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Code dispute closes boat shop

Tenant complains of fumes produced during boatmaking

April 9, 2011
By NATHAN BROWN - Staff Writer ( , Adirondack Daily Enterprise

LAKE PLACID - Placid Boatworks has been unable to build boats since late December due to allegations that fumes produced during the boatmaking process was leading to problems for the tenants of a salon in the same building.

Joe Moore is the principal in Mill Pond Partners, which owns the building, and one of the owners of Placid Boatworks, which makes high-end, lightweight canoes. Holly Kostoss, who ran the River Rock Salon in that building at the time, was about a year into her three-year lease and was trying to get out of it late last year when she made the complaint. Moore's lawyer, Greg Dennin of the Lake Placid firm Dennin and Dennin, suspects this was the reason for the timing of the complaint, and says the municipal Building Department shouldn't have gotten involved.

"It's our position that the tenant had made alternate plans and was looking for a convenient way to get out of that lease, and was using the air quality issue as an excuse," Dennin said. "That was a private matter that was between my client and the tenant."

Article Photos

Joe Moore works on a boat when Placid Boatworks was still in operation last June.
(File photo — Eric Voorhis)

Moore said, in a letter to Lake Placid-North Elba Code Enforcement Officer Jim Morganson in February, that he already had a fan that put him in compliance with the ventilation requirements in state code that he was cited for breaking. Dennin alleges that Morganson intervened without properly investigating the allegations and hasn't provided proof of the conditions.

"It appears he shot from the hip," Dennin said. "My client has paid a price as a result of that."

Morganson, however, says he was merely responding to a "bonafide complaint" from Kostoss and that Moore and Dennin, instead of responding, questioned whether his office should be involved at all.

"We were just asking him to respond to the complaint," Morganson said. "Since then, it's become a thing of its own. Rather than inwardly dealing with the problem, it's becoming something else."

Morganson said the current situation was "created by the owner of that building, not the local building department or state codes."

Kostoss said in one of her emails to Morganson that fumes were "pouring into my business from the Boatworks," and that she and others were getting headaches and feeling sick to their stomachs as a result. She hired Woltner Summit Contracting, of Keene, to do air-quality testing.

Morganson sent Moore and his wife Jan Failing, who together make up Mill Pond Partners, a letter on Dec. 13, 2010, saying the air conditions in the salon were a health and fire hazard. He wrote that an engineer would have to assess the conditions and develop a plan to eliminate the hazards. Morganson cited state property maintenance code, which says a local exhaust ventilating system should be provided to remove toxic or dangerous fumes at the source.

"Your letter fails to provide your basis for determining that such conditions exist," Dennin wrote in a Dec. 15 reply letter. "Absent you providing a credible basis for your statement, my client will take no action on the matter."

Dennin wrote that Kostoss was trying to get out of her lease, and that Morganson's allegations could potentially damage Moore.

"Such a publication without any apparent investigation on your part might well rise to the reckless disregard standard for defamation action against a public official," Dennin wrote.

"I fail to understand legal advice that would tell someone to ignore the laws of the State of New York," Morganson replied in a Dec. 20 Notice of Violation, sent to Mill Pond Partners. "Additionally, you indicated to me in a phone conversation that you wanted to work with me - Mr. Dennin seems to think it is okay to challenge this office rather than seek solutions."

Morganson said that the property would be considered in violation unless his office received an accounting of conditions at the property.

Morganson had also emailed Mike Sundberg at the state Department of Environmental Conservation on Dec. 10 about the complaints. DEC reviewed the business' manufacturing procedures and determined that Placid Boatworks needed a state permit, according to DEC spokesman David Winchell. Moore applied for a permit on Feb. 7, and that application is under review.

Moore hired Atlantic Testing Laboratories to do air testing. They took samples on Jan. 13 from the unoccupied former salon and an occupied office while a boat was being built and the fan was running, and the levels of volatile compounds they found were well below the thresholds at which safety would be endangered.

Moore wrote to Morganson on Feb. 7, sending him the test results. In a four-page letter, he questioned the validity of Summit Contracting's survey and their credentials and testing methods. He also wrote he already had a fan that put him in compliance, and that he hadn't seen any proof of the air quality problems. He criticized Morganson's handling of the situation, writing that Morganson never inspected the property and didn't contact him before saying in the Dec. 13 letter that the air conditions were hazardous.

"We never acquiesced - and never would - to being bullied by a local government employee who is acting inappropriately and not doing his due dilligence," Moore said. "Now, since you've managed to set up this acrimonious situation, do you intend to continue to use our tax dollars to harass us by calling in all regulatory agencies you can think of (as you threatened to do in your Notice of Violation)?"

Moore also complained to the state Department of State's Code Enforcement and Administration division. He received a reply in February, saying that while his complaint didn't fall under the category of something DOS would investigate, he could file an appeal petition against the code enforcement action. No such petition had been filed as of Monday, April 4, according to DOS spokeswoman Lisa MacSpadden.

There has been no communication between them since. Morganson wrote Moore on Feb. 28 and again on March 11, but Moore had not replied as of this week.

Morganson said it is the building owner's responsibility to respond to a complaint, and that Moore never did.

"Ever since then, all he's done is complain about me, the office ... the procedures used, whatever," Morganson said. "He doesn't believe my office can or should be involved."

Dennin said that he had never seen any proof or particulars on the allegations, and that he thinks Morganson improperly got involved in a landlord/tenant dispute.

"Our position is that they've breached the lease," Dennin said. "They've used this issue as a facade to get from underneath the lease. Quite frankly, that wouldn't be in the public eye but for the fact that the local building enforcement officer got in the middle of it."

Moore sent Morganson a July 26, 2010 email from Kostoss which thanked Moore for creating "such an enjoyable space." Moore noted to Morganson that this was during the height of boat-building season. In a Dec. 1, 2010 letter to Kostoss, written after she had said she wanted to get out of the lease, Moore said he was working with her to address the issue of odors from "an adjoining business."

James Maswick, Kostoss' attorney, declined to comment. Kostoss moved out in late December and now runs the salon in a building on Saranac Avenue at the site of the former Charcoal Pit.

The federal Occupational Safety and Health Administration was investigating conditions at Placid Boatworks as of a few months ago, in response to these air-quality complaints. An update on that could not be obtained by press time.



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