NEW SCOTLAND — The owner of a local consignment shop claims new construction is to blame for recent flooding at her store. And, while the project’s developer has been silent on the issue, the town has largely absolved him of culpability in the matter.

For the roughly two-and-half decades the Something Olde Something New shop has been located in Stonewell Plaza — the consignment shop sells second-hand clothing and accessories — it never once dealt with a water problem.

That changed in November of last year during an especially heavy rainfall, which led shop owner Karen Moses to seek $16,500 in damages from Ron Kay, the developer of the neighboring Grove at Maple Point.

The flooding caused the shop to close in the midst of the Christmas shopping season, Moses said, and outside help had to be hired for the massive clean-up.

During the March 9 town board meeting, Bruce Moses, Karen’s husband, told board members Something Olde Something New had flooded because of the ongoing construction work at the development project to the rear of the plaza, on Route 85A.

“Every time it rains, we’re on pins and needles,” he said.

Moses said runoff from the development site was being directed toward a ditch located directly behind Stonewell Plaza, and that real-estate law says water can’t be directed toward a neighbor’s property, “that’s as basic as you can get,” he said.

A town ordinance calls for fines and jail time for not complying with a stormwater management plan. Moses told The Enterprise on March 30 that the ditch was barely that. “It was just like one bite out of the backhoe,” he said. It was “absurdly inadequate” for what it was for what it was required to do.

Kay plans to put 18,000 square feet of retail space on the 3.2-acre property on Route 85A between Fred the Butcher and Stonewell Plaza, which fronts Route 85. 

Moses told the board on March 9 there had been no response “of any kind” from Kay about reimbursing his wife for the damage to her store, and that Kay had run “roughshod” over the couple. Moses told The Enterprise New Scotland appears to be “bending over backwards to accommodate” Kay. He later went further with his assessment, stating the town is “protecting Ron Kay, and that’s really ugly.”

Kay had yet to respond to Moses as of March 31. Kay did not respond to an Enterprise request for comment. 

The reason Moses was before the town board in March was that he was hoping its members could do something to help rectify the situation.

March 9 meeting 

On the day of the flood, Stonewell Plaza owner Zoe Anderson told the board, there was “a very tiny ditch” that could not handle the morning’s rainfall. 

According to collection data from Albany County’s airport, 1.16 inches of rain fell in the area on Nov. 12, 2021. There hasn’t been another flooding incident at Stonewell since the November flooding.

Anderson said Kay had been “gracious enough to get his guys back out there to make us a bigger trench to at least legally alleviate the flooding.” But she’s still looking to provide her tenants some kind of assurance that “this is not going to happen again.”

Councilman William Hennessy said Moses’s concern was something the town had to look into, adding that he’s “deeply concerned about the matter.”

The town’s engineer, Garrett Frueh, said the project site has a stormwater management plan in place and that it was approved by the town. 

Frueh said an existing swale runs along the boundary line of the two properties, and that a temporary berm installed along the Stonewell side of the Kay development property was supposed to direct water to a sediment trap at the rear of the parcel.

A swale is an excavated channel or trench. A berm is a raised bank. In stormwater management, the swale is located before the berm. 

Frueh said that, when he went to review the site, some of the swale’s “geometry” was off “from the standard blue book detail.” 

The swale hadn’t been wide enough or deep enough, according to the state’s Department of Environmental Conservation standards and specifications for erosion and sediment control. Frueh said the swale had been brought back into DEC standards within an hour of the November incident. 

There are now weekly stormwater pollution prevention plan (SWPPP) inspections, which are available to anyone via a public-records request, performed by an engineer to ensure Kay’s stormwater plan remains in compliance with what he submitted to the town, Frueh said. 

Frueh said to Moses, “It is noted that for that area to be temporary stabilized as soon as possible… That is an action item that needs to happen within three days by the contractor on site.”

Moses told The Enterprise that, within three days of the March 9 meeting, Kay had performed some erosion control by laying down cloth or fabric on the bank. There was also some ground-leveling that had taken place, he said.

“We have some level of assurance it’s not going to happen again,” Supervisor Douglas LaGrange said in a summing-up-the-situation statement during the March meeting.

But Moses pushed back on the notion that the issue was being solved, asking what if the same thing happens again, reiterating Kay’s non-responsiveness throughout the whole ordeal. Moses said Kay should be required to stabilize an embankment that “hovers above” the plaza; build a retaining wall; provide drainage; and “guarantee we won’t get flooded again.” Plans on file with the town call for a retaining wall on part of the site. 

Councilwoman Bridgit Burke told Moses, “We certainly hear you, and what you’re raising is a valid concern,” and although Frueh’s accounting of the current situation made it pretty clear the project is compliant with “the construction plan and the requirements … we’re not going to leave it there.” 

Burke said board members would take a look at the report on the incident as well as the subsequent reports submitted to the town by Kay to keep him in compliance with his stormwater-management plan. “So we’re not saying there’s nothing we can do,” she said. “And we’re not telling you it’s all going to be fine without assuring you that we are going to look further into it.”

Moses told Burke what she said was a “very positive thing,” and thanked her for saying as much.

