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A Tale of 2 Court Decisions: Goodbye, Special Permit for 1A Croton Point Avenue

December 15, 2007

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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.”

Bottom line

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?

Leo Wiegman

Editor’s note: The author is a former Village of Croton-on-Hudson Trustee who served three terms from 2001 to 2007.

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Endnotes

[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.

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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.

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On December 18, 2007 10:33 AM, weewill said:

It looks as if the Mayor and Trustee Brennan finally grasp the complexity of the 1A Croton Point Avenue issues. For years they’ve been saying “The issues are simple - no talking, no negotiating, no discussing - just say “No.”

At last night’s Village Board meeting the Mayor publicly admitted that “these issues are very complex.” Like the puppet he is,Trustee Brennan sat next to the Mayor nodding and bobbing his agreement. A far cry indeed from their previous inflexible and naïve positions demanding we “simply close them down.” Clearly now they’re on the other side of the podium and have access to the cold, hard facts surrounding the rocky road of litigation,.

Hopefully, they’ve come to realize when one chooses litigation over negotiation there’s always the chance you might lose. Finally they seem to recognize that things are a lot more complicated than “people don’t want it so we’ll just make it go away.” This simplistic and myopic approach has achieved nothing and has cost us hundreds of thousands of dollars.

Might we be right back where we started from in 1998 with a new application before us? (And because we’ve been forced into this untenable position of course we have to support the on-going litigation.) But we cannot overlook the tenacity and stridency in the property owner’s fight to preserve its financial interests. We are exposed to an even greater danger than the old MetroEnviro operation – namely a C&D facility operating without the village’s right to control it.

Everything is not rosy simply because the court ruled the injunction remains in effect. The real question is what happens next.

These recent court decisions pose many more problems than they have solved and the end isn’t in sight.

On December 16, 2007 7:40 PM, KWilly said:

Leo,

Thanks a whole lot for the answer. It confirms what i said, but we need to make sure the people of Croton are aware of these facts or else they are going to fall for the “We don’t want it, the Democrats do” argument again. It’s funny how it is looked at as an accomplishment for the mayor over the fact that NIR was evicted by Greentree because it didn’t pay its rent.

Kevin W. Davis

On December 16, 2007 7:24 PM, Leo Wiegman said:

Dear Kevin: Land uses that conform with the established municipal codes for a site may be continued in perpetuity. Land uses that are nonconforming usually happen when a land use code is modified. In most instances, a previously legal use is allowed to continue on that site, until the owner chooses to discontinue that use of his own accord. This is considered a ‘legal prior nonconforming use.’

The Village and the owner and operators all agree that the waste transfer station was a nonconforming use at the site. It had been since the early 1990s when the prior operators received the initial permit to shift from one prior nonconforming use (a wood waster operation supplying the capping work at Croton Point’s Superfund site) to a new one (a C&DD waste transfer station). New waste transfer stations were barred anywhere in the Village by a code revision in 2001.

Once Metro Enviro received the closure order, a new tenant Northeast Interchange Railway (NIR) leased the site to operate a waste transfer station. But NIR did not apply for a special permit renewal. It maintained it did not need one.

In November 2005, NIR told the Village that once NIR had a Solid Waste Commission license and the Metro Enviro’s NYSDEC permit transferred to its name, that NIR would commence operations. The Village was quite surprised since in July 2005 Judge Nicolai had ordered the applicant to seek a special permit from Croton in order to resume operation. So from that point on the argument became: did the site need a special permit or not to operate as waste transfer station?

In December 2005, the Village sought and received an injunction from Judge Nicolai that barred NIR from opening without applying for and being granted a special permit by the Village. The Village expected a permit application shortly thereafter, given how eager NIR was to open.

In July 2006, NIR did submit a permit application 10 months after Judge Nicolai had first indicated a special permit would be required. During those 10 months, NIR did everything it could to avoid regulation by the Village, including 3 or 4 adjournments, seeking the STB loophole on its own, and, when that did not work out (it was not a real railroad), seeking the STB loophole by signing up a real railroad (BSOR) as a partner. When NIR finally did apply for a special permit, its documentation was skimpy. And this was less than 60 days before the ‘one year discontinuous use’ clock would have tolled, wiping out the right to that prior nonconforming use.

By Village Code §230-53 A(3), a nonconforming use…”shall not be reestablished if such use has been discontinued for any reason for a period of one year or more or has been changed to or replaced by a conforming use. Intent to resume a nonconforming use shall not confer the right to do so.” But in December 2007, the Appellate Court said that the Village could NOT count the time the transfer station had been closed toward ‘discontinuance’ of the prior use due to the injunctions on barring it reopening. In other words, the fact that NIR never opened its doors as a waste transfer station was an involuntary discontinuance, and therefore did not count toward expiring the prior nonconforming use.

In early 2007, the landlord Greentree evicted NIR from the premises for falling behind in the rent.

On December 16, 2007 7:04 PM, TeaDrinker said:

Even as residents are saying that you have become the worst mayor Croton has ever had, I still say, “Schmidtie, you’re doing a heckuva job!”

On December 16, 2007 4:43 PM, KWilly said:

Leo,

I was asking about the most recent decision on the argument that the village lost. Am i right to say that the village argued and lost the arguement that because Greentree Wasn’t operating (due to legal battles) that they should be closed.

On December 16, 2007 3:48 PM, Leo Wiegman said:

Kevin: The waste transfer was operating when it applied for a permit renewal in 2001 and continued to operate throughout the next 4 years of litigation up to the closure order in September 2005. The key argument the Village used to close the station was that Metro Enviro’s violations were substantial and showed “a facility that continually promises to improve but nonetheless persistently violates regulations that are designed to protect health and the environment.”

The Village did not argue the violations by Metro Enviro caused actual harm to health and environment. If the Village had had evidence of actual harm, it surely would have used it. In July 2005 the Court of Appeals said we did not have to show actual harm: “the Board did not have to show substantial evidence of actual harm. It is enough that the Board found the violations potentially harmful….But even if no single violation was dangerous in itself, the Board was entitled to conclude that the history of repeated wilful violations created an unacceptable threat of future injury to health or the environment.” (quoted from the Court of Appeals decision, July 6, 2005.)

On December 16, 2007 2:11 PM, KWilly said:

I need someone to confirm this for me (Preferably Leo). Was one of the arguments we used for closing 1A Croton Point Avenue, the fact that they weren’t operating. Which seems like an odd argument to me considering the fact that they weren’t operating because we were fighting them in court.

Kevin W. Davis

On December 16, 2007 12:15 PM, crotonres said:

How many millions more will we sink into this black hole while the rest of the town disappears? The commercial tax base in this town continues to shrink.

On December 16, 2007 11:15 AM, weewill said:

Thanks Leo … once again you are clear and concise as you lay out the facts.

It has been claimed that the issues surrounding MetroEnviro were simple and clear — Croton residents did not want a waste transfer operation in our village so we should “just shut them down.”

The only thing clear and simple is that we should “be careful what we wish for.” It appears from this recent court decision that after the many years and the millions of dollars in litigation, we are now right back where we started.

The arguments from any new operation would be the same as those used by MetroEnviro nearly 10 years ago …. “We’re good guys; we promise to abide by all the rules; you can’t deny us the right to operate; you have no basis to do so; we haven’t done anything wrong; it was the other guys who did; we have the right; just give us a chance….. etc.” Our hands were tied then and I do believe they may be again with any new applicant. We needed sound legal reason to deny a permit then and in all likelihood will need them again should any new applicant appear.

And on and on and on ………… $$$$$$$$$$



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