The only good news in the two recent appellate decisions appears to be court’s upholding the injunction the village obtained that blocks a waste transfer station from instantly opening at 1A Croton Point Avenue. [Endnote 1]
Everything else in the decisions seems like bad news for either preventing a transfer site from re-opening or for curbing the village’s legal expenses.
The two recent Appellate Court rulings seems to suggest—when the injunction is lifted—that property owner Greentree does not require a new special use permit from the Village Board to continue use of the site as a waste transfer station, if they choose, and has a right to a zoning variance for a different use, if they choose that instead.
Hence, the owners may lease the site to a new operator with the right to use it as a waste transfer station, as defined by 42 operation and maintenance conditions originally imposed by the 1998 special permit. [Endnote 2]
In the Village v Northeast Interchange Railway (NIR) decision, the final phrase concerning “as a matter of right” seems clearly to benefit the owner (which remains Greentree) and operator (which was NIR, but could be any future waste hauler).
The Court removed key wording that blocked the Greetree “from operating a transfer station at the Property without first obtaining a special permit in accordance with the Village’s Zoning Code….” Instead the Court enjoined such parties “from operating a transfer station at the Property until such time as the Village recognizes the permissibility of their proposed use, it is judicially determined that they may use the Property for its intended purpose as a matter of right, or a use variance is obtained….”
Removing the Village’s “special permit” as a requirement for “operating a transfer station” and imposing the Village’s recognizing “the permissibility of their proposed use” leaves the question of what “permissibility” means. Will defining this permissibility become a future legal battle?
With the requirement for a refreshed special permit gone, Croton may have lost the chance to tighten the existing conditions in the old permit, such as adjusting truck volume, routes traveled, hours of operation, capacity limitations, and delineating types of waste not allowed in the facility and specifying training required of facility personnel.
The Court is suggesting the owners must obtain permission from the village to operate as a waste transfer station, and implies this permission must be according to the village zoning code regarding zoning issues. That may mean the permission would be granted by the Village Zoning Board of Appeals and not by the Village Board of Trustees. What teeth would the ZBA have if it wants to tighten any of the operation and maintenance conditions at the transfer station?
The related Greentree v Village decision places weight on the duration of the injunction, which may be hinge on how “permissibility” is defined. Surely the injunction can not last forever. Will the duration become a future legal battle?
In Greentree, the Court clearly decided that the village’s “discontinuance” clock for the property could not be triggered by how long it might take to process an application for a special permit. Instead, the discontinuous use clock may not start until after “the period of time during which the injunction issued … is in effect…”
If the village rejects “the permissibility of their proposed use” to re-open a waste transfer station, the site’s owner or potential operator goes to court for the matter to be “judicially determined.” Will overturning of a Village rejection become a future legal battle?
The Court does not say why it states the Village possessed “bad faith.” Let us hope that phrase is merely a rhetorical flourish by the judge, and was not provoked by a specific action of the Village: “Contrary to the Village’s argument, the fact that Greentree did not seek a permit immediately after formulating its intention to resume Metro Enviro’s use of the property as a transfer station does not defeat its entitlement to a toll. In the circumstances presented here, the toll is predicated neither on Greentree’s good faith nor on the Village’s bad faith.”
These rulings contain enough ambiguity at the margins and involve enough potential property value at the site to invite more time-consuming and expensive litigation—if the village chooses to continue.
Together, these decisions appears to give more positive options to the owners and potential operators of 1A Croton Point Avenue than to the Village.
Future court battles may loom over the length of the injunction and what the permissibility process should be. If Croton rejects a transfer station operation somewhere along the way, the whole legal battle may start all over again in somewhat uncharted territory for both the plaintiff and defendant.
Why would a site owner continue the battle? The site’s owner and potential operators have and will likely continue to split the bills for their legal work. The Village has no allies in blocking this land use who will help shoulder the bill, so it shoulders 100% of the defense costs.
Anything that removes barriers to developing or reopening the site will also likely increase the value of the site. That payoff in turn makes a legal battle more worthwhile for owner or operator on the cost-benefit scale. Would the same be true for the Village?
Editor’s note: The author is a former Village of Croton-on-Hudson Trustee who served three terms from 2001 to 2007.
