Both sides satisfied with Hen Island ruling

January 28, 2011

The war between Hen Island resident Ray Tartaglione and the city, which elevated into a lawsuit, has left both sides sensing déjà vu.

On Jan. 20, the state Supreme Court in White Plains ruled in favor of the city, bringing an end to the suit initiated over alleged environmental and health wrongdoings that Rye allegedly turned a blind eye to.

But Tartalgione, a seasonal city resident who doesn’t plan on appealing the decision, saw the ruling in a different light – claiming it was what he was looking for all along. “I think it’s a great decision,” he commented. “We knew all along they had discretionary enforcement. I’m happy with the decision, I think it’s terrific.”

Originally filed in court on June 7, 2010, the suit, through an Article 78, compelled the court to order the city to enforce its sewage laws as per its City Code. The city had long contested that the issues were under the direct jurisdiction of the county Health Department. The court findings leave the city with the right, if it so chooses, to enforce its law which was deemed applicable by the courts.

Issues grew out of Hen Island, a 26-acre privately owned seasonal island lying off the coast of Rye’s Milton Harbor. The island, home to 34 summer cottages, has no electricity or running water and is only accessible by boat.

Tartaglione claimed the administration of former Mayor Steve Otis (D) was “derelict in its duty to act in accordance with its local law to require that all private sewage systems bordering all watercourses…be inspected annually.” The petition also stated a complete failure to protect the ecology of the most environmentally sensitive areas of the city from raw sewage emitted from sewage systems. Tartaglione sought a declaration that the city had violated the law and be ordered to complete health inspections on the island and certify all structures.

The city filed a motion to dismiss the lawsuit on several grounds. Although the court found several of those without merit, it did dismiss the suit on the grounds that Tartaglione failed to state a cause of action.

Kristen Wilson, the city attorney who tried the case, said the city has no reason or intention to enforce Chapter 161-1 of the code. Also, the Rye City Council may look to revise the law and clarify language highlighted by the county as the lead in health concerns.

The court ruled that the section of the City Code in question falls on the property owner. Nowhere within that statute does it expressly state that the city has the duty to perform the inspection, instead that “the decision to enforce a municipal code rests in the discretion of the public officials charged with its enforcement.”

“We’re pleased with the ruling,” Mayor Douglas French (R) said. “[It] speaks to the fact that we’ve always believed the county is our health department and we look to them for that service.”

The mayor felt the case was over and wouldn’t be reopened. French believes the city was within its right not to enforce the code that is on its books. “We don’t have the level of expertise,” he added. “It’s part of a range of services that the county provides.”

But the court also ruled that the City Code is still applicable; it still appears on the books today and its history fails to reflect any such repeal. In addition, the court said that the county has not usurped local municipalities’ rights to pass their own regulations regarding such systems.

“Rye has been pushing this off to the county for years,” the plaintiff added. “Rye should be taking the lead in this and they’re not.”

The battle over Hen Island was one waged for years, often spilling over into the public spectrum and drawing a farcical spotlight on Rye.

In 2007, Tartaglione brought suit separately against Westchester County and Kudor Island Colony Inc., a corporation of seven shareholders who serve as the island’s governing body; both cases were dismissed. He once served as president of its governing board – and one of 34 island shareholders – but was ultimately ousted by his fellow shareholders in a power play. Since that time, the two sides have been engaged in an ongoing dispute.

Three years later, in April 2010, the city conducted an inspection of the island under the direction of then-City Manager Frank Culross, following the controversial dismissal of former City Manager Paul Shew. Numerous violations were identified for improper storage of propane tanks, excessive debris, lack of maintenance and uninspected solar panels. However, any environmental or health-related concerns were simply forwarded to the county as the city turned a deaf ear.

But in Rye, Tartaglione may be known best for enlisting “Mr. Floatie,” a human feces mascot, to aid his environmental crusade. The charade turned Rye City Council meetings through 2009-2010 into circus-like renderings with the critic pushing to unseat then-Mayor Otis from office during the 2009 election. He hoped new leadership would benefit his efforts. It didn’t. In fact, the political turnover did little to change Rye’s stance on the issue, with a new administration taking the same tact as its predecessor.

Tartaglione told The Rye Sound Shore Review on Wednesday night that he was shocked by the stance of the new administration. Particularly, since the plaintiff said one of French’s campaign promises to him during the 2009 election was to take care of the problems on the island. “One of those promises was to install environmentally friendly toilets,” he continued. “I haven’t seen one yet.”


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