Colonie fights to remove deceased firefighter’s business

But the case has been muddled with conflicting information about what is, or isn’t, allowed for use at the site, in addition to questions about why the business has been approved before but now is allegedly not in compliance with town codes.

The already challenging situation was made more difficult after Ed Person, the owner of the business, killed himself on his property after a zoning board of appeals meeting a year ago last October.

“His exact words were, ‘If I lose this, I lose everything,’” said Maran Person, Ed’s wife. “I’m a widow, I have two little kids, and I work a full-time job. I would like this to be settled so that I can move forward with my life.”

In 2009, Person, a Bronze Star-decorated veteran, bought a plot of land at 200 Sunset Blvd. His application to start a sealcoating business at the property was approved by the town a few months later, and for over 10 years Person ran what became a growing business, while also serving on the Rescue Squad “D” Platoon with the Albany Fire Department. 

But after years of vigorous complaints from Person’s residential neighbors about truck traffic disturbing their otherwise quiet street, the town has used his business’s growth as a reason to shut him down. 

Person received a stop-work order from the town in 2019 that stated the business approval he received in 2009 was an error “due to incorrect, inaccurate and/or incomplete information provided at the time of the application.” The letter offered no other details to explain the decision.

“One of our issues throughout this entire process was ‘What’s the problem?’” said Greg Teresi, one of the lawyers representing Empire Sealcoating. The town attorney’s office “refused to explain to us what the issues were.”

Teresi said it wasn’t until former codes enforcement officer Wayne Spenziero testified at a zoning board of appeals meeting recently that they finally learned why the business was being shut down: complaints about the hours of operation, and complaints about the types of vehicles being driven through the neighborhood.

Empire Sealcoating is about a half-mile away from houses, located at the street’s dead-end behind a locked fence. A gravel path to the business is lined with a wooded area, making it more secluded. But Empire’s trucks have to drive through the neighborhood to get to the business; it’s the only way in.

More attention was brought to the case after the Albany Permanent Professional Firefighters Association posted about it on Facebook Sept. 28, in part saying Colonie “is still trying to take the hard earned property and business Eddie created.” The union shared a post from Person’s mother, Elaine, who said she and her husband adopted Person and his two orphaned brothers from Parsons Child and Family Center four decades ago.

She said that her son’s family has had to spent more than $40,000 to fight the case. “Unfortunately for Eddie’s family, for whatever reason the town has been relentless in pursuit of this case,” Elaine Person wrote.

Zoning board of appeals member Nick Viggiani also questioned at a public meeting last week what the town’s true intentions might be in their continued effort to force the business to move to another location.

“I’m wondering if the decision from the town attorney’s office directing Wayne Spenziero to issue this (stop-work order) is arbitrary and capricious,” Viggiani said at the meeting. “Is this a true zoning issue or is it a traffic issue?”

The town, which is now being represented by private attorney David Rowley, rather than Town Attorney Mike Maguilli, is arguing that Empire Sealcoating has violated its zoning. There is another zoning board hearing scheduled for Oct. 13, where Maguilli will be testifying.

Rowley said that finding an access point that would not require driving through the neighborhood “would solve a lot of problems.”

When the town redid its zoning in 2007, the neighborhood in which Empire Sealcoating is located was deemed single-family residential use. However, the property had been the headquarters of a construction company since 1967. That property was deemed a nonconforming use, meaning a business of the same nature would be allowed to operate out of the address so long as it does not change its use or expand its buildings.

“It came to our knowledge that (Empire) has greatly expanded beyond what they were doing back in 2007,” Rowley said. “It’s very evident from reviewing the facts of this matter that they didn’t stay within the confined use that they were supposed to.”

Person’s application for a certificate of occupation from 2009 said that the business would not operate more than four days a week, and that he and his two employees would leave the building in the morning and return at the end of the day.

Today, the business operates seven days a week, including overnight on rare occasions, and has three employees who drive in and out of the neighborhood in pickup trucks once or twice a day, according to testimony. Rowley says that is enough expansion to justify revoking the certificate of occupancy.

However, Spenziero testified that as long as Person did not expand beyond what the former business owner was doing in 1967, there was nothing to prohibit him from growing his business.

In addition, Person had applied and been approved for a new zoning verification form in 2019. However, Spenziero testified that he never sent it to the next step — to be approved by the planning board — because Maguilli told him not to.

“Why did it take 10 years for this to come to fruition?” Teresi asked. “Somebody got in somebody’s ear, and now the town is saying ‘We’re going to come after you with everything we’ve got.’ What’s the next business they’re going to do this to?”

But for neighboring residents, the closure or relocation of the business is entirely appropriate. One resident presented a petition with 120 signatures on it calling for the business to cease in its current location. Also after a complaint in 2019, the state Department of Environmental Conservation issued a $960 penalty against Empire for disposing of items near a wetland area.

“We don’t like trucks coming through, the dirt all over the houses,” said neighbor Mike Fusco at a zoning meeting. “Our neighborhood is beautiful; there’s only one way in and one way out, and (Empire) affects everybody in that neighborhood. It’s for the good of one or the good of many.”

Maran Person said that she and the current business manager tried to meet with the neighbors on numerous occasions to find a solution, but few turned up to their meetings.

“This just keeps dragging out,” she said. “We are constantly trying to reach some sort of compromise with them, and they just won’t have it.”