Metro Enviro Transfer, LLC v. Village of Croton-on-Hudson

Majority

p. 236

[833 NE2d 1210, 800 NYS2d 535]

In the Matter of Metro Enviro Transfer, LLC, Appellant, v Village of Croton-on-Hudson et al., Respondents.

Argued June 8, 2005;

decided July 6, 2005

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POINTS OF COUNSEL

Zarin & Steinmetz, White Plains (David S. Steinmetz, Daniel M. Richmond and Jody T. Cross of counsel), for appellant.

I. Substantial evidence of a genuine threat to public health, safety and welfare is required before a municipality can deny the renewal of a special permit and permanently close an existing business. (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190 ; Matter of Ifrah v Utschig, 98 NY2d 304 ; Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683 ; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 ; Matter of Framike Realty Corp. v Hinck, 220 AD2d 501 , 88 NY2d 803 ; Matter of Markowitz v Town Bd. of Town of Oyster Bay, 200 AD2d 673 , 84 NY2d 802 ; Matter of Atlantic Cement Co. v Williams, 129 AD2d 84 ; Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000 ; Matter of Village of Hudson Falls v New York State Dept. of Envtl. Conservation, 158 AD2d 24 , 77 NY2d 983 ; Matter of Scenic Hudson v Jorling, 183 AD2d 258 .) II. Substantial injustice is inflicted where a business is closed and a land use is terminated, even though permit violations are cured, fines are paid and corrective measures are implemented. (Rummel v Estelle, 445 US 263 .)

Arnold & Porter LLP, New York City (Michael B. Gerrard and Richard Webster of counsel), for respondents.

I. The Croton-onHudson Village Board of Trustees’ decision was entitled to great deference. (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190 ; Matter of Ifrah v Utschig, 98 NY2d 304 ; Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683 ; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608 ; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 ;

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Matter of All-Weather Carting Corp. v Town Bd. of Town of Islip, 137 Misc 2d 843 ; Matter of Chilson v Board of Educ. of City of N.Y., 34 NY2d 222 ; Matter of Featherstone v Franco, 95 NY2d 550 .) II. The Croton-on-Hudson Village Board of Trustees’ refusal to renew Metro Enviro Transfer, LLC’s expired permit was rational and based on substantial evidence. (Matter of Bell v Szmigel, 171 AD2d 1032 ; Matter of Village of Hudson Falls v New York State Dept. of Envtl. Conservation, 158 AD2d 24 , 77 NY2d 983 ; Matter of Atlantic Cement Co. v Williams, 129 AD2d 84 ; Matter of Eastern Transfer of N.Y. v Cahill, 268 AD2d 131 ; Matter of Aprile v Lo Grande, 89 AD2d 563 , 59 NY2d 886 ; Matter of All-Weather Carting Corp. v Town Bd. of Town of Islip, 137 Misc 2d 843 ; Matter of B. Manzo & Son v New York State Dept. of Envtl. Conservation, 285 AD2d 504 ; Matter of Albany-Greene Sanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d 644 ; Matter of Toys “R” Us v Silva, 89 NY2d 411 ; Matter of Stork Rest, v Boland, 282 NY 256 .) III. Metro Enviro Transfer, LLC’s appeal relies on several invalid grounds. (Wiggins v Town of Somers, 4 NY2d 215 ; Town of Islip v Zalak, 165 AD2d 83 ; Town of LaGrange v Giovenetti Enters., 123 AD2d 688 ; New York Coalition of Recycling Enters. v City of New York, 158 Misc 2d 1 ; Matter of 4M Holding Co. v Town Bd. of Town of Islip, 185 AD2d 317 , 81 NY2d 1053 ; Town of Islip v Clark, 90 AD2d 500 ; State of New York v Brookhaven Aggregates, 121 AD2d 440 ; Incorporated Vil. of Freeport v Jefferson Indoor Mar., 162 AD2d 434 ; Matter of Featherstone v Franco, 95 NY2d 550 ; Matter of Yarbough v Franco, 95 NY2d 342 .)

Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

I. Public policy recognizes the authority of local governments to adopt laws that protect the health, safety, welfare and property of their inhabitants. (Matter of Validation Review Assoc., 223 AD2d 134 ; Haag v Barnes, 11 AD2d 430 ; Melodies, Inc. v La Pierre, 4 AD2d 982 ; Town of Hempstead v Goldblatt, 9 NY2d 101 ; Carollo v Town of Smithtown, 20 Misc 2d 435 ; New York ex rel. Lieberman v Van De Carr, 199 US 552 ; Lane v City of Mount Vernon, 38 NY2d 344 ; Matter of Wulfsohn v Burden, 241 NY 288 ; People ex rel. Armstrong v Warden of City Prison of City of N.Y., 183 NY 223 ; Matter of Molnar v Curtin, 273 App Div 322 .) II. The fact that no injury is known to have occurred is not determinative as to the validity of the regulation enacted to safeguard the health and safety of the residents of the municipality. (Town of Southport v Ross, 284 App Div 598 ; Wiggins v Town of Somers, 4 NY2d 215 ; City of Rochester v West, 164 NY 510 ; Lighthouse

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Shores v Town of Islip, 41 NY2d 7 ; Stuart v Palmer, 74 NY 183 ; Sheldon v Town of Highlands, 73 NY2d 304 ; Gilman v Tucker, 128 NY 190 ; Gulest Assoc. v Town of Newburgh, 25 Misc 2d 1004 ; Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158 ; Springfield, L.I., Cemetery Socy. v City of New York, 271 NY 66 .)

OPINION OF THE COURT

The question in this appeal is whether a village board’s decision not to renew a special use permit was supported by substantial evidence. We hold that it was.

In 1998, Croton-on-Hudson’s Village Board of Trustees approved a three-year special use permit for a solid waste transfer facility operated by Metro Enviro, LLC.^[1] The permit contained 42 special conditions, including capacity limitations. Other conditions included delineating types of waste that were not allowed in the facility and specifying training required of facility personnel.

Over the three-year period covered by the permit, Metro repeatedly and intentionally violated conditions of the permit. Metro not only exceeded capacity limitations at least 26 times, but also falsified records by rigging software to reallocate the dates of waste intake, deceptively giving the impression that there were no excesses. Further, on at least 42 occasions, the operators accepted prohibited types of industrial waste. Other violations included the inadequate training of facility personnel, insufficient record keeping and inappropriate storage of tires on the site.

Undeniably, there is overwhelming proof of these violations. Indeed, Metro admitted them. It paid fines in connection with several violations and, as a direct result of its capacity excesses, lost its bid to increase the facility’s capacity.

In March 2001, Metro applied to renew the permit, due to expire in May 2001. The Board granted more than 10 temporary extensions and held extensive hearings in which it heard evidence and opinion testimony for and against renewal. Metro presented extensive sworn expert testimony and submitted additional written evidence and legal arguments. On January 27, 2003, the Board voted not to renew the permit.

1 Metro Enviro, LLC is an entity distinct from appellant Metro Enviro Transfer, LLC. Metro Enviro Transfer acquired Metro Enviro’s assets in March 2000.

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The Board released a 14-page statement of findings detailing its rationale, including a three-page chart summarizing Metro’s violations. In its statement, the Board credits the report of the Village’s consultant, in whose opinion the violations were substantial. He concluded they “signify a facility that continually promises to improve but nonetheless persistently violates regulations that are designed to protect health and the environment.” The Board’s statement reflects its doubts about Metro’s credibility and its concern that Metro had not been forthright in its dealings with the Village. The Board expressed a belief that, but for a federal monitor’s presence, Metro might have concealed information about its operations.

Seeking to annul the Board’s decision, Metro brought this CPLR article 78 proceeding. Supreme Court granted the petition, reasoning that the Board’s decision was “impermissibly based, in part, upon generalized opposition, which remains uncorroborated by any empirical data.” The Appellate Division reversed and dismissed Metro’s petition, concluding that Supreme Court “erroneously substituted its own judgment for that of the Village” ( 7 AD3d 625 , 627 [2d Dept 2004]). We granted Metro leave to appeal to this Court, and now affirm.

Metro argues that because it has admitted its violations, paid fines and taken action to conform with the permit conditions in the future, the Board was wrong in denying renewal of the special permit. In essence, Metro asserts that to justify nonrenewal, the Board must show substantial evidence not only of violations, but of violations that actually harmed or endangered health or the environment. We disagree. Although inconsequential violations would not justify nonrenewal, the many violations here, and their willful nature, sufficiently support the Board’s decision.

