James Pontillo

A local landlord appeared in County Court today to enter a not guilty plea to a four-count indictment that accuses him of falsifying records and stealing Section 8 rent money from the state.

The charges stem from a dispute, said his attorney Fred Rarick outside of court, between James Pontillo and officials in Genesee County (see statement at bottom of the story for clarification) over the proceeds from the estate of Jeanne Veronica Pontillo, the 25-year-old sister of James Pontillo who died in 2012 from a rare form of cancer.

“There’s a lot more to this than him going out and saying 'I’m going to rip off my estate,' " Rarick said.

Jeanne Pontillo was not an official business partner with James Pontillo, but she helped him with his real estate investment business, Rarick said.

“If you just look at the history of James and his sister, they worked together very well for many, many years," Rarick said. "I’ve known Jeanne and James and I saw the way they worked together. She did the office and James bought the properties and refurbished them. They had an incredible relationship.”

James Pontillo is Jeanne's sole heir. Her estate included her personal residence.

After her death, James continued to manage that property, even renting it out with, according to Rarick, the blessings of the County Treasurer's Office (see statement at bottom of the story for clarification)​.

Everything was above board, Rarick said.

James Pontillo even paid all of the taxes on his sister's property. He also paid all of the funeral expenses instead of waiting for the estate to do it, Rarick said.

“Because," Rarick said, "ultimately he said, ‘it’s all coming to me anyway.’ ”

There are other allegations related to the handling of the estate by the County, but documentation was not immediately available.

Most arraignments are uneventful but two issues came up during Pontillo's arraignment today: A dispute over whether Pontillo had previously violated his release under supervision contract and a really unusual dispute over an order of protection.

There was a prior allegation that Pontillo left the county without properly notifying Genesee Justice. He apparently went to Monroe County to deal with property he owns there. According to Rarick, the issue was amicably resolved because there was some question as to whether the proper message got to the proper person at Genesee Justice, but Pontillo had called Genesee Justice about his plans.

As for the order of protection, typically, a temporary order of protection is issued to a defendant barring contact or harassment by the defendant of the crime victim, persons making an allegation or key witnesses. 

District Attorney Lawrence Friedman tried to make just that point to Interim Judge Micheal Pietruszka today when a disagreement arose over an order barring Pontillo's contact with County Treasurer Scott German.

Pietruska asked Friedman if he anticipated any trouble and Friedman said he doesn't typically ask for orders of protection because he anticipates trouble, but because he wants to ensure there isn't a problem.

The request for an order left the territory of ordinary when Rarick noted that because of the ongoing estate case, Pontillo might have contact with German. Friedman said he wasn't aware of any example of anybody being arrested because they had contact with a person during normal court proceedings.

Pietruszka amended the order to ensure it didn't cover legal proceedings and Friedman expressed concern that the language was too vague.

At that point, Pietruszka plopped a big book of statutes on his desk and started thumbing through it and then read a passage covering the need to show cause for an order of protection. He then pressed Friedman to show cause.

Friedman said he didn't come prepared to argue that point because of the routine nature of an order of protection, so he didn't have the specifics in front of him, but there had been, he said, communication between Pontillo and German that would be of a concern.

Rarick then objected to the order, noting that the DA had failed to show cause. Pietruszka asked for the signed copy of the order back, said he was vacating it and ripped it up.

Pontillo was released under supervision of Genesee Justice.  

Previously: Landlord accused of falsely claiming to own a dwelling in Batavia (we've covered James Pontillo extensively over the years and this story contains links to most of that prior coverage).

Photo: File photo of James Pontillo at his property in Stafford.

UPDATE: 4:50 p.m.: We emailed Scott German to give him a chance to respond. Here is his statement:

I will not comment on pending litigation. This litigation has nothing to do with the county, other county officials, or county attorney’s. The only reason I am involved is because I am the county treasurer and according to NYS law, when surrogates court determines there is no one qualified to serve as administrator of an estate, the surrogate names the county treasurer; I don’t get a choice. Apparently, at the time, the court determined no one was qualified to serve and I was appointed.

James Pontillo is doing some restoration work on one of properties, in this case, on Swan Street, and he dug up this slab of stamped concrete inscribed for J. McBride.

Pontillo thinks this was a marker for John McBride, a contractor or engineer in the area in the late 19th and early 20th centuries, and that the house on South Swan was once his residence.

The house was built in the 1880s or 1890s, Pontillo thinks.

