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Board of Trustees Minutes 09-07-04
A Special Information Meeting of the Board of Trustees of the Village of Croton-on-Hudson, NY was held on Tuesday. September 7, 2004 at the Stanley H. Kellerhouse Municipal Building, 1 Van Wyck Street, Croton-on-Hudson, NY 10520.

The following officials were present:
        Mayor Elliott                   Trustee Schmidt         
        Trustee Wiegman             Trustee Kane
        Manager Herbek          Trustee Grant
        Attorney Waldman                Treasurer Zambrano      

        Also Present: Special Counsel Michael Gerrard

        Mayor Elliott called the meeting to order at 8:07 pm.  Everyone joined in the Pledge of Allegiance.


Mayor Elliott introduced the meeting as a public information meeting about Metro Enviro LLC and their request to renew their 1998 special permit.  He also introduced Mr. Michael Gerard, Special Counsel to the Village on this matter.  Mayor Elliott stated that Mr. Gerrard would make a presentation, followed by Manager Herbek.  The public will then have an opportunity to ask questions of the speakers.  Mayor Elliott stated that no decision on this will be taken tonight and if any is to be taken, a public hearing will be called.  
Mr. Gerrard made a presentation from prepared material (attached to these minutes).  At the point where he discussed fees, Manager Herbek put an enlarged chart on the bulletin board and Mr. Gerrard walked the audience through the chart (attached to the minutes).
Mr. Gerrard then spoke to a flow chart prepared by Trustee Wiegman which was handed out to the audience and an enlarged copy placed on the bulletin board (attached to the minutes). After Mr. Gerrard concluded his prepared presentation, Manager Herbek made a presentation on potential financial benefits to the Village of a proposed settlement with Metro Enviro.  His prepared summary was distributed to the audience and put on the bulletin board (attached to the minutes).  Mayor Elliott stated the Mr. Gerrard would take questions about the information presented.  

Pat Barua,  Morningside Dr.-  Ms. Barua asked if the village were to lose the suit, would we be able to impose the transfer impact fee? Mr. Gerrard stated it would be very difficult, can impose fees in conjunction with actual expense like a monitoring fee, but a fee to reimburse for an undesirable presence in the village is not likely.  Would fines still be in the picture?  Mr. Gerrard said yes; there is no proposed fine schedule in the proposed agreement but in the past substantial fines were imposed.  Will there another opportunity to ask Mr. Gerrard further questions? - no.  Will a decision be made on the night of the Public Hearing? Mayor Elliott stated it would be up to the Village Board but he thought it was likely. Ms. Barua referred to Mr. Gerrard’s opinion  that the odds of prevailing in the Court of Appeals are good but if we win and shut Metro Enviro down, and if someone else wants to operate another transfer station, our odds would not be as good since they would be a new user without a history of prior violations.  Ms. Barua asked how a new entity could have a C&D station in this Light Industrial district.  Mr. Gerrard explained the possible scenarios for this to happen and the likely arguments both for and against them.

Antoinette Cosantino, 4 Van Cortlandt Place -  The argument seems to be that we wouldn’t know what we are getting if a new C&D operation comes and there would be substantial benefits with dealing with the Metro Enviro transfer facility. Mr. Gerrard said the site will always be there as long as it is in private ownership so no scenario predicts what the owners would wish to do there in the future.  If the village allows Metro Enviro to go forward, and a violation occurs, would the village make another agreement with them; don’t know.  What are the allowable uses in this zone?  Mr. Gerrard read the definition of Light Industrial uses from the code. Could there be potential for uses with chemicals?  Mr. Gerrard responded to this question.

James Moore,  56 Irving Ave. – Mr. Moore asked for clarification of item B on the chart.  Mr. Gerrard explained it.

Maria Cudequest, 84 Grand St. – Ms. Cudequest asked clarification that both parties asked the Appellate Court to delay their decision. Mr. Gerrard said that was true in order to allow negotiations to proceed.  Trustee Schmidt stated he was not in favor of that.  Ms. Cudequest stated that there was an agreement that if the village won the suit, Metro Enviro would be closed. Ms. Cudequest said the record shows that these people will not change – ask Mt. Kisco, read the Mack report or Allied’s rap sheet from Mt. Kisco.