In Matter of Twin County Recycling Corp. v Yevoli ( 90 NY2d 1000 , 1002 [1997]), we recognized that a board is not without discretion iii deciding whether to grant a special use permit.^[2] Scientific or expert evidence is not necessary, but a board may not base its determination on “generalized community objections” (id.). In Matter of Market Sq. Props, v Town of Guilderland Zoning Bd. of Appeals ( 66 NY2d 893 , 895 [1985]), we held that “expert opinion . . . may not be disregarded in favor of

2 See also 2 Anderson, New York Zoning Law and Practice § 24.15, at 294 (3d ed 1984) (boards apply “common-sense judgments” to resolve special use permit disputes).

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generalized community objections,” but nevertheless affirmed the board’s denial of a special use permit because there were other grounds in the record.^[3] The same principle applies to renewal of a special use permit. This is not to say that denials and nonrenewals may always be based on identical grounds. Where a facility is already in operation and its owner has made an investment, the board should take those facts into account. That said, the board’s decision remains a discretionary one that will not be overturned if it has a proper basis.

As the Appellate Division correctly explained, the Board did not have to show substantial evidence of actual harm. It is enough that the Board found the violations potentially harmful.^[4] Here, Metro claims that none of the violations in question created a significant threat of harm. But even if no single violation was dangerous in itself, the Board was entitled to conclude that the history of repeated, willful violations created an unacceptable threat of future injury to health or the environment.

There may, of course, be instances in which an applicant’s violation is so trifling or de minimis that denying renewal would be arbitrary and capricious. In this case, however, the Board reviewed volumes of evidence and opinions from both Metro’s expert and its own. Metro’s expert said the violations were inconsequential. The Board’s expert, however, stated, and the Board was entitled to conclude, that despite Metro’s assurances that it would comply, the facility persistently violated permit conditions designed to protect health and the environment. The Board weighed the evidence and concluded it “[could] no longer rely” on Metro’s assurances of future compliance. A reviewing court “may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record” (Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190 , 196 [2002]). Here, the quantity and character of Metro’s violations would have

3 In this realm, board determinations are not popularity contests and will he set aside on judicial review when based solely on generalized community opposition. Conversely, if a board determination is based on substantial evidence, it would be perverse for a court to vacate it merely because the community opposed the proposal. Here, where the Board had substantial evidence for its determination, the courts need not look to the role of community opposition to (or support for) the permit renewal.

4 See e.g. Matter of Atlantic Cement Co. v Williams, 129 AD2d 84 , 88 (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 he granted”).

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constituted sufficient grounds to deny Metro’s renewal application on their own, with or without expert testimony.

Accordingly, the Appellate Division’s order should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs.

