During the regularly scheduled Village Board meeting held on May 1, 2006, Attorney Marianne Stecich was asked by Mayor Greg Schmidt to provide Croton residents with a report summarizing a recent decision by State Supreme Court Justice Francis A. Nicolai regarding the village’s case against Northeast Interchange Railway, LLC (NIR) and Greentree Realty, LLC concerning the need for a special permit to restart waste transfer operations at 1A Croton Point Avenue, the former Metro Enviro site.
Option: Download and watch this video clip of “Stecich Briefs Residents on Recent Judicial Ruling on NIR Special Permit” from the Village Board meeting on May 1, 2006, in Quicktime format (8:34 min. | 11 mb).
Mayor Greg Schmidt: “Right now we are going to have a report for Attorney Stecich about the Nicolai decision.”
Village Attorney Marianne Stecich: “I am pleased to be able to report that Judge Nicolai handed down his decision on Thursday. The decision enjoined NIR from operating a transfer station at 1A Croton Point Avenue without first obtaining a special permit from the village. The reasoning in the, not, not too thorough I would say pretty much the decision is a little hard to follow. He says the petitioner argued what the village argued the respondents argued but the bottom line is he came down with the right decision for the village.
The village had made two arguments. First, we argued that when Metro Enviro lost its special permit in 2003, the right to continue that non-conforming use was lost altogether. Um, alternatively, we argued that is if the non-conforming use wasn’t lost altogether, that any new entity seeking to run the transfer station or any waste facility had to obtain a special permit from the village and that’s the argument he accepted. Greentree and NIR’s position, they both put in separate papers although they agreed with each other was that a transfer station was a prior legal non-conforming use that under the Croton code can continue indefinitely and doesn’t require any kind of special permit, which is why they never came to the village for it. This position, remember, there were two lawsuits here, the judge did consolidate which I think is better for us. That was Greentree’s action against the village that was started last summer and then there was the village’s action that was brought against Greentree and NIR right before the end of the year.
Um, now, their position was that a transfer station had been an as-of-right use in the village in the Allied district until 2001 when that zoning code, when that zoning code amendment was enacted to express and prohibit transfer stations. Um, the village’s positions was they haven’t been allowed in the village since at least 1979 in a non-conforming use all along. Um, until this latest decision, Judge Nicolai seemed to agree with their, um, and I’m basing that on a sum of decision and I’m basing it on our oral arguments. He seemed to accept the position that until 2001, it was a legal use.
If it was a legal use, there would be some merit to their argument, their prior non-conforming use argument. So, what the village had to do was to convince the court that it wasn’t a conforming use before 2001 in 1997 and although the judge did not come right out and say that its necessarily part of his decision in that he did. The other thing we had to convince the judge was if it can continue as a non-conforming use, special permit non-conforming use, anew operator has to get a new special permit.
At the oral argument, we were really thrown because the judge’s position seemed to be that, listen, there’s a special permit, the special permit with the land and maybe you could make sure that the conditions are right but you wouldn’t have the right to start over with a special permit. Um, and he did, the judge ended up not ruling that. they have to go back and apply for a new special permit. Um, he and his bottom line was and this is a quote ‘that the village had the right to assure its citizens that any new operator will manage the facility in such a way that it will not harm their health, safety and welfare’. It was good language, it was taken right from the village’s brief. Um, again, that our preferred position would have been, you know its not allowed at all, but um, the, everybody is surprised that we got relief from Judge Nicolai at all. This is the first round that he has actually been, I’m not going to say sympathetic with the court, the village. I don’t think he was particularly sympathetic with us but I think he really realized he had no choice but to require a special permit.
Um, and then this is just something I need to asked the board. Its odd but the decision required the village to post a $25,000 bond. I have to say that I have never seen that in an injunction to enforce a zoning ordinance. It makes absolutely no sense. But, I think it would be cheaper to just post the bond than to fight it so my recommendation to the board would be to pass a resolution authorizing the treasurer to do whatever he needs to do to post the $25,000 item.”
Mayor Greg Schmidt: “Um, ok, so we can do the later on during resolutions? Or do you want us to do that right now? We could do that.”
Village Attorney Marianne Stecich: “Yeah. Either way lets just not forget to do it.”
Mayor Greg Schmidt: “Lets not forget to do it, so.”
Trustee Ann Gallelli: “I think we should make that motion now.”
Village Attorney Marianne Stecich: “Yeah, we might as well make it now.”
Mayor Greg Schmidt: “Okay.”
Trustee Ann Gallelli: “And I’d like to say that the brief on which Judge Nicolai relied on, Ms. Stecich wrote, was an excellent piece. You made your points extremely clear. Thank you.”
Village Attorney Marianne Stecich: “Thank you.”
Trustee Charlie Kane: “Very good work.”
Mayor Greg Schmidt: “Ah, so we have a motion to authorize.”
Trustee Charlie Kane: “Second.”
Trustee Ann Gallelli: “Yes, whatever you have to do to get the $25,000 to satisfy Judge Nicolai.”
Trustee Charlie Kane: “It should be 10%, $2,500?”
Treasurer Abraham Zambrano: “Yes, that’s normally what is required.”
Mayor Greg Schmidt: “Second by Trustee Kane. All those in favor.”
Mayor Greg Schmidt: “An again I want to um, reiterate those comments over there. Marianne has, Attorney Stecich has taught me one valuable lesson about being an attorney.
I never really understood this until I sat one day with Attorney Stecich’s brief and Attorney Steinmetz’s brief. She told me that the secret of an attorney writing a brief is to write it in such a way that almost anybody could sit down and read that and understand what it is that you are trying to get across.
And I actually took both of them and sat with them and I read your brief and it was like everything, it just flowed like reading a novel which just went from one thing to the next. It was a beginning, ah, you know, climax and then the ending. You know, it was all there.
And then I tried to read Steinmetz, and I have to say that I tried to read it and I couldn’t get through it. So, you know, I think that is—“
Village Attorney Marianne Stecich: “I have to say that his brief was a pretty good brief as well.”
Mayor Greg Schmidt: “It was but I, but—”
Village Attorney Marianne Stecich: “I know what you are saying.”
Mayor Greg Schmidt: “I think that was an important part of um, really working with Nicolai to have him understand you know what we did as a village, what led us up to these points and how we got here, ah, so that he could understand it and make this decision really for us. So, ah, thank you.”
Trustee Ann Gallelli: “I have one more question on that. Now that they have been required to seek a special permit if they wish to try and operate in the village, do you expect them to do that very soon?”
Village Attorney Marianne Stecich: “I don’t know. I actually called today to see if they had come in for it and I was actually talking to Mike Gerard about that. I don’t have any idea what their strategy will be other than to apply for it whether to appeal, maybe do both.”
Trustee Ann Gallelli: “They can do both though right?”
Village Attorney Marianne Stecich: “Yeah.”
Trustee Thomas Brennan: “Great job Marianne.”
Mayor Greg Schmidt: “Yup. Thank you.”