Susan Konig, 37 Elmore – Ms. Konig asked Mr Gerrard what part of this plan negates the Court’s opinion that this was a health and safety issue. Mr. Gerrard stated that this was not what the court said, rather they said that there was enough in the record to allow the village to shut Metro Enviro down and they held that the village had the right to deny but it didn’t obligate them to shut Metro Enviro down. Ms. Konig asked how can we fight the Pipeline when Croton is known far and wide as a community that can be bought.

Tom Brennan, 121 N. Riverside  - Mr. Brennan asked about calls from Mr. Steinmetz and who he (Mr. Gerrard) discussed them with. Mr. Gerrard stated that he would not discuss what was said in Executive Session. Mr. Brennan asked how many times has he represented municipalities where you won and then negotiated a settlement. Mr. Gerrard said that has occurred. Mr. Brennan stated that everyone knows we can’t trust Metro Enviro, we need principled leadership but if that doesn’t happen when it comes time to vote, the people will know what to do. He referred to Trustee Grant’s statement from a year or so ago and asked what had changed her mind.  We don’t need their money, there are ways to cut back.
John Ghegan ,Young Ave. – He has a 13 year old son and wants to explain democracy to him; doesn’t understand why the village would enter an agreement if we won.  If the village did not feel they were harmful to the environment, why monitor now?

Joanne Minett ,5 Van Cortlandt Place – This is essentially making a compromise between a deal with Metro Enviro and reducing debt that was incurred over Mayor Elliott’s administration. She stated that the Board doesn’t care about the people of this village.   We still will end up in court.  How much will all these new expenses really cost?  Listen to the people.  You’re making us compromise and it’s not fair. This is all due to mismanagement.  Pipe work in the village should have been started long ago.

Richard Pellicci, 65 Radnor – Mr. Pellicci asked about there being no new reported violations; he wasn’t aware that we had a monitor  there. He read an email from a Mt. Kisco resident who warns against making an agreement with Metro Enviro. Mr. Pellicci stated he is tired of trying to convince the Board about why Metro Enviro should be removed.  He has heard some people say that Village Board members would vote to let Metro Enviro stay just because they dislike the opponents so much. The Board professes civility but are always the name callers – he and his group tell the truth.  For 6 years they have been appearing to get Metro Enviro out of the village. Mr. Pellicci read to the Board what their legal obligations are to protect the community.

Mark Aarons, 18 Georgia Lane – Mr. Aarons stated we are back to square one; if a new permit is issued, and they violate it, we’ll be back to where we are now.  He finds it anomolous that Mr. Gerrard is telling us that this might be a good deal. He asked about eminent domain procedure – is it a possibility? Mr. Gerrard said yes and explained how.  Mr. Aarons asked why this wasn’t put into the options presented.  He also spoke about a court case which said a consensus vote does not exclude the recording of a  vote, referring to an earlier executive session on this matter; he read the decision. Mr. Aarons stated that tonight’s meeting is illegal because it was decided at a meeting that was not made public.  If the Village Board continues, his group will proceed with an article 78.

Anne DiCioccio, Irving Ave. – Ms. DiCioccio asked if anything that anybody says make any difference; can we have a referendum?  Mr. Gerrard stated he did not know if this is the type of matter that is subject to a referendum; no decisions will be made until a full public hearing is held and residents have been heard.  Ms. DiCioccio said that occurred 6 years ago – does it mean anything now. Mr. Gerrard stated that was a rhetorical question.  She asked what citizens can do.

Don Daubney, 44 Bungalow Rd. Mr. Daubney stated that the 1998 bi-partisan citizen’s committee didn’t give a unanimous decision; there was a written minority report.  We wouldn’t be here tonight if Trustee Wiegman didn’t follow along with the suggestion of hiring a special lawyer on this matter.  Did the Village anticipate this when the Board voted to deny the Special Permit?  Did Mr. Gerrard perceive that the village would be at this point now at the time the Board voted to deny the renewal?

