SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION – SECOND DEPARTMENT
METRO ENVIRO TRANSFER, LLC,
THE VILLAGE OF CROTON-ON-HUDSON and THE VILLAGE BOARD OF TRUSTEES OF THE VILLAGE OF CROTON-ON-HUDSON,
To Be Argued By:
Michael B. Gerrard
Index No. 2003-02335
BRIEF OF RESPONDENTS-APPELLANTS
MICHAEL B. GERRARD
KERRY A. DZIUBEK
Arnold & Porter
399 Park Avenue
New York, New York 10022
Attorneys for Respondents-Appellants
The Village of Croton-on-Hudson and
The Village Board of Trustees of the
Village of Croton-on-Hudson
Westchester County Clerk’s Index No. 03/1788
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION – SECOND DEPARTMENT
METRO ENVIRO TRANSFER, LLC,
THE VILLAGE OF CROTON-ON-HUDSON and THE VILLAGE BOARD OF TRUSTEES OF THE VILLAGE OF CROTON-ON-HUDSON,
Index No. 2003-02335
APPELLANTS’ STATEMENT PURSUANT TO CPLR 5531
Appellants hereby submit the following information as required by CPLR 5531:
The index number of the special proceeding in the Supreme Court, Westchester County is 03/1788.
The full name of the original parties is as follows:
Petitioner: Metro Enviro Transfer, LLC.
Respondents: The Village of Croton-on-Hudson and the Village Board of Trustees of the Village of Croton-on-Hudson.
The special proceeding was commenced in Supreme Court, Westchester County.
The special proceeding was commenced on February 3, 2003. The Verified Article 78 Petition was served on or about February 3, 2003. The Verified Answer was served on or about February 7, 2003. No other pleadings were served as of the date of the Order appealed from.
Petitioner filed the underlying special proceeding pursuant to CPLR Article 78. As its object, the Article 78 petition sought to (i) annul the determination of the Village Board to deny Petitioner a renewal of its special use permit to operate a transfer station used primarily for construction and demolition (C&D) debris at 1A Croton Point Avenue in Croton-on-Hudson; and (ii) direct the Respondents to reverse their decision and issue a renewal of the special use permit.
The instant appeal is from a short form order dated February 19, 2003, and entered February 20, 2003, granting Petitioner’s Article 78 Petition and remitting the matter to Respondents to issue a permit in accordance with the short form order, upon such reasonable conditions as Respondents deem appropriate. The order was made by the Honorable Justice Frances A. Nicolai.
The appeal will be heard on the full record, reproduced.
Dated: New York, New York
September __, 2003
ARNOLD & PORTER
MICHAEL B. GERRARD
KERRY A. DZIUBEK
399 Park Avenue
New York, New York 10022
Attorneys for Respondents-Appellants
The Village of Croton-on-Hudson and the Village Board of Trustees of the Village of Croton-on-Hudson
TABLE OF CONTENTS
QUESTION PRESENTED 1
STATEMENT OF THE CASE 1
STATEMENT OF RELEVANT FACTS 4
GOVERNING LAW 18
Village Code Provisions 18
Special Use Permit Enforcement Provisions 18
Relevant Statutory Authority 20
POINT I. THE COURT BELOW APPLIED THE WRONG STANDARD OF REVIEW 21
A. The Village Board’s Decision to Deny the Special Use Permit Renewal Request Is Entitled to Great Deference 21
B. The Court Below Did Not Accord the Village Board the Deference to Which It Was Entitled 25
POINT II. THE VILLAGE BOARD’S REFUSAL TO RENEW METRO ENVIRO TRANSFER’S EXPIRED PERMIT WAS RATIONAL AND BASED ON SUBSTANTIAL EVIDENCE 27
A. The Record Contained Ample Evidence Showing Violations of Permit Rules Designed to Protect Public Health and Safety 27
B. Permit Renewals May Be Denied For Permit Violations 31
POINT III. THE COURT BELOW RELIED ON SEVERAL IMPERMISSIBLE GROUNDS FOR GRANTING THE PETITION 33
A. It Is Not Necessary To Prove That Injury Has Already Occurred Before Taking Preventive Action 33
B. There Was No Assurance That All Violations Had Been Cured And Resolved 35
C. The Presence Of Generalized Public Opposition Does Not Invalidate A Decision Where Substantial Evidence Is Present 37
D. DEC’s Decision, Made After The Challenged Village Board Action, Does Not Preempt That Action 39
TABLE OF AUTHORITIES
4M Holding Co. v. Town Bd. of the Town of Islip,
185 A.D.2d 317, 586 N.Y.S.2d 286 (2d Dept. 1992) 34
Albany-Greene Sanitation, Inc. v. Town of New Baltimore Zoning Bd. of Appeals,
263 A.D.2d 644, 692 N.Y.S.2d 831 (3d Dept. 1999) 41
All Weather Carting Corp. v. Town Board of the Town of Islip,
137 Misc. 2d 843, 522 N.Y.S.2d 425 (Sup. Ct. Suffolk Co. 1987) 41
Atlantic Cement Co. v. Williams,
129 A.D.2d 84, 516 N.Y.S.2d 523 (3d Dept. 1987) 31
B. Manzo & Son, Inc. v. New York State Department of Environmental Conservation,
285 A.D.2d 504, 727 N.Y.S.2d 173 (2d Dept. 2001) 41
Bell v. Szmigel,
171 A.D.2d 1032, 569 N.Y.S.2d 36 (4th Dept. 1991) 31
Dries v. Town Bd. of Town of Riverhead,
305 A.D.2d 596, 759 N.Y.S.2d 367 (2d Dept. May 19, 2003) 24, 38
Feinberg v. Bd. of Appeals of the Town of Sanford,
306 A.D.2d 393, 759 N.Y.S.2d 706 (3d Dept. June 5, 2003) 25
Francis Dev. & Mgmt. Co. v. Town of Clarence,
306 A.D.2d 880, 761 N.Y.S.2d 760 (4th Dept. June 13, 2003) 25
Home Depot, USA Inc. v. Town of Mt. Pleasant,
293 A.D.2d 677, 741 N.Y.S.2d 274 (2d Dept. 2002), appeal denied, 99 N.Y.2d 507, 757 N.Y.S.2d 817 (Feb. 13, 2003) 38
Homeyer v. Town of Skaneateles Zoning Bd. of Appeals,
302 A.D.2d 941, 754 N.Y.S.2d 611 (4th Dept. Feb. 7, 2003) 25
Ifrah v. Utschig,
98 N.Y.2d 304, 746 N.Y.S.2d 667 (2002) 21, 24, 38
Incorporated Village of Freeport v. Jefferson Indoor Marina, Inc.,
162 A.D.2d 434, 556 N.Y.S.2d 150 (2d Dept. 1990) 34
Metro Enviro Transfer LLC v. Village of Croton-on-Hudson,
Index No. 03/1788 (Sup. Ct. Westchester Co. Feb. 19, 2003) passim
Niagara Recycling v. Town of Niagara,
83 A.D.2d 316, 443 N.Y.S.2d 939 (4th Dept. 1981) 40
Northside Salvage Yard, Inc. v. Bd. of Appeals of the Town of Pittsford,
199 A.D.2d 1001, 608 N.Y.S.2d 13 (4th Dept. 1993) 31
PDH Properties, LLC, v. Planning Bd. of the Town of Milton,
298 A.D.2d 684, 748 N.Y.S.2d 193 (3d Dept. Oct. 17, 2002) 23
P.M.S. Assets, Ltd. v. Zoning Bd. of Appeals of Village of Pleasantville,
98 N.Y.2d 683, 746 N.Y.S.2d 440 (2002) 21, 23
Partition Street Corp. v. Zoning Bd. of Appeals of the City of Rensselaer,
302 A.D.2d 65, 752 N.Y.S.2d 749 (3d Dept. 2002), appeal denied, 99 N.Y.2d 511, 760 N.Y.S.2d 102 (Apr. 8, 2003) 25
Persico v. Incorporated Village of Mineola,
Index No. 33781/96 (Sup. Ct. Nassau Co. June 10, 1998),
aff’d, 261 A.D.2d 407, 687 N.Y.S.2d 291 (2d Dept. 1999) 32
Retail Property Trust v. Bd. of Zoning Appeals of Town of Hempstead,
98 N.Y.2d 190, 746 N.Y.S.2d 662 (2002) 21, 22, 23, 24, 38
Snake Hill Corp. v. Town Bd. of Town of Clarkstown,
304 A.D.2d 670, 757 N.Y.S.2d 484 (2d Dept. April 14, 2003) 25
State of New York v. Brookhaven Aggregates, Ltd.,
121 A.D.2d 440, 503 N.Y.S.2d 413 (2d Dept. 1986) 34
Town of Islip v. Clark,
90 A.D.2d 500, 454 N.Y.S.2d 893 (2d Dept. 1982) 34
Village of Hudson Falls v. New York State Department of Environmental Conservation,
158 A.D.2d 24, 557 N.Y.S.2d 702 (3d Dept. 1990),
aff’d, 77 N.Y.2d 983, 571 N.Y.S.2d 908 (1991) 31
Wickes v. Kaplan,
304 A.D.2d 769, 758 N.Y.S.2d 383 (2d Dept. April 21, 2003) 25-25
Croton-on-Hudson Village Code Section 230-56 18
New York Environmental Conservation Law Section 8-0103 15, 21
New York Environmental Conservation Law Section 27-0711 40
New York Environmental Conservation Law Section 71-2713 35
New York Municipal Home Rule Law Section 10 15, 20
New York Village Law Section 4-412 15, 20
New York Village Law Section 7-700 15, 20
New York Village Law Section 7-704 15, 21
New York Village Law Section 7-725-b 15, 20
Waste Tire Management and Recycling Act of 2003 8
Other Authorities: Page(s)
6 N.Y.C.R.R. § 360-1.7 7, 9, 10, 12
John M. Armentano, A Land-Use Trilogy: Cases Show Court is Increasingly
Siding with Municipal Boards, N.Y.L.J. Vol. 228, No. 15, 5 (July 24, 2002) 22
John R. Nolon, Local Authority: Communities Have Means of Influencing
Land Use, N.Y.L.J., Vol. 229, 5 (June 18, 2003) 22
Stewart E. Sterk, Court of Appeals Offers Guidance and A New Approach
to Zoning Questions, N.Y. Real Estate L. Rep., Vol. XVI, No. 11, 1 (August 2002) 22
Stewart E. Sterk, Denial of Special Use Permit Renewal, N.Y. Real Estate L. Rep., Vol. XVII, No. 6, 3 (April 2003) 23
Stewart E. Sterk, Judicial Review of Local Zoning Narrows,
N.Y.L.J. Vol. 228, S9 (October 7, 2002) 22
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION – SECOND DEPARTMENT
METRO ENVIRO TRANSFER, LLC,
THE VILLAGE OF CROTON-ON-HUDSON and THE VILLAGE BOARD OF TRUSTEES OF THE VILLAGE OF CROTON-ON-HUDSON,
Index No. 2003-02335
Where a village board, after multiple public hearings and the compilation of a 15-volume record, finds that a solid waste facility has violated, numerous times and in several respects, provisions of its special use permit designed to protect public health and safety, and that the facility has concealed many of those violations, is the board nonetheless obligated to renew the facility’s expired permit?
