responsibility to stop that furnace from endangering the welfare of our children.
Mr. Fowler said he and his family were considering additional legal actions following the court settlement. But the settlement was a good deal for the village and the Fowlers, Mr. McArdle countered.
The court was agreeable that this was a good reasonable settlement, he said.
Mr. Krywanczyk was prepared to have the case argued in court, and the judge could have ruled in favor of him and allowed him to keep using it, Mr. McArdle said. Instead, he waived his defenses, admitted guilt and agreed to remove the boiler.
There are always risks in litigation like this, he said. The Fowlers ran the risk that the judge would agree with Alexs Ice.
Mr. McArdle said he was in consultation with Mr. Fregoe and Mayor James F. Hidy prior to the settlement.
I think it was a very good and reasonable settlement given the circumstances, he said.
But Mr. Fowler was convinced Mr. Krywanczyk would have lost had he argued it because of evidence stacked against him.
What else do I have to do? he asked. Its just ridiculous.
He also wondered if Mr. Krywanczyk received special treatment because of his role as an assistant volunteer fire chief, an allegation Mayor James F. Hidy strongly denies.
The village cited Mr. Krywanczyk and did its due diligence, Mr. Hidy said.
It was treated just the way it should have been treated, Mr. Hidy said. The village went as far as it could go.