BobWintermeier, 43 Radnor Ave. – He wants to point out that the flow chart overlooks some options – eminent domain and rezoning and purchase of the property. The board has also overlooked Allied’s own financial problems – what if they go bankrupt?  Mr. Gerrard stated that if Allied went bankrupt and if the facility continues to fulfill the permit conditions, that would not allow them to be shut down.  Purchase is always a possibility just as eminent domain; it would likely be a very substantial cost.  Rezoning would not alter the prior non-conforming use situation. It is already a non-conforming use as shown as item K on the chart.  Mr. Wintermeier asked if there were to be another court case would the court support us after making this settlement?  Mr. Gerrard stated that if they violate a new agreement, our position is very supportable in court.  Mr. Gerrard feels the essence of the proposed special permit is better defined than the prior one.  Courts generally favor settlements and favor clear agreements.  If subsequently violated, the courts would support a future lawsuit. Mr. Wintermeier stated that he has heard the board talk about how great the financial condition of the Village is so why are we considering this?  In reality we’ll  probably never see the money,  the village will use it for something else; never see a tax decrease. He is concerned we will never get a financial benefit from this.  We were concerned about health and safety. There are lots of things to do to make up additional money.  No matter what Allied offers, we don’t need it or want it and hopes not dealing with an environmental terrorism situation.

Dave Tuttle, Grand St.  He should be home with his family and children as this is the first day of school.  Did Mr. Gerrard pick the date? No.  Who decided $25k was adequate for a monitor?  Mr. Gerrard explained the background – modeled on the Mt. Kisco agreement.  Mr. Tuttle said it is inadequate for a monitor. It seems to him that none of these conditions, if implemented, will protect us from further litigation.  Mr. Gerrard said you can’t keep people from going to court; it can’t be guaranteed under any circumstances but there are probabilities. Mr. Tuttle stated he is unlikely to be before this board again in his lifetime.  There are people here tonight in the room representing Allied waste.

Deborah McCarthy, Bradley Road, Scarsdale -  She can appreciate the doublespeak you are going through. She asked if Mr. Gerrard prepared the chart; no, but several drafts were done.  She stated that the presentation was full of obfuscations and gave the example of a new owner coming in to open up another non-conforming use at another site.  Mr. Gerrard said he didn’t want to enter a legal argument with her because he doesn’t want to box in the village’s future legal position. Ms. McCarthy stated there is no legal reason for the Board to be doing what they are proposing right now.  If you believe that the Court of Appeals would rule in our favor, don’t we have greater leverage? Ms. McCarthy pursued several legal arguments and read from a ruling. She asked  what part of the statement she read changed with the proposed settlement.  When did Walter Mack stop monitoring?  Mr. Gerrard stated that Mr. Mack was not primarily an environmental monitor.  She asked if it was not true that Mr. Mack found most of the violations. She stated there is a high correlation between nothing new happening and Mr. Mack not being involved so you can’t draw any conclusions.  With respect to the LI district, are you aware the LI districts were rezoned in the last few years?  Are Board members concerned about uses in that zone?  If Croton has concerns about uses in that zone, then it should rezone.  She sat in many meetings when the Village was concerned about the Liguori operation and the village disposing materials at that site; are you concerned now about this?   Ms. McCarthy asked if Mr. Gerrard represents any clients that have imposed an impact fee? He replied he could not think of any.  Ms. McCarthy referred to his statement that you can impose a fee to compensate the village for expenses; he replied yes but this is not unlimited.  Ms. McCarthy asked if the village had undertaken a review and analysis of the costs of monitoring?  How much does Mt. Kisco pay now; Mr. Gerrard said between $25k and $50k.  Does it include testing; no.  Mr. Gerrard said he had indicated that the Village may choose to do more; they have been working with some environmental companies on possible testing.  Ms. McCarthy asked about a referendum – are you going to research this; don’t know.  Who is actually paying the fee – Allied or Metro Enviro.  Mr. Gerrard said he doesn’t know where it would come from. She asked if that doesn’t that impact the previous bankruptcy analysis; no it doesn’t.  Ms. McCarthy asked about his statement on negligent violations not being a reason to terminate the permit – isolated negligent violations.  Mr. Gerrard stated that it was the persistent intentional violations that were the basis for the denial of the permit. She asked how will you get sworn testimony in the future – will the permit provide the village with subpoena power, the power to deposition and to compel production of documents.  Mr. Gerrard said no.  Ms. McCarthy stated that is a mistake.  She stated that at the time the village retained you we knew you represented the Village of Mt. Kisco and that presents a conflict of interest for Mr. Gerrard since the keeping open of Metro Enviro would be a benefit to Mt. Kisco.  Mr. Gerrard stated he did not believe he had a conflict since all parties were aware of his representing the others.