The lower court answered in the affirmative. Respondents-Appellants (“Appellants”) contend that the proper answer is no, and that the order of the trial court granting the Petitioner’s Article 78 Petition and ordering the Appellants to issue the renewal permit was in error and should be reversed.
STATEMENT OF THE CASE
Appellants are appealing the February 19, 2003 Order of Justice Francis A. Nicolai, New York Supreme Court, Westchester County, annulling the decision of the Village Board to deny the application of Metro Enviro Transfer LLC, Petitioner-Respondent (“Respondent” or “Metro Enviro Transfer”) herein, for renewal of its special use permit to operate a construction and demolition debris waste transfer station (the “Facility”) located in the Village of Croton-on-Hudson (the “Village”).
Appellants denied Respondent’s application for renewal of its special use permit on January 27, 2003 after a lengthy and deliberate process in which thirteen temporary extensions of the permit were granted in order to allow for review of the Facility’s compliance with applicable requirements. In addition, discussions of the application were held at numerous public meetings of the Village Board of Trustees, and the Village Board received and considered numerous submissions from Respondent’s representatives, consultants to the Village, and citizens. Appellants prepared a detailed Statement of Findings, which – in a particular effort to be factually accurate – they circulated in draft form for comments and corrections to the Respondent and the public. Statement
of Findings, R.A. 1293-1306.
The record on which the Village Board relied in denying Respondent’s permit renewal application, as reflected in part in the Statement of Findings, demonstrated that Respondent had repeatedly violated the special use permit, the Facility’s Operations and Maintenance (“O&M”) Manual (incorporated into the special use permit), the operating permit issued by the New York State Department of Environmental Conservation (“DEC”), and the governing DEC regulations. Id. Respondent admitted or failed to deny the facts concerning many of the violations, including, among others, the acceptance and processing, and in some cases stockpiling, of industrial and other unauthorized waste on multiple occasions, the failure to abide by the permit’s tonnage
limitations, and the failure to train Facility personnel, as required under the permit and the O&M Manual, on the very procedures designed to prevent other violations. Id. In its 14-page Statement of Findings, the Village Board meticulously documented how Metro Enviro Transfer repeatedly violated permit conditions that were meant to protect the public health and safety. R.A. 1301-1303.
Following the Village Board’s decision to deny the permit renewal application, Respondent initiated by Order to Show Cause on February 3, 2003 the instant Article 78 proceeding seeking annulment of the Village Board’s decision. On February 10, 2003, Appellants filed and served their Answer and Opposition to the Article 78 Petition, as well as the 15-volume record of decision. Included in Appellants’ papers before the trial court was an annotated version of the Statement of Findings supporting the denial of the permit renewal application, with citations to the documentary record for each and every factual statement on which the denial was based. Affirmation of Michael B. Gerrard dated February 10, 2003 (“Gerrard Aff.”), Ex. B, R.A.1153-1167.
On February 13, 2003, Justice Nicolai heard oral argument on the Order to Show Cause and Article 78 Petition and granted a stay of the Village Board’s decision pending his decision on the Petition. On February 19, 2003, the court issued a short form order holding that the Village Board’s decision was not supported by substantial evidence and was impermissibly based in part upon generalized opposition that was uncorroborated by any empirical data. Justice Nicolai granted Respondent’s Article 78 Petition, annulled the decision of the Village Board denying the permit renewal application, and remitted the matter to the Village Board for issuance of the permit consistent with his order, subject to reasonable conditions as deemed by the Village Board. Justice Nicolai’s
decision was entered on February 20, 2003 and served upon Appellants on February 25, 2003. On March 4, 2003, Appellants filed a Notice of Appeal, initiating this proceeding.
On July 31, 2003, Appellants filed a motion to supplement the record on appeal in this case with a report entitled “Monitor’s Investigative Report Concerning Metro Enviro Transfer LLC, An Allied Waste Industries Company,” prepared by a federal court monitor, that had only recently become publicly available. On August 28, 2003, this Court denied the motion.
STATEMENT OF RELEVANT FACTS
Respondent began operating the Facility in March 2000 when it obtained a lease to the property from Greentree Realty and purchased the transfer station from Metro Enviro L.L.C. See Gerrard Aff., ¶ 10, R.A. 1116-1117. At that time, the Facility was governed by a three-year Special Use Permit for operation of a construction and demolition debris transfer station that was initially granted to Metro Enviro L.L.C. in 1998. R.A. 1309-1323.
The Special Use Permit contained a number of conditions defining the type and amount of waste that could be processed through the Facility, the operating hours, the permissible operations on site, and certain physical improvements on the Site. The Special Use Permit also required that the Facility comply with all conditions, restrictions and limitations in the Facility’s DEC permit, with the provisions of the O&M Manual, and with the performance standards of the Village Zoning Law. The permit also contained provisions for enforcement in the event of permit violations, and reserved all other Village enforcement powers under the Zoning Code. Gerrard Aff., ¶¶ 3-5, R.A. 1115. The Special Use Permit was issued with the attendant conditions by the Village Board
after review and upon receipt of recommendations by the Planning Board, recommendations from a citizens review committee, and the comments of the public in several public hearings. The permit was heavily negotiated with the applicant, with many of its requested changes incorporated into the permit, and it was issued in part in reliance on statements of counsel for the applicant that noncompliance with the permit would lead to closure of the Facility. Gerrard Aff., ¶ 8, R.A. 1116.
In May 2000, Respondent requested that the tonnage limit for the Facility be increased. That request was denied by the Village Board based on the Facility’s prior violations of the permit’s tonnage limits. Gerrard Aff., ¶ 19, R.A. 1120.
Aware that the Special Use Permit expired in May 2001, Respondent timely requested renewal of the Special Use Permit in March 2001. The Village Board began the careful and considered process of reviewing the permit renewal request. Gerrard Aff., ¶ 12, R.A. 1117-1118. In a June 2001 work session, the Village learned that in connection with the purchase by Metro Enviro Transfer’s parent company, Allied Waste Industries, of certain solid waste management facilities in Westchester County that were subject to the oversight of Walter Mack, Esq., a federal monitor appointed by the Honorable Jed S. Rakoff of the United States District Court, Southern District of New York, the Facility in Croton-on-Hudson had been voluntarily subjected to Mr. Mack’s oversight since March 2000. Gerrard Aff., ¶¶ 20-21, R.A. 1120-1121. The Village was disturbed to learn that Allied had not thought it necessary to inform the Village of that fact earlier. R.A. 1854-1858. Between Respondent’s renewal
request and the Village Board’s denial of that request on January 27, 2003, the Village Board issued thirteen temporary extensions of the permit in order to allow for full consideration of relevant information. The permit renewal request was considered at thirteen Village Board meetings. Gerrard Aff., ¶12, R.A. 1117-1118.
During that consideration, the Village Board became aware of multiple permit violations. It learned of some of them because of the probing of the federal court monitor, some due to the disclosures of Metro Enviro Transfer or Allied Waste personnel (often because they knew that the federal monitor was about to reveal them), and some due to the investigations of representatives of the Board. In each instance, it was apparent that the strong statements regarding the importance of permit compliance were not being carried out in practice, and indeed, had not been for most or all of the time in which Respondent operated the Facility. Also of concern, Allied Waste’s disclosure of many of Respondent’s permit violations came long after the violations, and then apparently only as a
result of facts learned through Mr. Mack’s federal monitorship.
