In the last few weeks, residents have had a chance to become acquainted with the dilemma Croton is faced with regarding the future of the Metro Enviro site. I previously wrote about the application of Northeast Interstate Railway (NIR) to the federal Surface Transportation Board (STB) for certification as a railroad and ultimately to be exempt from state and local regulations regarding the transfer of all kinds of waste from the former Metro Enviro site.
While both Croton and NIR await the decision of the STB, NIR has also applied to the Westchester County Solid Waste Commission for a license and to the NYSDEC for a permit to operate the site as a lessee of Greentree LLC – the underlying property owner. Greentree LLC has the support of Judge Nicolai to operate the site as a C&D transfer site until the issues of their lawsuit against the Village are decided.
At this point, while the Village is waiting for the STB decision, residents need to be considering our possible avenues of action.
There are a range of options available but some have more impact than others. The spectrum of options range from (1) resolving to carry on the legal fight to prevent future use of the site for waste transfer as long as it takes with no negotiation with other parties to (5) giving up and letting NIR (or similar company) become an unregulated 24/7 waste transfer site.
In between there are some other possibilities including (2) the Village exercising eminent domain for the site, (3) negotiating with Greentree LLC to reach possible agreement on other uses agreeable to both parties, and finally, (4) accepting NIR’s request to talk to determine if there is a level of use at the site that would be agreeable to both parties. There may be others as well that interested residents may identify. Here is the range of options in more detail:
Option 1 - The legal fight will be long and costly through many levels of courts. So far the Village has expended approximately $800k on this effort. We won a big decision in the NYS Court of Appeals giving us the right to deny a permit if violations have occurred. We are now engaged in litigation with Greentree LLC over whether the use at the site is “grandfathered”. This will likely go through several levels of appeals until resolved. We are also fighting to get the STB to deny NIR’s application. If we lose this attempt, there will likely be further levels of appeals. We are also making our case against the Solid Waste Commission licensing and the NYS DEC permitting. Unless there is another way out, we will have to continue these legal efforts into the future. Can we afford another $800k of legal fees with no assurance we will win?
Option 2. The Village could try to exercise eminent domain to take the site. Although no appraised value is known at this time, it is estimated to be many millions. To do this the Village must have the money in place in escrow before beginning. The “public good” for which it is taken will also have to be constructed if we are successful. Bonding this amount of money or more will have serious repercussions on property taxes. It may also mean that the Village will be unable to move ahead with other capital projects and equipment replacements that are normally funded through bonding. These projects, if done, would have t be paid for from the General Fund – again putting upward pressure on property taxes. There are many other issues concerning eminent domain about which residents need to be informed if this choice is made but this letter is already long enough. Greentree could litigate over numerous aspects of the Village’s condemnation and the Village would have to defend its condemnation vigorously in court.
Option 3. The Village could talk to Greentree LLC to see if there is some mutually agreeable use at the site that would provide them a financial return and satisfy our desire not to have a transfer station. If this proved to be the case, then we could move ahead with the planning and development of that alternative. There are several uses that are “as of right” under the Village’s Light Industrial Zoning including business and professional offices, railroad lines and stations, and motor vehicle parking structures and parking lots. There are also additional uses allowed with a special permit including light manufacturing, research and design labs, hotels, inns and restaurants among others. One of these uses might be mutually agreeable or the Village might also consider extending its recent railroad station study to this area and study other alternative uses as well such as mixed use housing and retail. These potential uses have impacts of their own which will need to be considered.
Option 4. Since NIR represented in both its STB briefs and at the Solid Waste Commission public hearing that they want to talk to Village officials but have been rebuffed, perhaps the Village should at least talk to them. The Village may want to consider the benefit of having its special counsel listen to the NIR attorneys. Generally speaking, the courts seem to look more favorably on parties that have attempted to discuss their differences outside the court system. Such a discussion may not have productive results but nothing would be lost. This is an avenue yet to be explored.
Option 5. Last, and definitely not acceptable, is that we give up the fight, back off and leave ourselves at the hands of others. The costs to this are unknown but are likely to result in an unregulated waste transfer company operating in the Village. Impacts would be both financial and environmental. We need also to remember that Option #1 above will have the same result as option #5 if the Village doesn’t win its legal fights.
So what avenue is best? What other suggestions do you have (leave a comment below with your opinion)?
If #1 and #5 can potentially end up the same way, shouldn’t the Village be looking at #2, #3 or #4 or some others not identified here? I urge you to get informed and involved in this critical situation.