1A Croton Point Avenue
On December 6, 2007, the Appellate Division of the Supreme Court decided the two appeals pending in the litigation between the Village and Northeast Interchange Railway (NIR) and Greentree Realty over 1A Croton Point Avenue.
In the first appeal, Greentree and NIR asked the Appellate Division to lift the injunction Judge Nicolai had imposed prohibiting the operation of a waste facility at 1A Croton Point Avenue until a special permit was obtained. Greentree's argument in the Appellate Division was that because a waste facility was a prior nonconforming use, it was entitled to continue indefinitely and did not need a special permit. The Appellate Division, while recognizing that the Croton-on-Hudson Code does not require a special permit to continue a non-conforming use, refused to lift the injunction. Rather, it modified it and enjoined the operation of a waste facility at the site until either the Village or a court determines that a waste facility is a permitted use at the site or a use variance is obtained. In other words, either
the Village or a court has to decide that a transfer station may be operated as of right, or a potential transfer station operator would have to get a use variance. In refusing to lift the injunction, the court rejected Greentree's argument that the waste facility was a prior nonconforming use entitled to continue indefinitely without any Village approval.
Appeal No. 2
Under the Croton-on-Hudson Code, if a legal nonconforming use is discontinued for a period of 12 months, it cannot resume. The Appellate Division ruled, in the second appeal, that the time during which waste operations at the site are enjoined by court order (as they have been by Judge Nicolai's injunction and now the Appellate Division's) cannot be counted in that 12 month period.