Mayor Elliot stated that Ms. McCarthy was the person who recommended Mr. Gerrard.  Trustee Schmidt said Mayor Elliott should retract his statement.

Dave Goldman – Mr. Gerrard has a good reputation and there is room for criticism. He is glad that the decision is not being made tonight.  Was the Board kept informed of meetings with Metro Enviro? Mr. Gerrard stated that he updated the board from time to time; he won’t get into attorney-client communications. Mr. Goldman stated that Croton is in a compacted area of risk, environmentally - old Croton dump, Metro North, the large number of trucks going through the village to Charles Point and Karta and Indian Point -  all just happen to be right here. Community character was studied in the past with regard to this permit.  Croton has tried to maintain this by zoning to control car dealerships and fighting MacDonald’s.  It seems contradictory to do these things and allow Metro Enviro to exist.  Has the County or State been involved in any way; no.  He read Mr. Gerrard’s brief and it is fortunate that we had the federal monitor because without him we wouldn’t have had a case.  The DEC doesn’t follow through on their fines.  He opposes any deal here.  Why are there suddenly new choices.  We assumed that if we won, then we would not have this type of company any more because it is no longer a legal use.  Fines are just the cost of doing business.

Michelle Celarier, Nordica Dr.  She is a registered Democrat.  This issue has been very partisan; she is disappointed in Croton’s Democrats.  She thanked Ms. McCarthy for coming as she doesn’t live here any more. She missed the first part of Mr. Gerrard’s presentation.  She was opposed to the original permit. At that time the bottom line was the village couldn’t do anything about it – zoned for it, let’s do the best we can with it.  Is buying it considered an option?  Mr. Gerrard stated this would be a very costly proposition.  He stated that if it is shut down a new potential user could come forward who would argue that it could continue to be a transfer station and this would result in further litigation.  Ms. Celarier said she is hearing that the bottom line is that Croton is stuck with this use.  She asked about item S on the flowchart. Mr. Gerrard explained that that referred to a possible Article 78 from opponents of a new permit. She asked about the tax implications; there is no promise that the taxes will go down.  Manager Herbek reviewed some of his earlier remarks about how the non-tax revenues increase will help to offset the future tax increases. She asked about the fee for the monitoring and what would be the amount of monitoring that would occur?  Mr. Gerrard explained what Mt. Kisco has chosen to do with monitoring.  Ms. Celarier stated that if the Village has decided in 1998 to deny, we wouldn’t be any worse off than now; it is still same situation and the village is never going to get out of it. She presumes that Mr. Gerrard thinks this is the best thing to do.  Mr. Gerrard stated that this is the best deal that can be cut but it is up to the Board.

Bill Riedy, Wells Ave. – He asked Mr.Gerrard why he told the Board not to discuss anything about this issue? Mr. Gerrard stated that it is customary when there are settlement discussions to hold them in secret and the NYS Public Officers Law specifically provides for that.  

Mariana Ciraulo, 2 Wells  -  Regarding the conflict of interest raised by Ms. McCarthy, why do you think your representing both Croton and Mt. Kisco is an asset?  Mr. Gerrard stated he does not believe there is any conflict – both communities were fully aware of his work for the other.  She stated that it seems like everything that goes on in this matter is done in secret.  You said you did speak with the Board members.  She doesn’t understand why Mr. Gerrard is a great asset if the residents don’t know any of the information.  She smells the trucks all the time.  

Linda Conte, a school district resident and owns property on Brook St. – By her math the tax benefit to residents is about 61 cents/day. It seems that Metro Enviro has not been a good partner with the village.  She knows it is complex and there are other issues.  She can’t find parking – why can’t we expand our parking?  Do something better with this property.

David Tuttle, Grand St. – Asked how it could be said that only minor or no violations have occurred since Mr. Mack stopped monitoring when there has been no monitoring.  Manager Herbek stated that was not true; the Village has monitored by a combination of the Village Engineer Dan O’Connor, Joe Sperber, himself and also the DEC.  Mr. Tuttle asked what is the purpose on Sept. 27th. Mr. Gerrard stated it is to take public comment on the proposed permit. Mr. Tuttle asked where does the information come from – public, himself, do our opinions matter and how much. Mr. Gerrard said they matter and will be listened to and be considered.

