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Village Files to Oppose Metro Enviro Preliminary Injunction

August 1, 2005

After two and one half years of unsuccessful litigation trying to prevent the enforcement of the Village Board resolution closing its waste transfer station, Metro Enviro, together with its landlord, Greentree Realty, (the “Petitioners”) are trying to persuade the Supreme Court in White Plains to provide relief that both the Second Department and Court of Appeals found is not warranted. The Village argues that this is simply not permissible. “Most of the Petitioners’ claims are thin retreads of the claims Metro Enviro has made previously and ask for exactly the same relief. These claims are so lacking in merit that the first time they were raised by Metro Enviro, no court even mentioned them.”

All claims by ME attempting to overturn the Board’s resolution of January 27, 2003 ordering the facility to close are not barred by the doctrines of res judicata (claims that a court has already settled or dismissed are precluded from being relitigated by the original petitioner) and collateral estoppel (issues that a court has already decided are precluded from being relitigated by the original petitioner).

The Village argues that “Greentree Realty is in privity with Metro Enviro” (meaning both parties have sufficiently close and direct relationship and interest in the same property that what bars one party will also bar the other). Therefore that Greentree’s claims are also barred by res judicata and collateral estoppel. “Greentree was fully aware of the ongoing litigation and should not be rewarded for hiding in the weeds. Furthermore, any claims by Greentree may have had regarding the January 27, 2003 closure are now barred by the statute of limitations.” The Village also argues that Metro Enviro and Greentree have not exhausted the administrative remedies that may be available to them: “the Petitioners remarkably sued the (Village’s) Building Inspector for not granting a application that they filed the very same day they sued, and (even more amazingly) they sued the Zoning Board of Appeals for not reversing a decision that the Building Inspector had not yet made.”

“The claims presented (by Metro Enviro/Greentree) are not only barred by five separate fatal procedural defects, they are also completely devoid of merit. The Facility can only operate pursuant to a special permit, and the Court of Appeals has ruled that the special permit was rightly terminated.” In addition, the Village argues that Greentree, the landlord, is suffering no irreparable harm as the land itself has many legal uses beyond a waste transfer site, which Greentree has not explored. The Village carefully explains why the waster transfer use requires a special permit to counter Metro Enviro/Greentree claims that no special permit is required to operate a waste transfer station at that site. “Even after Metro Enviro closes, Greentree will still have valuable property.” The Village also argues that the suit’s attempts to make due process and taking claims are invalid in the case of adverse zoning decisions.

At the close of the filing, we find this summary: “The balance is between, on the one hand, a Village that has been lawfully attempting to remove a threat to the public health and environment, and on the other, a solid waste company that is guilty of numerous willful violations of its Permit, and its landlord, which has been notably absent while all this happened. The balance of the equities therefore strongly favors the Village.”

[Quotes in the summary above come from the Memo of Law (pdf) filed by Village’s special counsel Michael Gerrard on July 28, 2005.]

Following are the other legal documents, concurrently filed, in opposition of the preliminary injunction allowing Metro Enviro to continue operations.

On August 2, 2005 3:17 PM, Devil's Advocate said:

Now what Cudequest, Schmidt, Brennan and the rest of you special interest caterers??? I told you to resolve this quickly last week. Now you have wasted hundreds of thousands of taxpayer dollars which we will now never get back and for it we get AN EVEN WORSE AND UNREGULATED SITUATION!!! This would have NEVER happened if you did not take this ridiculous stance against Metro Enviro. Start clearing out your desk boys, March 2007 will be hear before you know it.

On August 2, 2005 9:04 AM, Mrs. Smith said:

Well put Ms. Barua. I think that this is a much more frightening situation for the village than anything we ever encountered with Metro Enviro. At least before, the board had some control over what happened there, and definitley had control over what went in and out, but now we are at risk of having no say whatsoever in this whole situation. Please, can we all try to work together and do what is possible to stop this from progressing.

On August 1, 2005 10:09 PM, Pat Barua said:

Really bad news on the Metro Enviro front:

According to papers filed today with the federal Surface Transportation Board (STB), Northeast Interchange Railway LLC has reached agreement to acquire ownership of Metro Enviro.

As pointed out in Georgianna Grant’s “More Implications for Croton” post here, an STB-exempted railroad entity can operate a C&D transfer station without ANY local or state oversight — which is what Northeast Interchange is apparently attempting to do here.

Northeast Interchange Railway LLC is wholly owned by Regus Industries, which in turn is controlled by Gordon Reger — who I understand has interests in a landfill in Ohio and other waste transfer sites.

Though I’m probably howling in the wind, I urge everyone to stop the blame game and unite against this horrible development. I also hope our public officials will take the lead in informing us of what is going on and applying all pressure necessary to prevent this nightmare from getting any closer to reality.



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