A wide range of construction fines leveled against West New York Deputy Mayor Silvio Acosta for allegedly converting a two-family to a six-family home without proper permits in 2009 will not be pursued by the town, according to a letter sent by the town’s attorney, Gilberto Garcia, to members of the Zoning Board last month. Instead, the Department of Community Affairs (DCA), a Trenton-based office that oversees the enforcement of the state’s Uniform Construction Code, may pursue Acosta for the fines. Their enforcement depends on whether Acosta now complies with the Code, because the town’s Zoning Board formally approved the conversion in question at the end of last year.
The town’s Zoning Board approved at a Dec. 3 meeting Acosta’s request for variances to be granted to the construction project on Lincoln Place so that the conversion can become legal. However, the board ruled that the situation with the fines must be resolved before Acosta can continue the conversion of the building, which was never completed.
The fines are estimated to be well over $1 million, according to official documents, having accrued on a weekly basis since June of 2009. Garcia said in an interview that to his knowledge, Acosta has not yet made any payments on the fines, which kept accruing until December. Acosta was reached by phone last week, but deferred questions to Garcia.
“Acosta is not above the law.” – West New York Town Attorney Gilberto Garcia
“However, these penalties are currently not being enforced because of progress toward UCC Code Compliance [meaning, zoning approval],” she said in an email. “If code compliance is not achieved, the DCA has the option of putting the penalties to a collection action.”
The state can still decide to pursue all of the fines that have accrued. Until Acosta’s situation is resolved, he can’t finish construction.
Since 2009, Acosta began accruing the fines due to allegedly performing construction without obtaining the proper permits. The local approval last month legalized the conversion, but only to five units, not six. Now that he got approval, he must try to obtain the proper permits.
Zoning Board Chairman Kenneth Blane said the board encourages property owners with illegal apartments to apply for legalization, and that Acosta’s case was not judged any differently because of his role in government.
The fines, which were noted in a 2011 story by a local daily newspaper, had then amounted to a little over $500,000 since 2009, when they were issued. According to official documents obtained last week, Acosta was issued at least 26 violation notices in June of that year, all of which carried an immediate fine of $2,000, and an additional $2,000 for each week that the fines went unpaid.
Political sources have suggested that the situation seemed to be a product of a rivalry between Mayor Felix Roque and former mayor Silverio “Sal” Vega, who Roque defeated in a May 2011 election after failing to unseat him in a recall election in 2010.
During the recall effort in 2010, Acosta, who was at the time serving as a building inspector in Vega’s administration, expressed support for Roque. He was subsequently fired, allegedly because the administration had discovered the illegal unit conversion.
When Roque became mayor 2011, he hired Acosta in July as his deputy mayor and chief of staff. When news of the fines hit the newspaper a month later, both Roque and Acosta’s lawyer, Luis Alum, claimed that the fines were retribution for Acosta’s support of Roque. Furthermore, Roque said that the town’s former construction official, Thomas O’Malley, had misled him about the situation, telling him it was “all peaches and cream.”
O’Malley told the local daily newspaper at the time that Roque had never asked about the matter.
“[Roque] never made any efforts to reach out to our department,” he said.
O’Malley, who had served as the town’s construction official since 1998, was then fired by Roque last January, reportedly for alleged misuse of vacation days. Six months later, O’Malley filed an unlawful termination lawsuit against the town, Roque, and Acosta. The suit also alleged defamation, violation of the N.J. Conscientious Employee Protection Act, and made a Pierce claim – an invocation of a law which protects employees who are considered whistleblowers.
It is unclear whether the Pierce claim was related to the story about the unpaid construction fines almost a year before, in which O’Malley was quoted extensively.
According to a memo sent by O’Malley to the town’s former attorney, Daniel Horgan, 54 violations had been filed in total, most of which related to the illegal unit conversion.
According to Garcia’s letter to the zoning board, the fines are the jurisdiction of the DCA, and thus the town lacks the jurisdiction necessary to enforce them.
“As such, I believe that the fines portion of [the Zoning Board’s resolution] has been resolved and the matter should move forward as per DCA instructions,” concluded the letter.
The DCA disputed Garcia’s claim last week, saying that despite holding temporary jurisdiction over the case last year, it had since transferred the responsibility of enforcing the fines back to the town. But Garcia claimed Monday that the town was only holding jurisdiction temporarily while the Zoning Board heard Acosta’s case, and that jurisdiction has since been reclaimed by the DCA.
“DCA is correct in saying that they transferred jurisdiction back to the town, but that was only so that the Zoning Board could hear the case,” Garcia explained this week. “Since the board’s resolution was memorialized, we’ve transferred jurisdiction back to the state.”
The DCA could not confirm their jurisdiction by press time, but Garcia said that he was in possession of several e-mails from DCA officials advising him to not pursue the fines on behalf of the town. He said he could not release them due to attorney-client privilege. Still, he stressed that DCA now holds jurisdiction. Acosta has to try to get permits before he can complete construction.
“Now, if [Acosta] does not obtain the proper permits [for the unit conversion], there will be prospective fines issued by the DCA, and they, I assume, would be in charge of enforcing them,” he said.
Regarding Acosta’s position in the town’s government, Garcia said the deputy mayor will receive no special treatment.
“Acosta is not above the law,” he said.
Zoning Board Chairman Blane agreed.
“Acosta was treated just like all previous property owners that have come before the board, except regarding the specific issue of the fines,” Blane said in a phone interview.
Blane said that the unit conversion, which was first brought before the zoning board last fall, could not be resolved until some closure regarding the fines was provided.
“Members of the public had previously raised issues about the fines,” he said. “They were something that the board could not ignore.”
He explained, “The memorializing resolution contained a condition precedent that all the fines, at a federal, state or local level, had to be resolved before the board’s approval became operative.”
The DCA encompasses the Division of Codes and Standards, which enforces state building codes and assesses alleged violations. The division assumed jurisdiction over Acosta’s fines in Dec. 2011, along with construction projects on properties owned by Mayor Felix Roque and Commissioner Ruben Vargas.
In an undated memo sent to Garcia by Manuel Fernandez, the town’s new construction official, Fernandez claimed that he does not have the authority to send penalties assessed by his predecessor, O’Malley, to the town’s court because of the DCA’s jurisdiction. O’Malley, according to Garcia’s letter, never processed the fines he assessed, hence their never being heard in court.
Dean DeChiaro may be reached at firstname.lastname@example.org