[Endnote 1] The Appellate Division of the Supreme Court of the State of New York issued two short decisions on December 4, 2007. The cases are Greentree Realty, LLC v Village of Croton-on-Hudson and Village of Croton-on-Hudson v Northeast Interchange Railway, LLC. The appeals were argued before the court in September 2007 and concern the 9.5 acre site of the now shuttered waste transfer station at 1A Croton Point Avenue. Read the decisions at the village website.
[Endnote 2] Brief Background on 1A Croton Point Avenue: The original special permit, granted by the village after a protracted process in 1998, contained 42 conditions placed on the transfer of construction demolition and debris from incoming trucks to outgoing rail cars at the “solid waste recyclables, handling, and processing facility” located on 9.5 acres between Route 9 and the Metro-North Railroad. The site’s address is 1A Croton Point Avenue.
Since 2001, the Village has been obtaining legal advice and incurring litigation costs over 1A Croton Point Avenue. These questions were first raised by the site operator, Metro-Enviro, when it sought a renewal of a special permit in 2001. Meanwhile, its operations had violated numerous terms of that permit, leading the village to proceed with utmost caution while the evidence trickled in.
In 2001, the Village barred one specific use, whether by as of right or by special permit, “Solid and liquid waste transfer and storage stations and landfills (including construction and demolition materials) are prohibited.” This change in village code had the effect of making the continuance of the right to operate an pre-existing transfer station in Croton all the more valuable to the site’s owner and potential operators. [For full text of Village Zoning code, see § 230-18-E. Light Industrial (LI) District (revised 2001).]
In 2001, the operator of the site, Metro Enviro applied for a renewal of its 3 year special permit. Simultaneously, however, due in part to federal investigations of waste hauling, the Village learned of an extensive pattern of violations of the permit at the site.
In January 2003, after issuing more than a dozen permit extensions while the Village heard testimony both for and against renewal, the Village voted to deny the permit renewal to Metro Enviro. The Village detailed its reasons in a 15-page statement of findings detailing its rationale, including a three-page chart summarizing Metro’s violations. The Village concluded Metro Enviro’s violations were substantial and “signify a facility that continually promises to improve but nonetheless persistently violates regulations that are designed to protect health and the environment.”
From 2003 to 2005, the battle between the Village and the site’s operator boiled down to a single huge question: Did the village have the right to close an operation holding a special permit if the operator violated the terms of the permit?
Residents may recall a chart of the village’s legal options prepared in September 2004. That chart is viewable here, updated to reflect which projected actions have now come to pass.
In July 2005, the state’s highest court ruled in favor of the Village’s right to terminate an operator who a violates special permit whether or not actual harm had been demonstrated. This ruling was a major victory for Croton and for every New York municipality in reaffirming cities, towns and village the power to deny renewal to permit violators. This 2005 decision did not remove the underlying special permit or right for a new, untainted tenant to operate under the terms of this permit. [The Court of Appeal’s closure order issued to Metro Enviro on 12 July 2005 may be read here]
At the time of Croton’s July 2005 court victory, largely argued and paid for in 2004, the village had a good leverage. The operator, Metro Enviro, was ordered to vacate the site. It closed its doors in September 2005.
Since fall 2005, the new legal battles have been smaller, but time-consuming arguments brought by the site’s owner and new potential tenant operators seeking to replace Metro Enviro. These battles raged over the fine print in the village’s land-use laws, e.g. on whether a pre-existing use is grandfathered, whether cessation of operation due to permit termination starts the village’s one year clock that would forever extinguish the prior use, whether the use runs with the land and not the operator, and other points.
In short, the key question now became whether a new operator could use the 1998 special use permit and its conditions to open a construction and demolition debris transfer station. In September 2007, the Appellate Court gathered two related cases into one deliberation. In December 2007, it issued its two related rulings that we have now.
In the meantime, the new potential operators in 2005 sought to exploit the federal loophole in granting a railroad the right to transfer solid waste with virtually no local oversight. This move expanded the village’s legal battle from White Plains to Washington. How these regulatory law arguments are playing out before the Surface Transportation Board and Congress is a different story for another time.