There was a John McBride from Batavia born in 1862 who died in 1937. Online records indicate, though not conclusively, his sons were John McBride, born in 1892, and a Robert McBride, born in 1882. This McBride family does not appear to be related to the family that ran McBride Steel Plate Construction Company in Batavia for many decades, and whose patriarch was an immigrant from Ireland.

Pontillo also uncovered the remains of a granite hitching post.

He isn't quite sure what to do with this piece.He isn't sure if one of the historical agencies would be interested in it.

The Town of Stafford contracted with an engineer to inspect the old Odd Fellows Building this morning and owner James Pontillo feared the goal of the inspection was to find a reason to condemn the building.

If that was the goal, that wasn't the result.

Engineer Dennis Halstead looked over nearly every inch of the building and told Pontillo at the end that he didn't see evidence of slipshod work.

Pontillo has been working on a restoration project with the building since he assumed ownership in 2010. It's been a lot of work, and there is a lot of work still to do, and Pontillo feels like the town has tried to impede his progress every step of the way.

Last year, Pontillo and the town fought over a fence he built along his western property line. The case eventually went to court and Pontillo prevailed.

Today's tour started in the first-floor business units, where once, most recently, there was a tattoo parlor, and the former location of the Stafford Trading Post (which, back in the day, was the town's post office, general store and armory.

Pontillo explained that he has installed a firewall around the kitchen, where one didn't exist before.

In the basement, Halstead looked at the electrical paneling, which has all been replaced, and the new heating units, which Halstead said looked like good, quality work.

The third-floor apartments all looked clean and well maintained, with a new heating system. Pontillo improved the ingress/egress to one of the apartments by removing a portion of the stage riser that partially blocked the entrance, a remnant of the Odd Fellows Temple days. 

That apartment has a raised floor (the old stage) for its living room.

The third apartment is a studio and Pontillo has nearly completed refurbishing it, with new walls, new door frames, new kitchenette and a completely renovated bathroom.  

In this room, one of the town inspector's, Gene Sinclair, told a reporter that it looked like Pontillo was doing a good job with the renovations.

"If only he would get permits for his work first," he said.

When told about the remark later, Pontillo chuckled and said, "If only it were that easy."

At the end of the tour, Halstead told Pontillo some of what would be in his report. Even though the building has had businesses, including a food business, on the first floor, and apartments on the second floor, for generations, it still needs some fire-code-related improvements. Either there needs to be a two-hour burn barrier between the second and third floors or Pontillo needs to install sprinklers, perhaps only over the kitchen part.

Pontillo said he intends to install sprinklers in the stairwell leading to the second-floor apartments, as well (if he does, he may no longer need the fire escape on the west side of the building).  

There are no other major issues that immediately stand out, Halstead said, but his report will be a series of recommendations with options for Pontillo to consider. He recommended Pontillo go over that with his engineer and that the engineer draw up a plan, put his seal on it, and supply it to the town. Halstead said he would also be happy to talk with Pontillo's engineer.

Previously:

• Fences, and more, divide business neighbors in Stafford
• Reward offered for illegal dumping of garbage bags in Stafford
• Owner of one of Stafford's historic buildings says neighbor preventing restoration work
• Pontillo needs to show some respect, and insurance, if he wants permission to go on property, owner's son says
• Stafford: The fence that divides a community
• Stafford ZBA to meet tonight on Pontillo fence issue
• The Sunlight Dialogues: Stafford ZBA denies variance for too-high fence
• Stafford ZBA's denial of fence variance reversed on appeal

The Stafford Zoning Board of Appeals decision that denied James Pontillo a variance for a fence behind the former Odd Fellows Hall, was reversed in state Supreme Court on Friday.

The Hon. Mark J. Grisanti said the ZBA’s September decision was “arbitrary and capricious.”

Grisanti’s decision followed an hour-long hearing at the Genesee County Courthouse.

Pontillo’s attorney, Peter J. Sorgi, said he was gratified by the judge’s decision.

“But I’m incredibly frustrated that it has taken this much time and money,” Sorgi said. “The money he spent on this should have been put into that building.

“The town would have a really nice building instead of paying lawyers and doing all this nonsense,” he added.

The ruling apparently ends a two-year tussle over the fence.

Pontillo bought the historic building at 6177 Main Road in 2010. In 2013, he built a wood fence along the west property line behind the building.

The town issued a stop-work order, and the matter ended up in court. A town judge ordered the fence removed, and that decision was upheld on appeal by Superior Court Judge Robert C. Noonan.