Specifically, although Respondent had already had its request for a tonnage increase denied due to tonnage exceedances, in August 2001 Pete Lindemulder, Regional Vice President of Allied, admitted to the Village Board that the tonnage limits set for the transfer station in the Special Use Permit and the DEC permit were violated on 25 occasions between March 22, 2000 and August 21, 2000. Mr. Lindemulder also admitted that the Site Manager at the Facility falsified the daily tonnage reports given to the Village by manipulating the Facility’s computer system. Gerrard Aff., ¶¶ 20-21, R.A. 1120-1121.
At the Board meeting on February 4, 2002, counsel to Respondent explained that the company would be entering into a consent order with DEC regarding recordkeeping errors, dust problems and tonnage overages. Counsel explained that the tonnage records kept at the loaders did not match the record of tonnage going into the Facility. See Gerrard Aff., ¶ 22, R.A. 1121. On February 11, 2002, the Village Engineer issued a Notice of Violation for maintenance of inaccurate and unreliable tonnage records in 2000 and 2001 and inadequate supervision to prevent unacceptable recordkeeping in violation of Special Use Permit condition 34. R.A. 1325. A twenty-sixth violation of the capacity limit was disclosed in a letter to the Village from David S. Steinmetz, Esq. on February 28,
2002. R.A. 4012-4013. The exceedances of the tonnage limits violated the Special Use Permit (paragraphs 18, 26 and 34), the DEC permit (special condition 9), and DEC regulations (6 N.Y.C.R.R. § 360-1.7). An assurance that the tonnage limits would be obeyed was an important factor in the Village’s initial decision to allow the Facility to operate. See e.g. Letter from Seth Davis (former head of the Citizens Review Committee for the initial permit) to Mayor and Village Board of Croton-on-Hudson of September 9, 2002, R.A. 3051 (“[w]hen my committee was discussing, four years ago, our concerns with Metro Enviro’s proposed operation, nothing was more important to us than adherence to the daily tonnage cap. It was through this mechanism that we were to control the amount of materials that would be brought to the site as well as the number of trucks using our roads.”)
Following the discussions regarding the tonnage exceedance violations, the Board received assurances from Allied Waste and Respondent that they were operating the Facility in full compliance with the Special Use Permit. See Gerrard Aff., ¶ 11, R.A. 1117. However, in June 2002 the Board became aware that Respondent had been violating the terms of the permit concerning the acceptance of unauthorized waste, in that instance vehicle tires, which are unauthorized waste under the permit and if received are supposed to be removed from the site within 12 hours according to the procedures spelled out in the O&M Manual. Respondent admitted that it had not been following that procedure, at least since November 2001, which was almost a year and a half after it began operating the
Facility. At the Village Board meeting on June 10, 2002, Respondent represented that its practice was to store tires on site for weeks at a time until a container was full. That practice was inconsistent with the terms of the permit and the O&M Manual. See Gerrard Aff., ¶ 26, R.A. 1122. Vehicle tires can constitute a fire hazard and are notorious breeding grounds for mosquitoes and other pests, which can carry dangerous viruses throughout a community. Gerrard Aff., ¶ 27, R.A. 1122. The stockpiling of tires constituted a violation of the Special Use Permit (paragraphs 1, 2, 3, 7 and 18), the DEC Permit (Special Condition 16), and DEC regulations (6 N.Y.C.R.R. § 360-1.7). The Village issued a notice of violation. Gerrard Aff., ¶ 28, R.A. 1123.
On August 2, 2002, Respondent informed the Village that Facility personnel knowingly directed industrial waste from the Engelhard Corporation’s Peekskill Films Plant to the Facility, and that the Facility accepted and processed this waste on at least 18 occasions between February 2, 2001 and March 19, 2001. Gerrard Aff., ¶ 30, R.A. 1123-1124. Respondent admitted that Allied supervisory personnel knew that industrial waste was being accepted at the Facility. Letter from David S. Steinmetz, Esq. to Mayor Elliot and Members of the Village Board of Croton-on-Hudson of October 11, 2002, R.A. 1608. On December 2, 2002, the Respondent admitted that on at least 24 other occasions, including four times in 2002, mixed industrial and municipal waste from various locations of
the Engelhard Corporation was processed at the Facility. Gerrard Aff., ¶ 35, R.A. 1125. The Village issued Respondent a Notice of Violation regarding the 18 loads on August 2, 2002 and imposed a $50,000 fine, reserving its rights to take further action. Gerrard Aff., ¶¶ 31-35, R.A. 1124-1125. The Village issued a Notice of Violation regarding the subsequent 24 loads of industrial waste on December 11, 2002. Gerrard Aff., ¶ 46, R.A. 1126. Respondent did not challenge either Notice of Violation and paid the $50,000 fine.
Grant of the initial permit had been recommended in 1998 on the assumption that no industrial waste was ever to be processed at the Metro Enviro Transfer Station. Letter from Seth Davis (former head of the Citizen’s Review Committee for the initial permit) of September 9, 2002, R.A. 3051. If any exceptions to this rule had been contemplated, they would have been totally unacceptable to the citizen’s committee reviewing the permit application. Id.
The Statement of Findings details additional facts found by the Board with regard to the industrial waste violations, including a series of inaccurate and unreliable communications from Respondent to the Board regarding the industrial waste shipments, information gathered by the Board regarding Engelhard Corporation which casts doubt on Respondent’s representations regarding the nonhazardous nature of the industrial waste, and Respondent’s admission that the Ohio facility to which it shipped the industrial waste was not authorized to receive it (a violation of Special Use Permit paragraph 18 and DEC permit Special Conditions 10(c) and 16). Gerrard Aff., Exs. A and B, R.A. 1139-1167. The Board issued a Notice of Violation regarding Respondent’s shipment of waste to a facility
not authorized to receive it on January 27, 2003. Gerrard Aff., ¶ 39, R.A. 1127. Respondent’s acceptance and processing of unauthorized waste was in violation of the Special Use Permit (paragraphs 1, 2, 3, 7 and 18), the DEC permit Special Conditions 10(a) and (b), and DEC regulations (6 N.Y.C.R.R. § 360-1.7).
The Board was especially concerned about the 20-month period during Respondent’s ownership in which unauthorized industrial waste was received, and found that the nature of construction and demolition debris – which the Facility is designed to accept – would make the receipt of certain kinds of unauthorized wastes especially problematic. See generally Gerrard Aff., Exs. A and B, R.A. 1139-1167. On at least two occasions, the waste received at the Facility included pieces of equipment that caught fire on the tipping floor (a snow blower on September 23, 2002 and a small motor on January 16, 2003). See Fire Inspection Report, R.A. 1598-1601; Letter from Michael Altobelli to DEC of Jan. 17, 2003, R.A. 1693. The Croton Volunteer Fire Department
extinguished the snow blower fire. If unauthorized highly flammable waste materials had been present on the floor, it is not clear whether the firefighting efforts would have gone so smoothly. Indeed, one of the kinds of unauthorized waste that Respondent accepted from Engelhard was plastic film that might have combusted if it had been there at the same time as the snow blower or the motor. (Respondent’s papers to the court below trivialized this plastic as the sort of material that is found in Easter baskets, but industrial quantities of Easter basket plastic and burning equipment are not a good combination.) Though Respondent says it cannot be certain just what was included in all of the loads of industrial waste that the Facility accepted from Engelhard, one of their counsel admitted at the January 27, 2003 meeting of the Village Board that some of the loads included test tubes with pigment residue. See R.A. 753.
The O&M Manual emphasizes the importance of employee training as a means of insuring Facility compliance with permit requirements. See O&M Manual, Section 4.1 (“Training is essential to the safe operation and maintenance of this Facility … The program is designed to minimize to the greatest extent possible the potential for receiving unacceptable waste”), R.A. 1362. Concerned with the seemingly never-ending revelations of permit violations, on November 26, 2002 the Village reviewed the training records that are required to be maintained on site pursuant to the O&M Manual, which is incorporated into the Special Use Permit, and pursuant to the DEC permit. This inspection revealed numerous further violations. Gerrard Aff., ¶ 48, R.A. 1131. Specifically: i) no documentation of initial training was maintained at the Facility; ii) monthly safety meetings were not held in 20 of the 32 months that Allied had owned the Facility up to that time; iii) not all employees attended the
monthly meetings that were held; iv) quarterly compliance training had only been held once in the 10 quarters that Allied had owned the Facility up to that time; and v) no training had been conducted by a New York certified asbestos inspector regarding recognition of waste potentially containing asbestos and contaminated soils. Id. The Village issued a Notice of Violation covering these training violations on December 13, 2002. Id.
In addition to the violations noted above, during the time in which Respondent operated the Facility, the DEC Monitor for the Facility noted three additional violations. First, the Facility was cited for processing and mishandling two refrigerators, which are unauthorized waste, on the side of the tipping floor. Gerrard Aff., ¶ 50, R.A. 1132. This conduct violated the Special Use Permit (paragraphs 1, 2, 3, and 7), the DEC permit (Special Condition 10(b)) and DEC regulations (6 N.Y.C.R.R. § 360-1.7.) Second, the Facility was cited for failure to collect leachate when the DEC Monitor observed rainwater coming into contact with material that was outside the building and then running to the railroad tracks without being collected in the leachate collection
tank. See Gerrard Aff., ¶ 50, R.A. 1132. This violated the Special Use Permit (paragraphs 18 and 26), the DEC Permit (special condition 19), and DEC regulations (6 N.Y.C.R.R. § 360-1.7.). Third, Respondent was cited by the DEC Monitor for filing its annual report for 2000 29 days late in violation of Part 360 regulations. See Gerrard Aff., ¶ 50, R.A. 1132. This violated the Special Use Permit (paragraphs 18 and 26), the DEC permit (special conditions 5 and 13), and DEC regulations (6 N.Y.C.R.R. §§ 360-1.7, 360-16.4(i)(1)).
