Dispute over taking on private roads as public highways gets personal

The dispute over the status of roads in a Baiting Hollow soundfront community keeps on growing. The town highway superintendent and the town board are now poised to settle their differences on the issue in court — with Riverhead Town taxpayers picking up the tab for legal expenses on both sides. And, as a local election looms, both sides accuse each other of playing politics.

Highway Superintendent George Woodson opposed the town board’s move to incorporate the private roads in the Oak Hills community as “highways by use” under state law. He argued that the Oak Hills roads don’t qualify under the statute and said their condition would require the expenditure of significant money from the highway fund to repair and maintain. A divided town board went forward with the move over Woodson’s objections. The highway superintendent dug in his heels and said he would not heed the board’s decision.

“You can’t spend highway funds on private roads,” Woodson told RiverheadLOCAL. “And the roads in Oak Hills are and always have been private roads.”

Claiming that the town board’s decision violated state law, Woodson said would hire his own lawyer to sue the town board over the decision. But Woodson needed the town board’s approval to spend town money on a lawyer for Woodson and on Oct. 6, a majority of the town board rejected that idea, voting down a resolution to hire Mineola attorney Peter Bee to represent Woodson.

Woodson and the entire town board, meanwhile, are defendants in a lawsuit brought in September 2016 by the Oak Hills Association, representing the 85 homeowners in the community. The Riverhead town attorney’s office had been representing the officials in that lawsuit, but the chasm between Woodson and town board prevents the town attorney from representing all the defendants — they have conflicting interests and can’t be represented by the same lawyer. Also, since town attorney Robert Kozakiewicz advised Woodson in his actions that eventually gave rise to the lawsuit — a letter to the homeowners in 2014, drawn up with the town attorney’s assistance, advising the homeowners that the highway department would no longer plow the Oak Hills roads — the town attorney has a conflict of interest representing any of the defendants in the Oak Hills Association lawsuit, where the board and Woodson are at odds.

That led the town board at its last meeting to hire outside counsel to represent it in the Oak Hills lawsuit. In a 3-2 vote, with council members John Dunleavy and Jodi Giglio dissenting, the board hired Brookhaven attorney Garrett Swenson Jr. to take over their defense in the litigation.

But the board didn’t appoint a lawyer to take over the highway superintendent’s defense in the case, leaving Woodson without legal representation.

“Gio has basically declared war on the town board,” Supervisor Sean Walter told RiverheadLOCAL last week.

“Now, we have our counsel reviewing whether we have an obligation to provide him with counsel to sue the town board — because Gio conflicted the town attorney’s office,” Walter said. “It’s the most unproductive thing I’ve ever seen.”

Woodson, typically low-key, is angry and grows animated discussing the situation.

The town’s position on its responsibility for private roads “came from the town attorney’s office,” Woodson said. “The people wanted to sue us,” he said, referring to the claim of a homeowner for damage to a driveway apron by a town snow plow in the winter of 2014, “and I went to the town attorney’s office for direction and this is what I was told to do,” he said.

“Who else was I supposed to ask for legal advice if not the town attorney?” Woodson asked. “I was directed to send the letters out by the town attorney and that’s what I did.”

The letters sparked a torrent of complaints from individual homeowners and the association. And the complaints led the town board to adopt a new code to allow the town to incorporate private roads as “highways by use” for limited maintenance purposes, such as snow-plowing — without taking ownership of the roads as public highways.

The Oak Hills Association was not satisfied with that limited action and last fall sued the town board and Woodson, challenging the validity of the new code and seeking the town to take full responsibility for the roads in the community. The town board was in settlement talks with the association when on Sept. 5 it adopted a resolution taking in the roads as “highways by use” under state law — essentially giving the association what it was seeking in the legal action. The suit, however, remains pending. A status conference is scheduled today before Judge Peter Meyer

“This whole thing is ludicrous,” Woodson said in an interview last week. “You bring forth all this crap with the private roads. It really bothers me that this whole thing even started. This has the potential to cost Riverhead Town taxpayers millions,” Woodson said. “At best it’s a bad precedent for other private roads in town and it has ramifications for the other towns, too,” Woodson said.

“As far as I’m concerned, if this is the way he wants to spend money, he shouldn’t be supervisor,” Woodson said.

The feeling is mutual. Walter is supporting the write-in campaign of William Van Helmond, who was the Republican committee’s designee for highway superintendent but withdrew his candidacy, citing personal reasons, only to announce the launch of a write-in campaign for the position this week.

It is an understatment to say there is no love lost between Woodson, a Democrat and Walter, a Republican.

Walter called Woodson’s refusal to plow the roads in Oak Hills “a personal vendetta” and “selfish.”

This week Walter acknowledged that the town must pay for legal representation for the highway superintendent in the Oak Hills case. He said Swenson “did the research and advised the town board it’s required to pay.” The board will adopt a resolution accordingly, Walter said.

The supervisor, who is also a lawyer, said he expects Woodson’s attorney will cross-claim seeking to invalidate the board’s action last month declaring the Oak Hills roads public highways.

“The lasting effects of that I can’t even — the case law is crazy on this subject,” Walter said. “It’s all over the place. It’s a finding of fact. That’s why I did the public hearing and had the town board make the finding of fact. If that’s invalidated,” Walter said, it could affect every other private road the town has taken in as highways by use, which Walter said could affect hundreds of homes.

Walter said he worked on the actions in 2003 and 2004 when Mark Kwasna was highway superintendent. “There were 70 or 80 roads taken in then, about 20 percent of Wading River. We did them all the same way. The town board made a finding of fact to take these roads in.”

The “finding of fact” Walter refers to is the determination, required by State Highway Law section 189, that the public uses the roads in question and has used them for a period of 10 years or more. Courts have also held that there must be a finding that the highway department kept the roads in repair. Dozens of Oak Hills residents testified in a December 2014 hearing that the town had maintained the roads in their community for many, many years — plowing, sanding and salting, patching and cleaning up storm debris.

There are about 70 private roads remaining in the Town of Riverhead, not including the 11 roads in Oak Hills, or the roads in “planned unit developments,” such as condo complexes and manufactured home communities.

Generally, the private roads — like the roads in Oak Hills — do not meet town standards for public roads, Woodson said. The way the roads are laid out, their width, the materials used to construct them, the drainage — or lack of drainage — all make them prime candidates for very costly repair if they are to become public roads.

“By law you cannot spend public funds on private roads,” Woodson said. “I’m tired of this. [Walter] is an attorney and he’s going against the state constitution. We say we don’t have any money, yet we say we can pave private roads with public funds?”

Tom Stay, Babylon public works commissione rand first vice president of the Suffolk County Highway Superintendents Association, said this week his town won’t take in private roads unless they meet town standards first with respect to drainage, curbs, sumps, etc., he said. It requires “extensive inspections” beforehand. “In Babylon we’ve gone by the books and make sure they’ve followed the specs,” Stay said.

“We would not accept a road until everything was up to town standards. It took several years. To just do it willy-nilly — if the next group comes and complains, then what?” he asked.

“If they do this [in Riverhead] it could be an issue for everyone on Long Island.