Porter's Pub owner to air grievances with city over February flooding in person

City workers and equipment doing earthwork at 13-17 Hanson St. in Rochester in September. (Courtesy image)

ROCHESTER - Porter's Pub owner Jim Hanley said he expects to air his grievances with the city regarding recent flooding at his restaurant at the next Public Works and Buildings Committee meeting.
Hanley told The Rochester Voice on Thursday that City Councilor John Larochelle stopped by to see him earlier this week to see if he could aid him in any way, including trying to get him on the agenda for the next committee meeting, which is scheduled for March 17 at 7 p.m.
Hanley says the city's elevation of the adjacent lot at 13-17 Hanson St. caused his business to flood on Feb. 10. He said the cleanup has cost him thousands of dollars.
Hanley said water poured in through a small bulkhead on the side of the building nearest North Main Street, leaving his basement with about a half inch of water.
In response to a Right to Know request seeking information on the city's elevation of the lot, City attorney Terence O'Rourke said there were no documents regarding the September site work, but Tuesday he provided The Voice with a narrative of how the idea came about.
"The City's work at 13 Hanson Street is the vision of the City's Economic Development Department," O'Rourke wrote. "Once approved by the City Council, Economic Development Director Mike Scala discussed the work with Director of City Services Peter Nourse. In turn, Nourse held in person meetings with Ken Henderson, Municipal Service Supervisor - Highway and Fleet Maintenance, to discuss planning and completion of the work. In regards to the physical conduct of the City's work at 13 Hanson Street, the City made use of City staff on regular staff time, used City equipment, and City materials.
"The City did not account for this time, equipment use, or material separately from all other work conducted during the staff's duty days. In other words, the City cannot express in numeric terms the amount of time or resources used on this work. The City can state definitively that it did not hire additional workers, buy additional equipment, or buy additional materials to complete the work at 13 Hanson Street. In sum, no records exist in fulfillment of your Right to Know request."
Right to Know requests apply to any and all documents, including digital correspondence. O'Rourke claims there are none.
He said the last City Council approved the lease and the improvements to turn it into a park in nonpublic session and that the minutes of that meeting remain sealed.
Hanley said he spent about $2,500 of his own money to pay employees and other workers to help remove the water, and then reached out to the city around Feb. 15 to see if they were going to help him with the costs since their actions caused the flooding.
He said he and past occupants of the building had never seen flooding before this month.
The city's insurance people did meet with him, but thus far they are not committing to helping him.
"The adjuster said it was groundwater, and he does not know if they are covered for that," Hanley said on Feb. 21. "He told me in the meantime I better clean up the place myself."
Generally, typical insurance does not cover groundwater damage at the foundation level or below.
Hanley has since filed a claim with his own insurance company, but he says the city is culpable for any damage.
"Flooding had never occurred in the building before the city raised that lot by filling in about six inches," Hanley said.
Hanley said the company handling the water mitigation has already billed out $7,000 and the final tab could be as much as $15,000, since any contaminated groundwater that touches wood will have to be treated by an antimicrobial.
The work done by the city in September was to prepare 13-17 Hanson Street as a downtown green space beginning this spring.
The acreage is leased by the city from owner Justin Gargiulo of Great North Property Management, Inc., of Exeter.
City Economic Development Director Mike Scala said the lease is a short-term affair while the owner defers development on the .24 acre lot.
Scala said the cost of the lease is a wash because they send Gargiulo a check for his property tax bill, and he sends it back to the city. Breitling Holdings, whose agent of record is Gargiulo, bought the property in 2017 for $135,000.
Hanley doesn't know why the city decided to raise the lot with six inches of fill, or why they didn't identify the flooding potential.
Hanson Street has a mild slope heading toward Columbus Avenue naturally, he said.
Private contractors would have had to obtain a stormwater management and erosion control permit, but since the city was conducting the work none was necessary, O'Rourke said.
"In this case, the department conducting the work and the department issuing the permit were the same, so the City would not apply for its own permit," he told The Voice.
The permit is required whenever someone "alters land or engages in any activity which causes or contributes to stormwater runoff discharge," according to the Stormwater Management and Erosion control permit application on the city's website. "The owner shall be required to apply to the Department of Public Works and obtain such permit from the Department, prior to undertaking any action," the permit says. "This requirement shall apply to any activity that will disturb or impact a land area greater than 5,000 cumulative square feet unless specifically exempted by the ordinance."
The land at 13-17 Hanson St. comprises .24 acres, or about 10,454 square feet, well over the threshold that would require a permit.
Hanley said if the city doesn't help, his insurer may have to go it alone, but they could very well subrogate against the city's insurer.
"Even if they do subrogate and recover all their money, it will still show up that I filed a claim, which could raise my rates," Hanley said.
Subrogation describes a legal right the insurance company holds to legally pursue a third-party responsible for the damage caused to the insured.
Scala said the idea of filling in the cellar hole of the former Colby's Pub and turning it into a park occurred after two city councilors came to him last year saying it was unsightly.
Hanley said on Thursday that the two councilors were Doug Lachance and Chris Rice.
Lachance said today he recalls only having a conversation with Hanley, "about using it for outdoor dining if the city were to lease it."
Rice were immediately available.
The city's lease took effect on July 19, 2021.
Meanwhile. Hanley said he is getting a lot support from his customers in his battle to get the city to step up.
"When anyone comes in and asks how they can help I give them the City Manger's (Blaine Cox) number," he said on Thursday.
Cox was not immediately available for comment as of this posting.