Just as the Greenport village board takes the next step in ongoing litigation with a local oyster farmer, Mike Osinski said the board’s decision to commence an appeal is “frustrating” and the village is “crossing the line”.
On Monday, the Greenport Village Board voted unanimously to authorize the village to appeal the Supreme Court decision rendered in the matter of Osinksi vs. the Village of Greenport.
“You lost the lawsuit,” village resident Bill Swiskey told the village board, at the meeting.
Village attorney Joe Prokop said the village had six months to appeal decision, rendered by Judge Peter Mayer on August 12, 2014. “We did not lose the case,” Prokop said.
“I have a copy of the decision,” Swiskey said. “You lost big time.”
Osinksi, the owner of Widow’s Hole Oyster Farm in Greenport, said he commenced an Article 78, or a legal proceeding looking to overturn a determination by a municipal board, after the village board approved a resolution with a “condition” on December 13, 2013, that he said restricted his business. Osinski had applied to construct a fixed dock and applied for a wetlands permit.
The court ultimately ruled in Osinski’s favor, stating, “absent any evidence the proposed project may have adverse environmental consequences, the board’s determination to issue the wetlands permit with a condition limiting petitioner’s ‘commercial activities’ and making it subject to further review upon ‘any alteration by the of Army Corps of Engineers’ is arbitrary and capricious. . .Accordingly, the petition is granted and the portion of the wetlands permit limiting petitioner’s ‘commercial activities’ and making the application subject to further review depending on ‘any alteration’ by the Army Corp of Engineers is annulled.”
Of the appeal, Osinski said it’s “just more harassment. It’s frustrating, it’s expensive, and if it’s frivolous, with no grounds, they’re crossing the line here.”
Prokop did not respond to a request for further comment.
In May, in an emotional outpouring of outrage and disbelief during a Greenport village board meeting at the Third Street Firehouse, the public turned out in droves to support the local oyster farmers and plead with the board not to reschedule a public hearing on an application for their new dock.
Despite the overwhelming protest, the village board voted unanimously to schedule a new public hearing on a wetlands permit application for Osinski’s Widows Hole Oyster Co.
According to the village board the application, which was originally approved by the board on Dec. 23, needed a rehearing due to a “an incorrect description of the project in the public notice for the prior public hearing and resolution adopted for that application, with the application being made to construct a 140′ pier with a 26′ by 26′ square work platform at the end of the pier, into Greenport Harbor at the property”, located at 307 Flint Street.
The first hearing notice called it a 26 square foot work platform, Mayor David Nyce said.
Attorney Michele Pincus, attorney for the Osinskis, said, during the village meeting, that the board “has absolutely no power to reschedule a hearing that took place close to five months ago.”
Six months had passed since the hearing was originally noticed, she said. “There are no grounds for this board to reschedule,” she said. Aquaculture, she added, is protected by New York State law.
At the original hearing, held on Nov. 25, residents spoke out for over an hour for and against the proposed dock. “Not a single resident spoke about ill effects on the wetlands or the size of the work area,” Pincus said. “The decision was unanimously approved.”
When the village failed to grant a building permit for the work to proceed, Osinski said no one on the board would answer his calls, prompting him commence litigation.
Pincus added that the plans on file indicate the correct size of the proposed work area and said anyone could have checked the plans.
Nyce said Village Attorney Joseph Prokop was not present, leaving the board “at a disadvantage,” but said no building permit could be issued because legal action had been commenced against the village; he added that the “improper notice” was a “clerical error,” and if the Osinskis had build at 26′ by 26′ foot platform they would have been out of compliance.
“We’re not looking to cause anyone any additional harm or grief,” Nyce said. He said he anticipated after the second hearing, the outcome would be the same and the resolution approved. “But we can’t issue a permit as long as there is legal action against the village by the Osinskis. We are not looking to hinder the Osinskis.”
Pincus said despite phone calls, it was the first time she’d heard why the building permit had not been granted.
A long line of residents stepped up in support of the Osinskis. Steve Clarke, a Carpenter Street ship builder, said raising oysters is not an easy task. “Mike Osinksi has years involved with this,” he said. “I urge you to do whatever you can do to get Mike growing his oysters the way he wants it. Everyone is in agreement. My suggestion is to make it happen.”
Nyce said the board supported Osinski but in today’s litigious world, building something that was improperly noticed could trigger litigation.
“It’s appalling to me,” said Sarah McNamara, a neighbor of the Osinskis. “We bought our home because we wanted to live in a village where people lived and worked together. You’re being disingenuous to say this has no impact on his business.”
McNamara singled out Trustee Julia Robins in open session and said the issue was more than just a clerical glitch but instead, had to do with a disgruntled neighbor. “It’s appalling to me that one trustee could turn this into something it shouldn’t have been. You were listening to a woman across the creek, who is harassing decent people who deserve to make a living.” McNamara said a neighbor had been taking pictures of the Osinskis with a telephoto lens.
Robins said she planned to vote in support of the application and said she was in favor of an expedited rehearing to help move the project forward.
One by one, 5th Street locals filed up to the podium to support Osinski.