Pontillo’s request for an area variance was denied by the town ZBA on Sept. 15.

On Friday, Grisanti said the ZBA considered the harm the fence would cause. But there is no evidence the board weighed that harm against the benefits to Pontillo, he said.

“(The decision) seems to be a violation, in a sense of their own procedure,” Grisanti said.

The town could appeal the decision. Sorgi said an appeal would cost “a minimum of $10,000” and take a year to reach a courtroom.

“If they want to throw more money away on this, they have that right,” Sorgi said.

Town Attorney Kevin Earl said he would not recommend an appeal.

“I believe this will end it,” Earl said. “It’s up to the judge to make a determination. He made it, and we have to live with it.”

Pontillo was joined in court by about a half-dozen friends and supporters. The group gathered afterward at Coffee Culture.

Pontillo wasn’t in a celebratory mood.

“In a way, they won,” he said.

The legal case has prevented him from finishing work on the fence, a job that will now not resume until the spring.

Also postponed, was work on the building’s exterior, lot paving and roof replacement.

“Because of this delay I really had no desire to do anything more with the building until I saw that I could prevail and move forward with the process,” Pontillo said.

Still, he said, he feels no regret about buying the building.

“I still believe there’s potential there,” Pontillo said. “And I still believe I get good support from the community.”

The difference between the six-foot limit on a fence in the Town of Stafford and the actual height -- whatever it is -- of the fence James Pontillo built on his property is enough to reduce the sunlight falling on the neighboring building, according to Stafford's Zoning Board of Appeals.

That's based on science, said Chairwoman Crista Boldt.

Sort of.

"If we had a scientist come in and measure the amount of daylight that's given to that property next door it would make a difference, just like people in Wyoming when they measured when they put wind towers in Warsaw and they studied how the flicker effect would affect the house, because of the rotation of the Earth and the sun orbiting the Earth it would affect it," Boldt said, "the amount of light."

The reduction of light -- however much that might scientifically be -- would create an "undesirable change," according to ZBA board members.

For that, and other reasons we'll get to, the ZBA voted unanimously to deny Pontillo an area variance for his fence.

An area variance is a tool in New York code enforcement guidelines that gives local officials the ability to allow property owners to make physical changes to structures and property that might otherwise be prohibited by law.

There are five criteria zoning boards use when deciding whether to grant an area variance.

They are:

Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance. 

In this case, the ZBA found the extra foot, two feet or three feet -- depending on who is doing the measuring and where -- would mean less light would reach the neighboring property.

Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance. 

Yes, the board found Pontillo could build a six-foot-high fence. That would block people in cars and most people standing from seeing over the fence. As for Pontillo's stated goal of building a deck on the back of his building, which is part of the historic Four Corners District, well, Pontillo hasn't even applied for a permit for it, so Boldt indicated she wasn't interested in considering it as a criterion on this point.

Whether the requested area variance is substantial.

As a matter of measurement then -- depending, again, on who is doing the measuring and where --  the extra height, as a matter of percentages, is from 15 to 30 feet higher than the six-foot fence Pontillo could build without a variance.

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district.

James Balonek piped up on this one and said yes, because of the sunlight and the airflow.

The reason for denial Boldt wrote down on the ZBA's form was because granting a variance could impact future decisions of the board and reduce the ability of the code enforcement officer to enforce the law.

Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

Boldt read the objection and immediately said it was because Pontillo built the fence. Then she wanted to know from the code enforcement officers when they issued a stop-work order to Pontillo. That led to a discussion with Pontillo and his attorney about the timeline of events.

According to attorney Peter J. Sorgi, Pontillo sought a variance for a fence, was denied, decided to build a different fence and was told by town officials that a fence of six feet or less didn't require approval or permits, so that's what Pontillo set out to build. When the fence, which is in plain view of Town Hall, was nearly complete, Pontillo received a stop-work order and immediately complied.

That's a set of facts nobody in the room explicitly disputed.

Boldt wrote on the ZBA form that the difficulty was self-created.

When Boldt first started going through the criteria, Balonek raised the first objection and said the requested variance would create an undesirable change because it goes against code.

Sorgi pointed out, "that's why you have variances." By that definition, he said, no variance would ever be granted.

Boldt told Sorgi, "We've been trained that it's extremely hard to get a variance."

The Town of Stafford Zoning Board of Appeals meets tonight to discuss the fence James Pontillo erected on his property.

The board's regularly scheduled meetings are for the third Monday of the month. This month, that should have been Sept. 21, but we've been informed the meeting has been moved to 7 o'clock tonight.

