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Supreme Court upholds Concord developer Kevin Guay’s illegal dumping convictions

  • Concord Police officer Marc McGonagle, right, watches Richard deSeve of the NHDES label a collection from the Clinton St. property of Concord developer Kevin Guay; Thursday, March 26, 2009. <br/><br/>(Concord Monitor photo/Alexander Cohn)

    Concord Police officer Marc McGonagle, right, watches Richard deSeve of the NHDES label a collection from the Clinton St. property of Concord developer Kevin Guay; Thursday, March 26, 2009.

    (Concord Monitor photo/Alexander Cohn)

  • Concord developer Kevin Guay, right,  listens to testimony as his lawyer, Brandon Giuda, examines a map of Guay's Villanova Drive poperty; Monday, June 21, 2010. The New Hampshire Department of Environmental Services is seeking $90,000 in penalties against Guay for allegedly allowing run-off to flow into Penacook Lake, the city's drinking water reservoir, in 2008.<br/><br/>Alexander Cohn/ Monitor Staff

    Concord developer Kevin Guay, right, listens to testimony as his lawyer, Brandon Giuda, examines a map of Guay's Villanova Drive poperty; Monday, June 21, 2010. The New Hampshire Department of Environmental Services is seeking $90,000 in penalties against Guay for allegedly allowing run-off to flow into Penacook Lake, the city's drinking water reservoir, in 2008.

    Alexander Cohn/ Monitor Staff

  • Concord Police officer Marc McGonagle, right, watches Richard deSeve of the NHDES label a collection from the Clinton St. property of Concord developer Kevin Guay; Thursday, March 26, 2009. <br/><br/>(Concord Monitor photo/Alexander Cohn)
  • Concord developer Kevin Guay, right,  listens to testimony as his lawyer, Brandon Giuda, examines a map of Guay's Villanova Drive poperty; Monday, June 21, 2010. The New Hampshire Department of Environmental Services is seeking $90,000 in penalties against Guay for allegedly allowing run-off to flow into Penacook Lake, the city's drinking water reservoir, in 2008.<br/><br/>Alexander Cohn/ Monitor Staff

The state Supreme Court has upheld convictions against developer Kevin Guay for burying waste at two of his Concord properties and dumping fecal matter from his septic system directly onto the ground.

Guay has already served his one-year jail sentence for the crimes, and he is still paying nearly $21,500 in restitution. The Supreme Court accepted his appeal last year. In a ruling released yesterday, justices upheld the convictions from a 2010 jury trial in Merrimack County Superior Court.

Guay illegally dumped and buried junk on his properties at 30 Villanova Drive and 180 Clinton St., and he was charged after a 2009 investigation by the Concord police and the Department of Environmental Services. On Villanova Drive, he had buried a 275-gallon heating oil tank, carpeting, old mattresses, a metal stove, a broken hot tub and other items. Authorities found mattresses, appliances, couches, metal debris and other above-ground items on Clinton Street, as well as buried sheetrock and tree stumps.

A septic system also pumped untreated brown water through a hose and onto the ground at Guay’s Clinton Street property. Tests found fecal contamination in the liquid from the hose, which emptied in the direction of the Turkey River.

After a weeklong jury trial in October 2010, Guay was convicted of two misdemeanors for unlawful operation of a solid waste facility and one misdemeanor for unlawful maintenance of a septic system.

Though Guay had no criminal background until those convictions, he has a history of fines and administrative orders. The Department of Environmental Services has repeatedly gone to court to stop Guay from illegally filling wetlands on his property, and in 2010 he was fined $270,000 for running sediment off his property into Penacook Lake, which serves as the city’s drinking water supply. Also in 2010, he was fined $100,000 for burying solid waste.

At Guay’s sentencing for the misdemeanor crimes in 2011, Senior Assistant Attorney General Lauren Noether said Guay “has made a mockery of environmental laws for years.”

Guay filed for bankruptcy in 2008, and his properties, including those on Villanova Drive and Clinton Street, were later foreclosed.

The city of Concord has a tax lien on the 30 Villanova Drive property for $8,218 in unpaid property taxes, according to the city’s tax database. Deeds records show the property was sold for $15,500 to 30 Villanova LLC at a foreclosure auction last year.

The 180 Clinton St. property is now owned by Wells Fargo Bank and is for sale at an asking price of $199,900, according to the realty company.

In Guay’s appeal to the Supreme Court, his attorney argued that he should only have received civil penalties for the offense. But the court upheld the criminal misdemeanor charges. Guay also argued that inadmissible evidence had been permitted at his trial, when a police detective questioned the credibility of Guay’s testimony and the prosecutor questioned Guay about other witnesses’ credibility. The Supreme Court ruled that errors made did not affect the outcome of the case.

Attempts yesterday to reach Guay and his public defender, Dorothy Graham, were unsuccessful. Noether, who prosecuted Guay’s case, also did not return a message left yesterday.

Guay was released from the Merrimack County jail last May, according to Department of Corrections spokesman Jeff Lyons. He is still paying the nearly $21,500 owed in restitution to DES and the Concord police for the costs of their investigation.

(Laura McCrystal can be reached at 369-3312 or
lmccrystal@cmonitor.com or on Twitter @lmccrystal.)

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