Of additional concern to the Village Board was the apparent delay in reporting to the Village violations of which Respondent’s employees and management were aware. Respondent’s employees were on site and aware of the violations through the entire time that they were occurring. The Village only became aware of the violations well after they occurred, following the investigations undertaken by Walter Mack, the federal court monitor, and by special counsel to the Village Board. R.A. 1297.
Based on all of the above and on the other information in the Record, the Village Board issued a draft Statement of Findings for public notice and comment on December 23, 2002, specifically inviting Respondent to make comments and corrections. Gerrard Aff., ¶ 51, R.A. 1132-1133. On January 15, 2003, representatives from Respondent made a presentation in response to the draft Statement of Findings, and members of the public spoke. The Board also considered the affidavit of Robert Brownell, an expert in solid waste management retained by the Village. R.A. 1730-1733. On January 6, 2003, all parties were notified that the Board would make its final decision on the matter at a special meeting to be held on January 27, 2003. R.A. 2347-2442.
In addition to the testimony provided by Respondent, the Village sought supplemental information relevant to the permit compliance issues from Respondent. Counsel to the Village made requests for information on the record at the Village Board meetings, and sent various letter requests for information to counsel for Respondent. Gerrard Aff., ¶ 41, R.A. 1127-1128. While Respondent provided some of the requested information, much of which was turned over on the evening of Friday, January 24, 2003, it entirely failed to respond to some of the requests and delayed unnecessarily in providing much of the information. Gerrard Aff., ¶¶ 42-47, R.A. 1128-1131; Id. ¶¶ 57-58, R.A. 1135-1136 . Unfortunately, even as of the date of the argument before the
court below, Respondent still had left unanswered many of the Village’s questions and had refused to turn over to the Village full transcripts (or transcripts from which only legitimately proprietary and confidential information has been redacted) of the depositions taken by Walter Mack, the federal monitor, concerning the operations at the Facility, even though it appeared that such transcripts would have been pertinent to the issue of permit renewal. Gerrard Aff., ¶¶ 57-58, R.A. R.A.1135-1136. Although the Village had reason to believe, based on the comments of Mr. Mack at a hearing before Judge Rakoff on December 5, 2002, that certain of the requested depositions address specifically the industrial waste violations and the question of whether additional intentional violations were committed by Respondent’s employees, counsel to Respondent refused to provide copies of the requested depositions, while admitting that the company was free to
provide them if it so desired. Gerrard Aff., ¶¶ 57-59, R.A. 1135-1136.
At the January 27, 2003 meeting Respondent made another presentation and members of the public also expressed their views. Gerrard Aff., ¶ 60, R.A. 1136. All the information supplied by Respondent, both orally and in writing, was considered by the Board in making its decision. The Board considered all of the testimony offered and the credibility of the witnesses, and drew the conclusions reflected in the Statement of Findings. As recited in that Statement, the Board’s decision denying the permit renewal request was grounded in the Board’s powers under the Village Code and the Special Use Permit, and also pursuant to the Board’s powers and duties under N.Y. Municipal Home Rule Law Sec. 10, N.Y. Village Law Secs. 4-412, 7-725-b, 7-700, and 7-704, N.Y.
Environmental Conservation Law Sec. 8-0103, and all other authorities which imbue the Board with the power to protect public health, safety and the environment. Gerrard Aff., Exs. A and B, R.A. 1139-1167.
In deciding to deny the permit renewal application, in the Statement of Findings the Village Board provided a well-reasoned and factually based explanation for its decision. Among the Board’s conclusions were the following:
“The Board is particularly concerned with the knowing acceptance and processing of industrial and municipal waste. The Facility was sited, designed, built and operated as a transfer station for construction and demolition debris. C&DD is primarily solid material such as wood, pipes, bricks, cement, rebar, and the like. Because it is chemically and physically stable, and tends to have physically recognizable forms, it is less heavily regulated than municipal solid waste, hazardous waste or radioactive waste. The environmental laws impose less onerous controls on the handling, transfer and disposal of C&DD than that of these other materials.” R.A. 1304.
“[Metro Enviro Transfer’s expert, Robert D. Barber] testified orally (he did not submit a written report) that the permit violations at Metro Enviro Transfer did not cause injury to health, safety and the environment, and that the Facility has built-in safeguards to prevent such injury in the case of such violations. The Village subsequently retained the services of a leading environmental consulting firm, Malcolm Pirnie Inc. of White Plains, New York to evaluate Mr. Barber’s statement and to render an independent opinion. Mr. Richard Brownell of Malcolm Pirnie has submitted an affidavit differing with Mr. Barber’s assessment, and stating that the kinds of regulations that Metro Enviro Transfer violated were designed to protect health,
safety and the environment, and that the integrity of the regulatory process depends on enforcement of these regulations without respect to whether damage to health, safety or the environment has occurred or can be proven to have occurred. The Board finds Mr. Brownell to be the more credible witness.” R.A. 1304.
“Metro Enviro Transfer has claimed that the unauthorized receipt of industrial and municipal waste at the Facility from Engelhard was caused by Matt Hickey, whose employment with Allied affiliates was terminated for cause in October 2001. Metro Enviro Transfer also stated its belief that five later loads from the same source were not industrial or municipal waste. Despite this, these five later loads were recently acknowledged by Metro Enviro Transfer to be industrial and municipal waste, and 19 other loads of suspected industrial and municipal waste were identified, including some that were shipped in 2002 – well after Mr. Hickey left the company. Several of the plants that are generating the waste loads are known generators of hazardous
waste, but Metro Enviro Transfer states it does not know whether the industrial and municipal waste it accepted from these plants contained hazardous waste. The health and safety of residents of the Village of Croton-on-Hudson was placed in jeopardy by these multiple violations of the special use permit and of the DEC permit at a facility that is designed to accept only C&DD.” R.A. 1304-1305 (emphasis added).
“The Board is also concerned that Allied deliberately diverted this industrial and municipal waste to another transfer station (in Mount Kisco) that was not permitted to accept it, and disposed of it at a landfill (in Ohio) that was not authorized to take it, all in contravention of permit conditions and the laws of two states and at least two municipalities. Such deliberate serial disregard of permit conditions and governing law is intolerable.” R.A. 1305 (emphasis added).
“The violations relating to lack of training are not merely technical transgressions. The training was designed, among other things, to ensure that Facility personnel would exclude unauthorized waste, and would otherwise fully comply with the special use permit.” R.A. 1305.
“The deliberate misreporting of daily tonnage figures in 2000 and the inability of the applicant to reconcile tonnage figures in 2001 is also a major issue. The capacity limit relates to the size of the Facility and to the volume of truck traffic that will travel to the Facility. Thus it is designed to protect the health and safety of the community.” R.A. 1305.
“At the January 15, 2003 hearing, Metro Enviro Transfer officials made a major point of saying that the compensation of top company officials was tied to permit compliance. However, they also admitted that they are not aware that anyone at Allied or at Metro Enviro Transfer has been penalized because of any of the violations that occurred at Croton.” R.A. 1305.
“This Board finds that since March 2000, when Metro Enviro Transfer took over the Facility, the terms and conditions of the special use permit have been violated on multiple occasions and in numerous ways. Metro Enviro Transfer has repeatedly offered words of assurance to this Board that, while the Facility did not comply in the past, it will comply in the future. Further violations have all too frequently negated the effect of those assurances. The Board has reached the point where it can no longer rely on the present assurances of Metro Enviro Transfer that things will improve in the future. A constant stream of violations – some of them disclosed only because of the ongoing investigation of the federal court monitor –
establish that, after almost three years, Metro Enviro Transfer and its parent company, Allied, have not established either the mechanisms or the culture required for environmental compliance. At the January 15, 2003 hearing, the latest in a series of general managers for the Facility – brought on just a month earlier – testified that he had been hired “to create a culture of safe environmentally compliant and healthy and efficient operations.” While that is a laudable goal, it is too late. Allied has had nearly three years to create such a culture, and, as the string of violations demonstrates, it has failed. The time has come for the Village Board to take decisive action to fulfill its duty to protect the health and safety of the community. Metro Enviro Transfer should not be able to postpone the day of reckoning by delaying the production of requested materials or by pledging to do what it has repeatedly promised and
failed to do in the past.” R.A. 1305-1306 (emphasis added).
“None of the applicable sections of the Zoning Code or the Special Use Permit provide that a showing of damage to health, safety or the environment is necessary before the Village may revoke or refuse to renew the Special Use Permit.” R.A. 1297.
An annotated version of the Findings Statement, showing the documentary support for all the statements above and all other facts set forth in the Findings Statements, is in the Record as Gerrard Aff., Ex. B, R.A. 1153-1167.