Related: after last night's Stafford Town Board meeting, the board passed a resolution authorizing town attorney Kevin Earl to take all steps necessary to enforce code compliance issues against James Pontillo. The resolution retroactively approves any actions taken by Earl.

Here's a PDF of the full resolution.

Crista Boldt

Pop quiz: You're a code enforcement officer and your job is to measure a fence to see if it is less than six feet high and therefore conforms to the local building code. Do you measure from the side of the fence of the property owner who built the fence, or do you measure from the other side?

In Stafford, Code Enforcement Officer Lester Mullen measured from the non-owner side. That was his solution to a question that apparently has no correct answer under existing town law, but has unleashed a protracted legal battle that has consumed at least $10,000 of taxpayer money and caused James Pontillo to shell out nearly $10,000 in attorneys fees.

The two adjoining properties are different grades, accounting for a variance in fence height from one side to the other.

The issue of the fence has morphed into a soap opera of sorts and still has no resolution; though, it was hashed out at great length at a public hearing before the zoning board of appeals on Monday night.

Peter J. Sorgi, the attorney for Pontillo, explained it this way: His client decided to build a fence two years ago between his property, the ancient and former Odd Fellows Hall on Stafford's historic four corners at Main Road and Morganville Road, and the property to the west, where Tom Englerth erected a steel-roofed building that is currently leased by the Stafford Trading Post and a hair salon.

The feud between Pontillo and Englerth is well documented. It's genesis seems to be Pontillo's successful bid to buy the property at 6177 Main Road in 2010 for $40,700. His purchase of the building was applauded by members of the Stafford Historical Society and Pontillo promised to clean it up, restore it and return it to a useful commercial and residential property. There was concern at the time that Englerth wanted to move or raze the building and open a gas station at the location.

Over the years, there have been numerous police calls to the location as Pontillo and Englerth have scrapped over access to Englerth's property for high lifts for roof workers, snow removal, garbage dumping and property lines.

The fence issue wound up in court, and a Stafford judge ordered the fence removed. On appeal, Robert C. Noonan, in his capacity as Superior Court judge, upheld the ruling that the fence was out of compliance with local ordinance -- supporting Mullen's measurements -- but reversed the lower court's order that the fence be removed.

Pontillo was ordered to pay a $2,500 fine, but the fence still stands and Pontillo is seeking an area variance for an eight-foot-tall fence, though he unofficially contends the fence, measured on his side of the property line, is only six feet tall.

The meeting Monday night can only be described as contentious, with Pontillo already seeming to have scored some demerits with Crista Boldt, chairwoman of the ZBA, for blaming the town at last week's County Planning Board meeting for his application lacking surveys, plans and photos. Pontillo claimed to have provided those items to the town and was surprised the town hadn't passed along those exhibits.

"I don't want untrue things getting said when you go to other boards," Boldt said. "It reflects poorly on the town."

Sorgi explained Pontillo's remarks to the county as a misunderstanding. The Town of Stafford doesn't require those exhibits, but the county board wanted to review those details. Pontillo, he said, had at one time or another provided the town with all of those materials, but not part of this specific application, because the town didn't require those items be attached to the application.

Sorgi then provided a brief history lesson on the local planning process, which only began in New York about 100 years ago.

There are court cases that outline the role of a zoning board, he said, which is to act as a safety valve to help interpret zoning ordinances. It's role in considering a variance was to balance the benefits to the property owner against the health, safety and welfare of the local community.

James Pontillo

He provided, from NYS code, the five criteria the board must consider and explained how all five criteria weigh in favor of his client.

The benefits Pontillo seeks, Sorgi said, is to hide what he described as an unsightly mess next door, from exposed dumpsters to an unkempt back lawn and junk strewn about (when we look at the property after the meeting, the lawn had been cut within the past two weeks and there were only a few loose items in the yard).

Town Attorney Kevin Earl said a six-foot fence accomplishes the same goal, but Sorgi said not if Pontillo does as planned and builds a back deck on the property, which will be used for dining and drinking.

The fence also prevents snow from being piled up against the old building and makes use of the westside fire escape safer.

The board must consider, Sorgi said, whether the change hurts the character of the neighborhood or is a detriment to nearby properties. He said the fence does no harm and with the 80-foot flower box Pontillo has installed, actually enhances the neighborhood.

The board must consider whether the applicant has a feasible alternative, and Sorgi said there is none.