Maria Cudequest, 84 Grand St. – Why is this permit being sent to Westchester Planning Board for advisory opinion?  Manager Herbek explained what actions are required to be sent there. Mr. Gerrard stated that this type of action doesn’t have to go there but it would be useful.  Ms. Cudequest stated that the County also plans for its solid waste needs. Manager Herbek said it is done to be in conformity to the County’s Patterns plan.  She predicted a 4-1 vote.

Tom Brennan, 121 N. Riverside – Could there be a vote on the September 27th?  Mr. Gerrard said it is up to the Board.  Mr. Brennan asked if you will then reveal the vote in Executive session? Mr. Gerrard said no; it will not affect my attorney-client conversations in Executive session. Mr. Brennan said it doesn’t make sense that you won’t tell the people who are really paying your bill what your advice was.

Mayor Elliott concluded the question period and asked Manager Herbek to read the resolution to schedule a Public Hearing on Sept. 27th on this matter.  

On motion of  TRUSTEE Grant,  seconded by  TRUSTEE Kane,  the  
following resolution was adopted by the Board of Trustees of the Village of Croton-on-Hudson, New York with a 4-1-0 vote with Trustee Schmidt voting against.:

WHEREAS, in the spring of 2001 Metro-Enviro applied for the renewal of its special permit which was due to expire in May of 2001; and

WHEREAS, there were numerous public hearings regarding this application and the permit was extended 13 times; and

WHEREAS, the Village Board denied the renewal application in January of 2004; and

WHEREAS, Metro-Enviro brought a lawsuit against the Village in New York State Supreme Court and in February 2003 Justice Nicolai ruled for Metro Enviro, annulled the Village’s decision and directed the Village to issue the permit; and

WHEREAS, the Village appealed this decision and in May of 2004 the New York State Supreme Court, Appellate Division, Second Department reversed Justice Nicolai and the Village directed Metro Enviro to shut down as of July 14, 2004; and

WHEREAS, Metro Enviro filed a motion with the New York Court of Appeals asking it to review the Appellate Division decision and requesting a stay in the shutdown order; and

WHEREAS, on July 12, 2004 Judge Robert Smith of the Court of Appeals issued a stay of the Appellate Division pending a decision by the full Court of Appeals on whether to review that decision; and

WHEREAS, this order had the effect of reinstating Justice Nicolai’s decision and reinstating Metro-Enviro’s permit renewal application; and

WHEREAS, at Metro Enviro’s request the Village, through its Counsel and Village Manager, and Metro Enviro have held discussions on possible resolution of the overall dispute; and
WHEREAS, negotiators have arrived at a proposal to be presented to the Trustees relative to Metro Enviro’s application for renewal of the special permit,
NOW, THEREFORE BE IT RESOLVED:  that the Village Board of Trustees hereby calls for a Public Hearing at 8 pm in the meeting room of the Stanley H. Kellerhouse Municipal Building on September 27, 2004 to consider the Metro-Enviro special permit renewal application and a proposed settlement of the issues between Metro Enviro and the Village.

Discussion:  Trustee Schmidt said he hoped the public would come out again. It is quite an embarrassment for him to be here since he ran for office to make Croton a better place.  You should make it clear what you want.  Trustee Wiegman stated that he was suggesting strongly to everyone here that it does matter what people think.  It matters what you think and that we hear from you.  It is true that we can’t make decisions purely on feelings – sooner or later it is the facts that matter.  However you choose to comment – it matters to me and to my fellow board members.   Mayor Elliott said copies of tonight’s presentation are available for all.

        On a motion by Trustee Grant, seconded by Trustee Kane the vouchers were approved unanimously as follows, subject to review by the Audit Committee

        General Fund            $ 112,093.60
        Water Fund                   14,198.88
        Capital Fund                     33,214.34
        Trust & Agency         8,597.19
        Total                           $  168,104.01

On a motion by Trustee Wiegman, seconded by Trustee Kane, the meeting was adjourned at 10:35 pm. by unanimous vote.

Respectfully submitted
Ann H. Gallelli, Secretary

Village Clerk