During the same time that the special use permit renewal application was pending before the Village Board, Metro Enviro Transfer’s DEC operating permit was up for renewal as well. On February 7, 2003, only after the Village Board had denied the special use permit renewal and after the Article 78 Petition had been filed, DEC granted Respondent’s DEC operating permit renewal. Clearly, the DEC permit renewal was not before the Village Board at the time of the Village Board’s decision.
As detailed in the Statement of the Case, above, Metro Enviro Transfer’s Article 78 Petition, Justice Nicolai’s decision, and this appeal followed.
Village Code Provisions
Section 230-56 of the Croton-on-Hudson Village Code governs renewal of special use permits issued by the Village Board of Trustees. It provides:
The grant of a special use permit for the use indicated therein may be conditioned on periodic renewal, which renewal may be granted only following upon public notice and hearing. Such renewal shall be withheld or granted subject to terms and conditions additional to or different from those in the original grant only upon a determination that:
A. The factors which justified the original grant no longer exist or have changed sufficiently to require additional or different terms and conditions; or
B. The terms and conditions of the original special permit have not been or are not being complied with, wholly or in part. A notice of violation pursuant to § 230-81 shall be prima facie evidence of lack of conformity with such terms and conditions.
Special Use Permit Enforcement Provisions
Paragraph 40 of the Special Use Permit for the Facility, R.A. 1320-1322, defines a procedure for revoking the permit if there is even a single violation of any permit condition. Under the sub-paragraph on stop work orders, generally the permittee has five days to cure violations before work can be stopped, but no notice is required where “there are imminent hazards posed to the public health, welfare and the environment, such as acceptance by the applicant of toxic or hazardous waste or garbage or, . . . the applicant has received three notices to remedy violation under this permit.” The next sub-paragraph, on suspension and revocation, states, “[t]he Village Board may suspend or revoke this permit after a public hearing . . . where it finds that the permittee has not
complied with any or all terms of this permit.”
Paragraph 41 of the Special Use Permit (under which the Village Board proceeded) states that the Village “will retain all powers of enforcement available under paragraph 40 and the Village Code, including, but not limited to, the right to order cessation of operations in the event of repeated or uncured violations, as well as the right to assess monetary penalties.”
Respondent had for years acknowledged that violations of its Special Use Permit could lead to the shutdown of the Facility. According to the minutes of the Village Board hearing on May 4, 1998, during his presentation urging the Board to grant the permit, Michael Zarin, Esq., counsel to Metro Enviro L.L.C., stated “if they [Metro Enviro L.L.C.] do not comply with their permit, they will be closed. There are no ifs, ands or buts” and “[t]here is no comparison between this site and the Karta facility. If they look like Karta, they will be shut down immediately.” (The reference was to the Karta C&DD disposal facility in Peekskill.) See R.A. 1821; R.A. 1822. The Board granted the permit shortly after hearing this reassurance from Mr.
Zarin, a partner in the law firm (Zarin & Steinmetz) that represented Metro Enviro L.L.C. and, subsequently, Metro Enviro Transfer in the proceedings before the Village Board. This representation was confirmed in the Village Manager’s letter transmitting the special permit to Mr. Zarin, in which he wrote, “All of the various conditions must be followed very carefully, as a failure to observe each and every condition is grounds for a stop work order and revocation of this permit.” Letter from Richard Herbek to Michael Zarin, Esq. of May 15, 1998 (attaching the special use permit), R.A. 1308; see also May 4, 1998 Minutes, R.A. 1821-1822. A similar statement that violations would lead to the shutdown of the Facility is contained in Section 5.3 of the O&M Manual. R.A. 1368.
Relevant Statutory Authority
The power to attach reasonable conditions to special use permits and enforce such conditions is granted to villages by Section 7-725-b(4) of the N.Y. Village Law (“[t]he authorized board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit”). In addition, the Village’s authority with respect to special use permits is grounded in the grant to local municipalities of the police power in Section 10(1)(ii)(a)(12) of the N.Y. Municipal Home Rule Law (Villages may make laws regarding “government, protection, order, conduct, safety, health and well-being of persons or property”); the grant of powers to village boards in Section 4-412(1) of the Village Law (“the board of
trustees of a village . . . may take all measures and do all acts, . . ., which shall be deemed expedient or desirable for the good government of the village, its management and business, the protection of its property, the safety, health, comfort, and general welfare of its inhabitants”); the grant of zoning power generally in N.Y. Village Law Section 7-700 (“[f]or the purpose of promoting the health, safety, morals, or the general welfare of the community, the board of trustees of a village is hereby empowered, by local law, to regulate and restrict the …. use of buildings, structures and land for trade, [and] industry”); the specification of the legitimate purposes of zoning in N.Y. Village Law Section 7-704 (“[zoning] regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire … and other dangers; to promote health and the general welfare”); and the
intent of the legislature stated in Section 8-0103(6) of the N.Y. Environmental Conservation Law (“to the fullest extent possible the policies, statutes, regulations, and ordinances of the state and its political subdivisions should be interpreted and administered in accordance with” the need to maintain a high quality environment).
THE COURT BELOW APPLIED THE WRONG
STANDARD OF REVIEW
The Village Board’s Decision to Deny the Special Use Permit
Renewal Request Is Entitled to Great Deference
When evaluating the decision of a local board regarding land use determinations such as special use permits or zoning variances, a reviewing court is bound by the narrowed standard of review articulated in a trio of cases issued by the Court of Appeals on July 1, 2002 – Retail Property Trust v. Bd. of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 746 N.Y.S.2d 662 (2002); Ifrah v. Utschig, 98 N.Y.2d 304, 746 N.Y.S.2d 667 (2002); and P.M.S. Assets, Ltd. v. Zoning Bd. of Appeals of Village of Pleasantville, 98 N.Y.2d 683, 746 N.Y.S.2d 440 (2002). Each of these decisions reversed a ruling of the Appellate Division, Second Department that had granted an Article 78 petition challenging a zoning denial. The Court of Appeals’ decisions in these cases, in the
words of a leading commentator, “provide considerable guidance to trial courts and the Appellate Divisions: Decisions by local zoning boards generally should be entitled to great deference, and second guessing of those decisions should be kept to a minimum.” Stewart E. Sterk, Court of Appeals Offers Guidance and A New Approach to Zoning Questions, N.Y. Real Estate L. Rep., Vol. XVI, No. 11, 1 (August 2002); see also Stewart E. Sterk, Judicial Review of Local Zoning Narrows, N.Y.L.J. Vol. 228, S9 (October 7, 2002); John M. Armentano, A Land-Use Trilogy: Cases Show Court is Increasingly Siding with Municipal Boards, N.Y.L.J. Vol. 228, No. 15, 5 (July 24, 2002) (the three Court of Appeals decisions “are an important statement by the courts regarding the extreme deference that courts must afford decisions by local zoning boards.”); John R. Nolon, Local Authority: Communities Have Means of Influencing Land Use, N.Y.L.J.,
Vol. 229, 5 (June 18, 2003) (discusses these three decisions and states, “If the highest court affords these quasi-judicial and administrative review boards such deference, imagine what it does when the local land use decision challenged is made by the local legislature: the town board, village board of trustees, or city council”).
In Retail Property Trust, the Court of Appeals overturned a Second Department decision that misapplied the “substantial evidence” test by improperly substituting its own judgment for that of the Zoning Board of Appeals. 98 N.Y.2d at 196. There, the Appellate Division had reversed the lower court decision in favor of the Zoning Board of Appeals’ denial of a special exception for a shopping mall expansion, finding that expert opinions supporting the board’s decision lacked empirical data sufficient to rebut the applicant’s traffic and air quality analyses, and that the board was influenced by strong community opposition. Id. at 195.
The Court of Appeals held that the Appellate Department erred in disregarding the decision of the Zoning Board of Appeals where substantial evidence supporting the decision existed.
As with board determinations on variances, a reviewing court [on a special exception] is bound to examine only whether substantial evidence supports the determination of the board. Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record. In this case, it appears that the Appellate Division substituted its own judgment for the contrary but equally reasonable determination of the Board of Zoning Appeals. That action was an incursion on the discretion of the Board and cannot be justified where substantial evidence in the record supports the Board’s determination.
98 N.Y.2d at 196 (emphasis added). See also P.M.S. Assets, Ltd. v. Zoning Bd. of Appeals of Village of Pleasantville, 98 N.Y.2d 683, 685, 746 N.Y.S.2d 440, 441 (2002) (“the determination of a zoning board regarding the continuation of a preexisting nonconforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result”); PDH Properties, LLC, v. Planning Bd. of the Town of Milton, 298 A.D.2d 684, 748 N.Y.S.2d 193, 193-94 (3d Dept. Oct. 17, 2002) (“If the local board’s determination is supported by substantial evidence, it must be upheld even if substantial evidence supports a contrary conclusion.” (citations omitted)).
Where community opposition is apparent on the record, the reviewing court must still evaluate whether the local board acted rationally based upon substantial evidence. Thus, the existence of community opposition does not negate the effect of other substantial evidence supporting the decision.
Although there was strong community opposition to the proposed expansion, that fact merely provides the backdrop for the dispute; it does not define the quality of the evidence presented. Through the reports of objectors’ traffic and air quality experts, the opposition presented valid scientific bases for rejecting the expansion plan, which the Board in its discretion was authorized to credit. The evidence in this case presented a close, fact-specific choice of the kind that local boards are uniquely suited to make. Giving the Board of Zoning Appeals the deference to which it is entitled under such circumstances, we conclude that it acted rationally and with the support of substantial evidence in denying petitioner’s
application for a special exception permit.