“Let’s hope this hearing is just to correct a clerical error and then we can all move on,” said Karen Rivara, a fellow Oyster farmer from Southold who is also the president of the Long Island Farm Bureau’s board of directors; she added that oyster farms have no smell and that the process of raising oysters is “hard work.”
The Osinskis help bring business to the village, others said.
Caroline Waloski asked if the hearing could be held any earlier than the suggested June 23, to expedite the process. “We see ourselves as a working waterfront. We should help people in aquaculture,” she said.
Neighbor Laura McCarthy, who lives on 4th Street, said she wanted to point out that the first hearing had been a public meeting and the plans, public record. She said the plans had been publicly discussed and the public was aware of the specifics of the plans.
“It’s a technicality and you are holding up an oyster grower for quite a while.” If there was a clerical error, “You should have said so in January or February. Not in May. I think Mr. Osinski has community support.”
Trustee David Murray said the Osinskis have board support, too. Nyce reiterated that issuing a permit could not be done due to the legal action.
When Isabel Osinski, Mike Osinski’s wife, called out that the legal action came after the permit had not been issued, Nyce said, “If you are going to interrupt, I’m going to ask you to leave.”
“Throw me out,” she said. “What about my First Amendment rights?”
He added that the clerical error had not been discovered until last month. “We are legally bound to only authorize what was in the public hearing notice,” he said.
Osinksi then tried to comment from the audience; Nyce told him he was out of order.
“The fact that there is a clerical error is a shame,” said neighbor Paul David. “I’m glad you guys are going to extend the olive branch, and it sounds like you will support his position. But time is of the essence.”
“To discover a clerical error in May, you are doing a disservice to the people you represent,” resident John Saladino said. “When people read this in the news, they won’t believe it. Everyone here at the first hearing understood exactly what was happening. Everybody was on the same page. Prior to the lawsuit, you chose to hold up his building permit — for what reason?”
Nyce said again that down the road, if the hearing was improperly noticed, the dock would not be legal.
“Where do you think the bigger lawsuit is going to be, that the taxpayers are going to be responsible for?” Saladino asked, pointing out that there was an actual lawsuit in progress. “This is an actual danger. You’re worried about a perceived lawsuit as opposed to one that was actually caused by error.”
“We are required to follow the law,” Nyce said.
“This guy shouldn’t have to put his business on hold,” Saladino added. “Somebody decided, ‘We are not going to issue a building permit.’”
Resident Bill Swiskey agreed. “This has nothing to do with the dock. It has to do with something else. Her mistake is costing Mr. Osinksi maybe $30,000 in delays. Is the village going to pay for that? Is the person whose mistake it was going to be disciplined?”
When Osinski tried to comment, Nyce told him he was out of order.
Osinski stepped up to the podium. “I’m a taxpayer,” he said.
Osinski said at the hearing, there was no question about the size of the platform. He said no one could challenge the board’s earlier approval due to the statue of limitations.
Next, Osinksi said despite repeated calls and letters, and questions about a “vague” verbal condition the board had put on his business operation, he got no answers.
“You refused to discuss it. No one would discuss it with me. That’s why I went to court.”
He added, “Six months later, you find a transposition of two words by the clerk? You guys have to take some responsibility. This is a small village, we need to work together.”
Osinski said he and his wife and children have spent 14 years working day and night on the waterfront. “Now you’re jerking us around and I don’t appreciate it.”
Zoning board of appeals chair Doug Moore said if the board was compelled by a legal technicality to hold another hearing, he hoped the process would be expedited.
Isabel Osinksi stood at the podium, moved by emotion.
Despite having “endured” a long public hearing the first time, with “people telling you, ‘We want you gone”, Osinski said she did not speak at that meeting. “It’s morally wrong to get up and speak about your neighbors,” she said. She invited the board to come and see their home, not to “rely on photographs.”
The disgruntled neighbor, she said, photographs the Osinskis and their children while they are working, “trying to harvest oysters in 20 to 30 degrees on an unstable dock.”
Scheduling a new hearing due to the “transposition of two words,” she said, is “a mockery of the system. I’m raising good for people that’s healthy, and helping the environment. What do you do when the community turns around and spits in your face?”
Detractors, she said, have said, “You’re skanky, get out of here,” and told her it’s the reason why nearby homes could not be sold when meanwhile, homes have sold for $1 million nearby.
“I think there’s a bigger issue here. It’s unconscionable. It’s almost inhumane, that you can drag us through dirt, scoff at us.”
The situation had the family so emotionally distraught that they had no Christmas tree last year, Osinski said. “It’s destroying our happiness.”
Oyster farming is not easy, she said. “You’re lucky if you get 250,000 oysters. After the hurricane we lost millions but we didn’t go crying to FEMA. It was nature. But this is a venal attack by a real estate agent on a family business and it’s heartbreaking.”
She added, “We would never have gone to a lawyer if you had just talked to us. The word is shunning. You shunned us.”
Her husband, Osinski said, was a former trustee and he, too, was shunned. “What you are doing is ruthless. It’s ridiculous. And it’s heartbreaking.”
The board agreed that they are in support of the Osinskis. Trustree Mary Bess Phillips asked if Osinski was still farming oysters; he said he was.
The board held a new hearing and granted the permit.