Moses concluded, “We’re not interested in hiring lawyers and suing people. I can tell you that right now, at all.”

Even if he did want to sue Kay it would be difficult because, Moses told The Enterprise, he can’t find contact information for Kay or his insurance company, and the only way to do so is filing a lawsuit against him, which he doesn’t want to do because “it’s going to cost a fortune to sue him.”

Laying blame 

LaGrange told The Enterprise in late March that the town can’t do anything to induce or compel Kay to compensate Moses for the damage done to her store. But he also said there’s a discrepancy with where the responsibility lies. 

LaGrange said the town sent its code-enforcement officers to the plaza within 15 minutes of receiving a call about the flooding. 

The report, he said, “clearly articulates” the flooding was caused in large part by water on the Stonewell Plaza site and from the building’s roof, “and there might have been some minor contributions from the Ron Kay site.”

The Nov. 12 inspection note, co-signed by New Scotland code-enforcement officers Tim Lippert and Lance Moore, said when the two men arrived on site that day they observed inch-deep “muddy and silted” flooding inside of Something Olde Something New.

The officers’ exterior inspection found “multiple failures in the gutter system, as well as clogging from leaves and debris,” and that some downspouts had been detached “and not installed properly.”

On one section of the back of the building, LaGrange said, he saw about three-quarters of the roof had gutters but they weren’t connected to a downspout. The transition where the gutter and downspout were supposed to connect was located right over a doorway that was about two feet below ground level, LaGrange said, “which I’m sure contributed to the flooding.”

LaGrange said he wasn’t sure where the door led, but had thought he was told it went to a maintenance room adjacent to Something Olde Something New. 

During the March 9 town board meeting, Anderson, who owns Stonewell Plaza, said the water coming into the store on the day of the flood was “visually just coming in through my utility room.” Anderson conceded to the board she’s had issues with her gutters, but said, “My gutters were not flooding the store.”

About the gutter system, Moses said to The Enterprise, “We’ve been there for 25 years through hurricanes, downpours, thunderstorms, you name it; that store never flooded. The gutters have been the same there forever.” 

Nor was he aware of any other tenants in Stonewell Plaza having rainwater issues during that time period. Anderson also told the board on March 9 there’d never been a flood at Stonewell Plaza.

Moses said only one of Something Olde Something New’s neighbors, Studio 85, had been affected by November rain, but that it didn’t “cause a major issue” for the salon. “We hit the lottery,” he said of his wife’s shop receiving almost all the damage, “because we’re the low spot” among the tenants of the plaza. 

Moses called the code-enforcement officers’ Nov. 12 report “totally fake.” Because, he said, “All you have to do is look at the water … that inundated our store.” That kind of muddy water, Moses said, didn’t come from the building’s gutters. He said there were pictures taken by the town, which Moses had seen, that show the water came from the adjacent development. 

“That report is the biggest phony-baloney, lying, fake report on the planet,” Moses said. And he referred to the March 9 board meeting where Anderson said she could provide her own engineer’s report to the town that said she didn’t even need a report because it was “obvious what is going on here. It was not my roof drains.” 

Moses said it was beyond his “comprehension” that the town continued to blame the gutters for the flooding. 

 Lippert and Moore on Nov. 12 also “observed some sort of mechanical pump, discharging onto the surface, from the business abutting Something New … This is not properly connected to a Sewer or Drywell,” they wrote.

The Nov. 12 note did mention that “the temporary ditch from the adjacent work site had a small breach, allowing water from the site to contribute to the failing gutters.”

LaGrange said of the berm that breached, “Now that’s going to happen sometimes when you have a higher level of rainfall in a temporary stormwater-management situation.”

Kay, according to LaGrange, “did go over there very quickly,” and had his crew make the swale/trench deeper, which helped. LaGrange then said Kay allowed for the excess runoff from Stonewell Plaza to be re-routed onto his site “just to get it away from” the building.

LaGrange said the town has done everything it can to ensure the stormwater plan is being followed. In his opinion, the problem has been remedied, but “unfortunately, I think there’s a misconception that the flooding was all from [Kay’s] site. And that’s not the report I saw from … our code-enforcement folks,” he said.

The problem with Stonewell, LaGrange said, is there’s limited space behind the building. The Route 85A end of the building is about 13 feet from the property line while the opposite end of the plaza is about 23 feet away, using online mapping tools and parcel-location data.

The distance between the building and neighboring property line is at its most narrow on either end of the 40 feet of shopping center belonging to Something Olde Something New, where the back of the building is between 10 and 12 feet and 9 and 11 feet off of the property line.

The distance didn’t used to be a problem when the adjoining property was undeveloped because “it appear[ed] that there was some level of stormwater piped” from the plaza onto what is now the Kay development property, LaGrange said. “That’s what I’ve been told.” The stormwater piping isn’t allowed unless there’s an agreement to do so between property owners, LaGrange said.

Moses acknowledged that Stonewell had for years been pumping some of its stormwater underground and onto the adjacent parcel (the runoff now empties into the open swale between the two properties), but downplayed its significance. Anderson did not respond to a request for comment.