Retail Property, 98 N.Y.2d at 196 (emphasis added). See also Ifrah v. Utschig, 98 N.Y.2d at 308, 746 N.Y.S.2d at 669 (2002) (finding board’s determination supported by “objective and largely undisputed factual evidence in the form of written and oral testimony … corroborated by the documentary evidence supplied to the Board,” in addition to generalized objections by neighbors).
Since the Court of Appeals issued its decisions in Retail Property, Ifrah, and PMS Assets, numerous appellate decisions have similarly given local boards due deference where substantial evidence supporting the decision exists on the record. See e.g. Dries v. Town Bd. of Town of Riverhead, 305 A.D.2d 596, 759 N.Y.S.2d 367 (2d Dept. May 19, 2003) (upholding town board’s denial of special exception permit where sufficient grounds appear in the record, in spite of presence of community opposition); Wickes v. Kaplan, 304 A.D.2d 769, 758 N.Y.S.2d 383 (2d Dept. April 21, 2003) (finding supreme court improperly substituted its own judgment for that of zoning board in reversing zoning board determination regarding legal nonconforming use); Snake Hill Corp. v. Town
Bd. of Town of Clarkstown, 304 A.D.2d 670, 757 N.Y.S.2d 484 (2d Dept. April 14, 2003) (upholding town board’s denial of special use permit where rational basis for determination is found in the record); see also Francis Dev. & Mgmt. Co. v. Town of Clarence, 306 A.D.2d 880, 761 N.Y.S.2d 760 (4th Dept. June 13, 2003) (upholding town board decision denying special exception use permit application where decision finds support in the record); Feinberg v. Bd. of Appeals of the Town of Sanford, 306 A.D.2d 593, 759 N.Y.S.2d 706 (3d Dept. June 5, 2003) (where local board’s decision finds support in the record, reviewing court may not substitute its judgment for that of the local board, even if a contrary determination is supported by the record); Homeyer v. Town of Skaneateles Zoning Bd. of Appeals, 302 A.D.2d 941, 754 N.Y.S.2d 611 (4th Dept. Feb. 7, 2003) (upholding zoning board denial of variance where rationally based
on the record); Partition Street Corp. v. Zoning Bd. of Appeals of the City of Rensselaer, 302 A.D.2d 65, 752 N.Y.S.2d 749 (3d Dept. 2002), appeal denied, 99 N.Y.2d 511, 760 N.Y.S.2d 102 (2003) (upholding zoning board notice of violation of zoning regulations where finding is rational and supported by substantial evidence, even if court would have reached a different result).
The Court Below Did Not Accord the Village Board
the Deference to Which It Was Entitled
In granting the Article 78 Petition here, Justice Nicolai wrote:
While the [Village and Village Board] maintain that the violations of the special use permit constitute sufficient and substantial evidence supporting the denial of the permit renewal, they failed to recognize that the violations have been cured, penalties have been assessed and paid, and [Metro Enviro Transfer] has implemented measures to assure ongoing permit compliance. Moreover, [the Village and Village Board] and its expert have failed to point to any evidence that an adverse environmental condition has resulted from the almost five years of operation of the Metro Enviro Transfer’s [sic] facility. In fact, on February 7, 2003, the DEC – the state agency with regulatory control and jurisdiction over this solid waste management facility
– renewed [Metro Enviro Transfer’s] permit for five years and increased the maximum capacity of waste that the transfer station may accept to an average of 1,000 tons per day. While the Village is not bound by the DEC renewal, the issuance of the DEC permit indicates to this Court that corrective action has been taken and that Metro Enviro Transfer’s violations did not pose a threat to the health, safety and general welfare of the public or the environment.
Under the totality of circumstances present herein, the Court finds that the Board’s denial of the permit is not supported by substantial evidence. The determination by the Village Board has been impermissibly based, in part, upon generalized opposition, which remains uncorroborated by any empirical data.
Metro Enviro Transfer LLC v. Village of Croton-on-Hudson, Index No. 03/1788 (Sup. Ct. Westchester Co. Feb. 19, 2003) at R.A. 8-9
The court below (i) applied the wrong test by insisting on evidence of adverse environmental impact from the permit violations; (ii) substituted its own judgment for that of the Village Board; and (iii) went beyond the record on which the Village Board’s decision was based by considering action taken by DEC after the decision of the Village Board. As detailed below, in so doing, the court failed to evaluate whether the Village Board acted rationally and with the support of substantial evidence of permit violations in denying the special use permit renewal application. Rather, the lower court impermissibly reached its own conclusions regarding the transfer station and failed to afford the Village Board the deference to which it was entitled.
THE VILLAGE BOARD’S REFUSAL TO RENEW METRO
ENVIRO TRANSFER’S EXPIRED PERMIT WAS RATIONAL
AND BASED ON SUBSTANTIAL EVIDENCE
The Record Contained Ample Evidence Showing Violations
of Permit Rules Designed to Protect Public Health and Safety
The Village Board based its denial of the permit renewal application on its consideration of the operating history of the transfer station, the record of permit violations, the presentations of Metro Enviro Transfer and its representatives, the opinion of the Village’s expert, and the comments of the public. As shown above, the record is replete with documentation of the numerous and repeated permit violations committed by Metro Enviro Transfer, including tonnage exceedances, falsified daily tonnage reports, receipt of unpermitted industrial and municipal waste, prohibited stockpiling of tires, and the failure to carry out required training of facility personnel that is designed to prevent permit violations. See Statement of Findings, R.A. 1293-1306; Annotated Statement of
Findings, Gerrard Aff., Ex. B, R.A. 1153-1167. Metro Enviro Transfer either admitted or failed to deny the facts underlying all of the permit violations noted in the Village Board’s Statement of Findings.
The permit conditions limiting the materials the facility can accept are grounded in public health concerns. The record contains the SEQRA negative declaration issued by the Village Planning Board in 1995 when it was considering an application by another entity to establish an operation similar to that later established by Metro Enviro. R.A. 2681-2684. The limitations on materials are discussed under the heading “Public Health”, and it is stated that “[a]ll employees will be trained in the identification and handling and removal of unauthorized materials which arrive on site. Likewise, all employees will be trained concerning safety, spill contingency and emergency evacuation.” Id. The Planning Board’s resolution stated,
“Due to the special and potentially hazardous nature of the operations proposed by the applicant, the applicant has consented to permit a representative of the Village on site … to assure compliance with the conditions of this site plan approval and any DEC permit.” R.A. 2686 at ¶17.
The record also contained the affidavit of Richard P. Brownell, Vice President of Malcolm Pirnie, Inc., an expert with over 20 years of experience in solid and hazardous waste projects who was retained by the Village Board to evaluate the record of violations at the Facility. The Village Board was entitled to consider and rely on the conclusions of Mr. Brownell, including the following:
Because environmental regulations at the federal, state and local levels are developed with the express purpose of creating standards that are protective of human health and the environment, violations of such regulations and requirements have the potential to result in damage to health and the environment and must be dealt with seriously, particularly where they are repetitive. Affidavit of Richard P. Brownell dated January 27, 2003 (“Brownell Aff.”), ¶ 4, R.A. 1731.
Permitting entities such as the Village Board have a responsibility when issuing or renewing permits to minimize the likelihood of impact to the environment and public, including by reviewing the facility’s compliance history as an indicator of the permittee’s ability to comply with environmental regulations and permits and be a partner with the Village Board in fulfilling its obligations to the public and to overall environmental protection. Brownell Aff., ¶ 5, R.A. 1731.
Mr. Brownell disagreed with Metro Enviro Transfer’s consultant’s statements to the effect that the permit violations did not result in adverse impact on the health, safety and welfare of the citizens, concluding instead that “the known violations signify a facility that continually promises to improve but nonetheless persistently violates regulations that are designed to protect health and the environment.” Brownell Aff., ¶ 6, R.A. 1733.
With regard to the industrial waste violations, Mr. Brownell concluded that Metro Enviro Transfer’s “disregard for environmental regulation, permits and permit conditions of multiple facilities and the regulations of two states significantly weakens the credibility of Metro Enviro Transfer to be a partner with the permitting bodies in fulfilling its obligations,” and that “the public was fortunate that, on the multiple occasions when Metro Enviro Transfer disregarded permit conditions, there does not appear to have been any immediate impact … Compliance with permit conditions is not an option that becomes applicable only after an adverse impact has occurred.” Brownell Aff., ¶ 5(a), R.A. 1731-1733.
Similarly, the industrial waste violations “suggest that the facility personnel were not adequately trained to recognize and react to the potential dangers to themselves and the community associated with mishandling unauthorized waste. This lack of attention to training employees on the important matter of unauthorized wastes surely does not demonstrate any commitment to fulfilling its obligations to the permitting entity, to the public and to the protection of the environment.” Brownell Aff., ¶ 5(b), R.A. 1732-1733.
Unable to deny the violations, Metro Enviro Transfer argued to the lower court that the Village Board could not deny the permit renewal request without evidence of adverse environmental impact and in light of Metro Enviro Transfer’s efforts to remedy the violations. The lower court erred by largely adopting Metro Enviro Transfer’s argument and disregarding the rational basis for the Village Board’s decision – the substantial evidence of repeated permit violations that posed a threat to public health and safety.