The request for a variance must be substantial, according to state law, and since a court has ruled the fence is too high, the variance is necessary to achieve Pontillo's desired benefits.

The board must consider whether the variance, if granted, will adversely impact the physical or environmental conditions of the neighborhood.

The answer, Sorgi, said is no.

Finally, the board must consider whether the need for the variance is the result of an issue self-created by the applicant. It wasn't, Sorgi said, because the town doesn't require any sort of permit for a six-foot-high fence and since his client thought, by his own measurements, he was building a six-foot-high fence, there was no official method to confirm with the town that the fence was within the required height. The town didn't object to the fence, Sorgi said, until it was nearly completed.

The only speakers at the public hearing, five altogether and all local residents, each supported Pontillo's variance request.

During the course of the presentation, there were tense moments.

Sorgi took issue with Mullen declining to speak on the record, in front of the press and public, about his position on the variance request. Mullen specifically cited the presence of news media as his reason for not speaking.

When Sorgi left out "physical" to go with "environmental" on the criteria for the board to consider, Boldt called him on it.

Sorgi raised the issue of a fence on the other side of Englerth's property, built by Englerth, that exceeds the six-foot height limit, but Englerth is apparently not facing the same level of scrutiny over that fence, Sorgi said, as his client.

Pontillo accused Englerth of trying to fudge the property line before his fence was built by moving a surveyor's stake at the back of the property by as much as six feet. That dispute led to an accusation of trespassing by Englerth and one of the multiple visits by troopers to mitigate tensions over the past couple of years.

Sorgi tossed a couple of barbs Attorney Earl's way, expressing disdain that Earl threatened to have Pontillo arrested if he didn't take the fence down. Earl argued that isn't exactly what he said, that he merely mentioned that a consequence of failure to abide by zoning law could result in a jail sentence, which he has sought before in other jurisdictions, where he has also served as a municipal attorney, for similar violations. It's not an abnormal response to zoning violations by municipal attorneys.

Sorgi also peppered Earl, whom he accused of chasing billable hours, with questions about why he was even at the meeting: Was he there as a private citizen or as the town's attorney? Earl said Town Supervisor Robert Clement asked him to be there, and Sorgi said that Clement, under state law, didn't have the authority to ask Earl to represent the town board at the meeting, that it took a vote of the board for such an action.

As a result of the meeting, both attorneys are now on record on two key points:

• Earl said "nobody is trying to get the fence taken down." The town officially has no position on how the ZBA should vote on the variance request.
• Sorgi said his client is willing to stipulate for the sake of the variance application that the fence is eight feet tall.

In the midst of this rancor, Sorgi reminded the ZBA that its job was to weigh the evidence without consideration for personalities or past history.

"This isn't about James Pontillo or whether you like him or whether you like this neighbor more than that neighbor," Sorgi said. "This is about whether the request benefits the applicant without doing harm to the health, safety and welfare of the community. That's it. Whether you like somebody isn't the question. It's a simple test."

The ZBA is scheduled to vote on the application for a variance at its September meeting.

Previously:

• Reward offered for illegal dumping of garbage bags in Stafford
• Fences, and more, divide business neighbors in Stafford
• Owner of one of Stafford's historic buildings says neighbor preventing restoration work
• Pontillo needs to show some respect, and insurance, if he wants permission to go on property, owner's son says

Attorney Peter Sorgi

It's a beautiful day. Maybe one of the last great days to get outdoor projects done before winter hits. At least that's what James Pontillo had in mind when he pulled a high lift into the parking lot of Stafford Trading Post (he says with the shop owner's permission) so he could work on his building at the corner of Main and Morganville roads.

By now, today's roof work and gutter repair would be done, Pontillo said, if not for the trespassing complaint leveled at him by neighboring property owner Tom Englerth.

A deputy has been to the property twice today. The first time after Pontillo parked the high lift in the parking lot, the second time after he parked it in front of the parking lot. Pontillo contends that area is owned by the State of New York, not Englerth. Englerth apparently contends he controls it.

Englerth was no longer on site by the time The Batavian arrived this afternoon.

Pontillo half expected to be arrested and charged with trespassing.

Deputy Brad Mazur told Pontillo it's a complex situation given the nature of the property and the state highway right-of-way issue. He said he would need to consult with the District Attorney's Office.

Meanwhile, Pontillo has a storm drain he is worried might fall and hurt somebody, and a roof he wants to finish replacing on an arguably historically significant building and he's being prevented, he said, from getting the work done.

Previously: Fences, and more, divide business neighbors in Stafford