A photo submitted as evidence in a Chautauqua County lawsuit filed against an Ellery property owner is pictured. The green lines, according to the county, are where sewer lines are located. County officials argue buildings built over the sewer lines and easement areas constitute a potential public health issue.
Property owners sued earlier this year by the Chautauqua County on behalf of the Center Chautauqua Lake Sewer District have filed a counterclaim against the county.
In late September, attorney Henry Zomerfeld of Hodgson Russ filed an answer in the county’s lawsuit against the Kurtz family, who owns a property on Broadway Road in the town of Ellery. County officials alleged in a lawsuit filed in June that a boathouse built on the property infringes on an easement that allows the county to maintain sewer lines that run under the boathouse.
The county, on behalf of the sewer district, seeks to impose a monetary penalty against the property owners, order the property owners to tear down the boathouse and additions to their property that county officials violate an existing property easement, prohibit the property owners from building or maintaining structures over the sewer mains or in the easement area and declare the boathouse and home additions a public nuisance.
Zomerfeld filed an answer to the lawsuit that includes a counterclaim asking the court to declare the easement lacks a specific legal description and is impermissibly vague and unenforceable by the county, declares that the easement provides for the rights and obligations of both the family and the county, with those rights unable to be changed by legislative action; and declare that the easement does not prohibit building the boathouse.
“Finding that the Sewer Law effectuates a regulatory taking in violation of Fifth and Fourteenth Amendments of the U.S. Constitution and New York State Constitution, and awarding defendants a monetary judgment in an amount to be determined at trial,” the counterclaim states.
Attorney Charles Grieco, representing the county, wrote in his complaint that the owners of 5581 Broadway Road, Ellery, built a large pool house over two sewer lines and land that had been granted an easement for maintenance of the sewer lines without the Center Chautauqua Lake Sewer District’s permission. The easement was granted in 1977, according to the lawsuit, to lay, construct, operate, alter, repair, remove and replace sewage pipes and allegedly does not reserve the right of the property owner to build over the easement area or any subsequently constructed sewer pipes.
The sewer mains are connected to the Center Chautauqua Lake Sewer District’s wastewater treatment plant, which serves 200 parcels in Maple Springs and Midway State Park. The county states the system is part of a vacuum system that makes it difficult to relocate the pipes and requires access to maintain and repair the system if it malfunctions.
“Given the proximity to Chautauqua Lake, the district’s facilities are vital in protecting the lake from contamination due to raw sewage and the district spends approximately $2,600,000 annually to operate and maintain its facilities,” the county’s lawsuit states.
Sewer district officials say they contacted Ellery’s code enforcement officer, who issued a stop work order in June 2022. Construction continued in 2022 and 2023 until, in April 2024, the sewer district issued a show cause order and a cease and desist order while assessing a $25,000 penalty under Sewer Use Law Section 1105. The property owners were also ordered to remove the structures within 30 days. On May 2, the property owners submitted a petition challenging the district’s order and argued their case at a June hearing. The sewer board upheld the April order in a unanimous vote in June.
“The district’s inability to immediately access these segments of the sewer mains, due to the location of the encroaching structures, threatens the operation of the sewer facilities and presents an environmental concern and could cause or exacerbate the flow of raw sewage into Chautauqua Lake,” the lawsuit states. “If and when an operational or maintenance issue were to arise with the sewer mains traversing defendants’ property, the encroaching structures would need to be removed in their entirety before the district could attempt to fix the problem. Given the size and scale of the encroaching structures, this would take a considerable amount of time and would jeopardize the district’s ability to timely address problems and ensure safe and efficient operation of the sewer system. Additionally, any delay could result in, or exacerbate, sewage backup in nearby homes that are similarly services by the sewer pipelines in question and create a public health emergency.”