The Village Board was entitled to rely on the substantial evidence of permit violations, its knowledge of the public health and safety rationales for imposition of the permit conditions, and the sworn testimony of Mr. Brownell confirming the threat to public health and safety raised by the types of permit violations repeatedly committed by Metro Enviro Transfer. In addition, the Village Board was intimately aware of its own history in dealing with Metro Enviro Transfer and its predecessor operators at the Facility. Perhaps most telling was the change of heart expressed by Trustee Georgianna Grant, who had voted in favor of the special use permit for the Facility in 1998. After yet another revelation of permit violations by Metro Enviro Transfer at a Village Board meeting on September 9,
2002, she expressed the lack of trust caused by Metro Enviro Transfer’s repeated violations.
It’s no question that I have been an accepter of Metro Enviro over the years. I made the vote three years ago to grant the first permit and I did it knowingly, however, over much community opposition. I did it because I felt it was the best thing to do for the Village of Croton. I felt they had a right to be there. Some people disagreed. I felt they had a right to be there and the least we could do was give Metro Enviro an opportunity to operate and become a good neighbor. I believed that it would be done….
Did it work out the way I hoped it would? The way I believed it would? No. Obviously there have been violations there. These last ones being the most serious.
[To Mr. Steinmetz]: The time has come for you to go back to your client and to tell your client for me, and they know my name because I have been down there 40 or 50 times, that my trust has been betrayed and I resent that and I do not want that to happen. They betrayed my trust. No amount of money, no fine could ever pay for the damage done by a betrayal of trust.
. . . I am sick and tired of having my trust betrayed. Corporate responsibility falls over onto Allied as well.
I was willing to take the first excuse that it was a rogue employee who had fudged the numbers for the tonnage. I was willing to take the second excuse that you didn’t know you were not supposed to take tires. I am not willing to take this third excuse [regarding the industrial waste violations]. The damage has been done, and I think it will be clear to you and you will understand why the questions have been so pointed tonight, why we will insist upon proof positive, no longer your word.
September 9, 2002 Village Bd. Mtg. Tr., R.A. 2154-2156.
Permit Renewals May Be Denied For Permit Violations
The court below erred in annulling the Village Board’s decision, which was based on substantial evidence of permit violations, by failing to distinguish between the criteria governing the granting versus the renewal of a special use permit. Once a special use permit is granted, a permitting authority such as the Village Board is entitled to expect compliance with the permit conditions, and to exercise its enforcement power – including the right to deny permit renewal. Indeed, numerous courts have recognized that permit renewals may be denied as a result of permit violations. See Bell v. Szmigel, 171 A.D.2d 1032, 1033, 569 N.Y.S.2d 36, 37 (4th Dept. 1991) (zoning board was justified in denying an application for a renewal of a special use permit because of
violations of the conditions imposed on temporary permit); Village of Hudson Falls v. DEC, 158 A.D.2d 24, 29, 557 N.Y.S.2d 702, 705 (3d Dept. 1990), aff’d, 77 N.Y.2d 983, 571 N.Y.S.2d 908 (1991) (“In the absence of a material change in conditions or a violation of the terms of a permit, a renewal should be granted without undue burdens imposed upon the applicant” (emphasis added)); Atlantic Cement Co. v. Williams, 129 A.D.2d 84, 88, 516 N.Y.S.2d 523 (3d Dept. 1987) (“Generally, in the absence of a material change in conditions or evidence of a violation of the terms of the permit, a renewal should be granted without unduly burdening the applicant.”) (emphasis added); see also Northside Salvage Yard, Inc. v. Bd. of Appeals of the Town of Pittsford, 199 A.D.2d 1001, 608 N.Y.S.2d 13 (4th Dept. 1993) (determination to revoke special permit to operate used car lot not supported by substantial evidence
where there was no showing that petitioner violated the conditions of the permit).
The key permit violations (accepting tonnage in excess of the permit’s maximum, accepting prohibited industrial waste, and accepting and storing waste tires) share four common characteristics, as shown by the foregoing Statement of Facts:
1. They were not isolated incidents. Each of the three types of violations occurred repeatedly and over an extended period of time.
2. They were not mere technical, minor violations. They went to the heart of the permit conditions, which were designed to minimize the impacts and risks that the Facility causes to its community.
3. They were not accidents. They were all deliberate, knowing acts.
4. They were not the actions of low-level employees who might not be expected to be aware of the permit conditions. They were all directed or authorized by the facility manager or his superior.
Overlain on all of this is a persistent failure to carry out the training that should have prevented these violations from occurring. In the face of such a record, surely the Village was not powerless to exercise its judgment in refusing to renew the permit; and once Respondent received its special permit, it did not acquire an irrevocable right to violate that permit into perpetuity.
THE COURT BELOW RELIED ON SEVERAL IMPERMISSIBLE
GROUNDS FOR GRANTING THE PETITION
It Is Not Necessary To Prove That Injury Has Already
Occurred Before Taking Preventive Action
The court below based its holding in part on the assertion that “Respondents [the Village Board and Village] and its expert have failed to point to any evidence that an adverse environmental condition has resulted from the almost five years of operation of the Metro Enviro Transfer’s facility,” Metro Enviro Transfer LLC v. Village of Croton-on-Hudson, Index No. 03/1788 (Sup. Ct. Westchester Co. Feb. 19, 2003) at R.A. 8, without citing any legal authority for the requirement that an adverse environmental condition be proven before a permit renewal application can be denied. Because it was not necessary for the Village Board to prove that injury has already occurred before taking preventative action, the court erred. This is especialy so where Metro Enviro Transfer had a
practice of failing to disclose its violations for long periods of time.
The standards for issuance of a special use permit no longer govern once the permit has been repeatedly violated. As seen above, proof of permit noncompliance is sufficient ground to deny a permit renewal. Neither the relevant case law, the governing statutes nor the Village Code contain the requirement that the Village Board prove actual environmental harm in order to deny the renewal application. Indeed, the imposition of such a requirement would eviscerate the very purpose of the permit conditions that were imposed consistent with Village Code Section 230-62 to prevent the risk of harm to the health, safety and welfare of the Village residents or the environment in advance of the harm actually occurring. Mr. Brownell explained the importance of enforcing the permit
conditions in the affidavit he prepared for the Village Board.
Enforcement of environmental regulations and associated permit conditions is the obligation of the permitting entities as stewards of the environment. In addition, enforcement serves the purpose of assuring the public that their health is being protected through adherence to environmental regulations and permit conditions. Effective enforcement would be crippled if government authorities could not act against facilities that violated their permits without proof of adverse environmental impact; if small to modest financial penalties (on the order of tens of thousands of dollars) were the only available remedy, then noncompliance could be seen as just another cost of doing business.
Brownell Aff., ¶ 4, R.A. 1731.
Moreover, courts have not imposed on municipalities in zoning enforcement contexts the requirement that a board must demonstrate actual harm before enforcing zoning laws. See e.g. 4M Holding Co. v. Town Bd. of the Town of Islip, 185 A.D.2d 317, 586 N.Y.S.2d 286 (2d Dept. 1992) (municipality can take action to remove danger to the public upon a reasonable finding that there is a danger to health and safety); Town of Islip v. Clark, 90 A.D.2d 500, 454 N.Y.S.2d 893 (2d Dept. 1982) (no showing of special damage or injury to the public is required before a town can enforce its zoning ordinances); State of New York v. Brookhaven Aggregates, Ltd., 121 A.D.2d 440, 503 N.Y.S.2d 413 (2d Dept. 1986) (court ordered landfill to cease operations pursuant to ECL §
71-0301 without any showing of harm to the public); Incorporated Village of Freeport v. Jefferson Indoor Marina, Inc., 162 A.D.2d 434, 556 N.Y.S.2d 150 (2d Dept. 1990) (under Village Law § 7-714, “damage to the public” need not be alleged for a municipality to obtain injunctive relief to enforce its zoning ordinances).
Had actual injury occurred, Metro Enviro Transfer might have been guilty of the crime of endangering public health, safety or the environment in the second degree under N.Y. Environmental Conservation Law § 71-2713.1, which is a Class D felony. The Village did not accuse Metro Enviro Transfer of a felony, and it did not have to do so in order to exercise its powers to refuse to renew the special permit. Whether or not the Village “lucked out” and did not suffer environmental damage from violations of conditions that were clearly designed to protect health, safety, and the environment is not, and cannot be, the test for whether it can take action.
There Was No Assurance That All Violations Had Been
Cured And Resolved
The lower court erred in concluding that the Village Board “failed to recognize that the violations have been cured, penalties have been assessed and paid and [Metro Enviro Transfer] has implemented measures to assure ongoing permit compliance.” Metro Enviro Transfer v. Village of Croton-on-Hudson, Index No. 03/1788 (N.Y. Sup. Ct. Westchester Co. Feb. 19, 2003) at R.A. 8. On the contrary, a review of the factual record before the Village Board at the time that it denied the permit renewal application reveals that the Village Board took account of all of those factors but justifiably derived little comfort from them.
First, the permit violations spanned virtually the entire time period in which Metro Enviro Transfer has owned and operated the Facility. However, the permit violations were only disclosed well after they occurred – with the disclosure of the tonnage violations and the industrial waste violations occurring only as a result of the investigations undertaken by the federal monitor, and the disclosure of the training violations occurring only as a result of investigation undertaken by the Village Board’s special counsel. See Time Line for Metro Enviro Transfer and Graphic Representation thereof, Gerrard Aff., Exs. F and G, R.A. 1213-1218; Statement of Findings, R.A. 1297-1301. At the time that the Village Board denied the special use permit renewal, it had no
assurances that Metro Enviro Transfer had a system in place to detect and report violations – other than the familiar representations heard all too often from Metro Enviro Transfer that it had hired new personnel to create a culture of compliance. Statement of Findings, R.A. 1306. There was an established pattern that violations did not come to light for months or even years after they occurred, and often only as a result of the investigations of the federal court monitor or the Village’s special counsel. The absence of new known violations that occurred in the month or two preceding the decision below is far from proof that the Village Board was irrational in its skepticism that other violations had occurred or would occur.
Second, the training violations found by the Village Board were not mere technical transgressions. The O&M Manual emphasized the importance of employee training as a means of ensuring Facility compliance with permit requirements. See O&M Manual, Section 4.1, R.A. 1362-1363; Gerrard Aff., ¶ 49, R.A. 1131. However, despite the discovery that permit violations had been committed throughout Metro Enviro Transfer’s ownership of the Facility, the training failures continued at least until December 2002, when the Village issued a notice of violation and Metro Enviro Transfer made belated offers to remedy what it argued was not a violation at all. See Gerrard Aff., Exs. F, G, R.A. 1213-1218; id. Ex. M, R.A. 1224-1228; Letter from Michael
Altobelli to Richard Herbek of December 18, 2002, R.A. 1648-1652. Thus, the Village Board could take little comfort that Metro Enviro Transfer appreciated even at that late date the importance of permit compliance.
Third, in each instance where the Village issued a notice of violation to or imposed a penalty on Metro Enviro Transfer, such action was taken with a reservation of the Village Board’s rights to take further action in accordance with the terms of the permit and the Village Code as the situation warranted. See Gerrard Aff., Exs. H-M, R.A. 1219-1228. There is no merit to the suggestion that the fact that penalties were paid would mean the end of the Village Board’s enforcement reach; Metro Enviro Transfer did not buy the right to continue to violate its permit by paying a Fine.
A. The Presence Of Generalized Public Opposition Does Not Invalidate
A Decision Where Substantial Evidence Is Present
The lower court apparently based its decision in part on the presence of community opposition, without citing to any specific concerns in the record. “Under the totality of circumstances present herein, the Court finds that the Board’s denial of the permit is not supported by substantial evidence. The determination by the Village Board has been impermissibly based, in part, upon generalized opposition, which remains uncorroborated by any empirical data.” Metro Enviro Transfer LLC v. Village of Croton-on-Hudson, Index No. 03/1788 (Sup. Ct. Westchester Co. Feb. 19, 2003) at R.A. 9.
Community opposition was certainly present, but that does not invalidate the decision. The question is whether there was substantial evidence to support the decision. See generally Retail Property, 98 N.Y.2d at 196 (“Although there was strong community opposition to the proposed expansion, that fact merely provides the backdrop for the dispute; it does not define the quality of the evidence presented. … the opposition presented valid scientific bases for rejecting the expansion plan, which the Board in its discretion was authorized to credit. The evidence in this case presented a close, fact-specific choice of the kind that local boards are uniquely suited to make.”); see also Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 669 (2002)
(finding board’s determination supported by “objective and largely undisputed factual evidence in the form of written and oral testimony … corroborated by the documentary evidence supplied to the Board,” in addition to generalized objections by neighbors); Dries v. Town Bd. of Town of Riverhead, 305 A.D.2d 596, 759 N.Y.S.2d 367 (2d Dept. May 19, 2003) (upholding town board’s denial of special exception permit where sufficient grounds appear in the record, in spite of presence of community opposition); Home Depot, USA Inc. v. Town of Mt. Pleasant, 293 A.D.2d 677, 741 N.Y.S.2d 274 (2d Dept. 2002), appeal denied, 99 N.Y.2d 507, 757 N.Y.S.2d 817 (Feb. 13, 2003) (denial of site plan approval not based on general objections or conclusory findings where specific findings supported by substantial evidence). The decision by the Village Board (as embodied in the Statement of Findings, R.A. 1293-1306) was not at all based on community
opposition – it was based on the long stream of violations and the dangers they posed.
B. DEC’s Decision, Made After The Challenged Village Board
Action, Does Not Preempt That Action
The court below erred in basing its annulment of the Village Board’s decision in part on action taken by the DEC after the Village Board decision (and thus outside the scope of the record before the Board), and which in any event did not control the Village Board’s options with respect to the Facility. The law is clear that neither DEC action nor inaction constrains the Village Board’s authority over the Special Use Permit or relieves the Village Board of its obligations under the Village Code. The Village’s permit is independent of DEC’s, and the Village is entitled to determine the consequences of its permit holder’s massive noncompliance with the Village’s permit, irrespective of DEC’s determination under DEC’s own separate
Certainly, DEC did not make – and lacks any authority to make – any fact determinations regarding Metro Enviro Transfer’s compliance with the terms of the Special Use Permit. Accordingly, the Village Board’s independent rational decision regarding renewal of the special use permit based on the substantial evidence before it was not bound by the DEC action. To the contrary, as a result of its violations of DEC regulations, Metro Enviro Transfer entered into two Orders on Consent with DEC addressing the record falsification and certain of the tonnage exceedances, as well as the industrial waste shipments. The first Order on Consent, dated March 26, 2002, recites the following findings in the Whereas clause:
4. The Department Staff has determined … that the Respondents [violated DEC regulations] … by failing to take adequate measures to prevent and control dust at the facility during cold months, (i.e., during the period in which the sprinkler system cannot be used, from approximately mid-November through mid-April). …
5. In addition, the Department Staff has determined by correspondence received from the Respondent Allied, that said Respondent Allied violated Special Condition #9 of the operating permit by accepting more than 4,200 tons of waste per week on five occasions in the year 2000.
6. In addition, the Department Staff has determined … that the Respondents violated [DEC regulations] by failing to keep daily receipts on the facility premises, and … by failing to maintain facility records for all materials handled at the facility. Specifically, the Respondent Allied failed to maintain records, categorized by date, which would account for discrepancies in tonnage figures for incoming and outgoing wastes.
March 26, 2002 DEC Consent Order, R.A. 1710-1711. The second Order on Consent, dated December 19, 2002, found that the receipt of unauthorized industrial waste at three Allied-owned facilities – Metro Enviro Transfer and the Suburban Carting transfer stations in Mount Kisco and Mamaroneck – and the failure to report the unauthorized wastes in the facilities’ annual reports violated the terms of the facilities’ DEC permits and DEC regulations. December 19, 2002 DEC Consent Order, R.A. 1721-1722. Both consent orders required Metro Enviro to undertake corrective action. Gerrard Aff., ¶ 23, R.A. 1121-1122; id.¶ 36, R.A. 1125-1126. Although DEC did not choose to do so, DEC clearly could have exercised its enforcement authority to deny renewal of the DEC
Moreover, DEC does not enjoy exclusive jurisdiction over the regulation of solid waste facilities and its actions do not preempt the Village Board’s decision regarding the special use permit. N.Y. Environmental Conservation Law § 27-0711 is a non-preemption provision that explicitly states that local governments may regulate solid waste facilities more stringently than DEC. See Niagara Recycling v. Town of Niagara, 83 A.D.2d 316, 330, 443 N.Y.S.2d 939 (4th Dept. 1981) (ECL § 27-0711 “expressly preserves the rights of local municipalities to adopt local laws pertaining to solid waste facilities not inconsistent with any provision in title 7 of Article 27”). In Albany-Greene Sanitation, Inc. v. Town of New Baltimore Zoning Bd. of
Appeals, 263 A.D.2d 644, 692 N.Y.S.2d 831 (3d Dept. 1999), the Third Department upheld a zoning board decision denying a solid waste transfer station a special use permit where the decision was based on substantial evidence, and even though the solid waste transfer station had obtained a SEQRA negative declaration and a DEC permit. “Because local land use matters are within the exclusive responsibility of the Zoning Board . . . DEC’s negative declaration was in no way binding on the Zoning Board’s determination[.]” Id., 263 A.D.2d at 646. “[W]hile the zoning board may consider DEC’s approval of petitioner’s proposed waste transfer station, it is not bound by it.” Id. See also All Weather Carting Corp. v. Town Board of the Town of Islip, 137 Misc. 2d 843, 522 N.Y.S.2d 425 (Sup. Ct. Suffolk Co. 1987) (upholding decision by town to revoke solid waste removal and disposal permit upon
receipt of information about permit holder’s criminal activity); B. Manzo & Son, Inc. v. DEC, 285 A.D.2d 504, 505, 727 N.Y.S.2d 173, 174 (2d Dept. 2001) (upholding closure of transfer station in light of violations of conditions of consent order).
For the foregoing reasons, the Court should grant Respondents-Appellants’ appeal, reverse the decision below, and deny Petitioner-Respondent’s Article 78 Petition.
DATED: New York, New York
September __, 2003
ARNOLD & PORTER
Michael B. Gerrard
Kerry A. Dziubek
399 Park Avenue
New York, New York 10022-4690
Attorneys for Respondents