Cases cited

Retail Property Trust v. Board of Zoning Appeals 98 NY2d 190 N.Y. 2002-07-01 at 196 p. 237, p. 241
Ifrah v. Utschig 98 NY2d 304 N.Y. 2002-07-01 p. 237
P.M.S. Assets, Ltd. v. Zoning Board of Appeals 98 NY2d 683 N.Y. 2002-07-01 p. 237
300 Gramatan Avenue Associates v. State Division of Human Rights 45 NY2d 176 N.Y. 1978-07-13 p. 237
Framike Realty Corp. v. Hinck 220 AD2d 501 N.Y. App. Div. 1995-10-10 p. 237
Markowitz v. Town Board of Oyster Bay 200 AD2d 673 N.Y. App. Div. 1994-01-24 p. 237
Atlantic Cement Co. v. Williams 129 AD2d 84 N.Y. App. Div. 1987-06-11 p. 237, p. 238
Twin County Recycling Corp. v. Yevoli 90 NY2d 1000 N.Y. 1997-10-28 at 1002 p. 237, p. 240
Village of Hudson Falls v. New York State Department of Environmental Conservation 158 AD2d 24 N.Y. App. Div. 1990-06-14 p. 237, p. 238
Village of Hudson Falls v. New York State Department of Environmental Conservation 77 NY2d 983 N.Y. 1991-05-09 p. 237, p. 238
Scenic Hudson, Inc. v. Jorling 183 AD2d 258 N.Y. App. Div. 1992-11-12 p. 237
Rummel v. Estelle 445 US 263 SCOTUS 1980-03-18 p. 237
Pell v. Board of Education 34 NY2d 222 N.Y. 1974-05-15 p. 237, p. 238
All Weather Carting Corp. v. Town Board of Islip 137 Misc 2d 843 N.Y. Sup. Ct. 1987-12-03 p. 238
Featherstone v. Franco 95 NY2d 550 N.Y. 2000-12-21 p. 238
Bell v. Szmigel 171 AD2d 1032 N.Y. App. Div. 1991-03-08 p. 238
Eastern Transfer of New York, Inc. v. Cahill 268 AD2d 131 N.Y. App. Div. 2000-05-04 p. 238
Aprile v. Lo Grande 89 AD2d 563 N.Y. App. Div. 1982-07-06 p. 238
Aprile v. Lo Grande 59 NY2d 886 N.Y. 1983-06-14 p. 238
B. Manzo & Son, Inc. v. New York State Department of Environmental Conservation 285 AD2d 504 N.Y. App. Div. 2001-07-09 p. 238
Albany-Greene Sanitation, Inc. v. Town of New Baltimore Zoning Board of Appeals 263 AD2d 644 N.Y. App. Div. 1999-07-08 p. 238
Toys "R" Us v. Silva 89 NY2d 411 N.Y. 1996-12-20 p. 238
Stork Restaurant, Inc. v. Boland 282 NY 256 N.Y. 1940-03-05 p. 238
Wiggins v. Town of Somers 4 NY2d 215 N.Y. 1958-04-03 p. 238
Town of Islip v. Zalak 165 AD2d 83 N.Y. App. Div. 1991-02-11 p. 238
Town of LaGrange v. Giovenetti Enterprises, Inc. 123 AD2d 688 N.Y. App. Div. 1986-10-14 p. 238
New York Coalition of Recycling Enterprises, Inc. v. City of New York 158 Misc 2d 1 N.Y. Sup. Ct. 1992-09-01 p. 238
4M Holding Co. v. Town Board of Islip 185 AD2d 317 N.Y. App. Div. 1992-07-20 p. 238
4M Holding Co. v. Town Board 81 NY2d 1053 N.Y. 1993-06-15 p. 238
Incorporated Village of Freeport v. Jefferson Indoor Marina, Inc. 162 AD2d 434 N.Y. App. Div. 1990-06-04 p. 238
Yarbough v. Franco 95 NY2d 342 N.Y. 2000-10-26 p. 238
In re the Dissolution of Validation Review Associates, Inc. 223 AD2d 134 N.Y. App. Div. 1996-07-29 p. 238
Haag v. Barnes 11 AD2d 430 N.Y. App. Div. 1960-11-29 p. 238
Melodies, Inc. v. La Pierre 4 AD2d 982 N.Y. App. Div. 1957-11-15 p. 238
Town of Hempstead v. Goldblatt 9 NY2d 101 N.Y. 1961-01-19 p. 238
Carollo v. Town of Smithtown 20 Misc 2d 435 N.Y. Sup. Ct. 1959-08-28 p. 238
New York ex rel. Lieberman v. Van De Carr 199 US 552 SCOTUS 1905-12-11 p. 238
Lane v. City of Mount Vernon 38 NY2d 344 N.Y. 1976-01-08 p. 238
Wulfsohn v. Burden 241 NY 288 N.Y. 1925-11-24 p. 238
People ex rel. Armstrong v. Warden of City Prison 183 NY 223 N.Y. 1905-12-05 p. 238
City of Rochester v. West 164 NY 510 N.Y. 1900-11-30 p. 238
Stuart v. Palmer 74 NY 183 N.Y. 1878-06-18 p. 239
Sheldon v. Town of Highlands 73 NY2d 304 N.Y. 1989-03-28 p. 239
Gilman v. Tucker 128 NY 190 N.Y. 1891-10-06 p. 239
Gulest Associates, Inc. v. Town of Newburgh 25 Misc 2d 1004 N.Y. Sup. Ct. 1960-12-12 p. 239
Jewish Reconstructionist Synagogue of North Shore, Inc. v. Incorporated Village of Roslyn Harbor 40 NY2d 158 N.Y. 1976-06-15 p. 239
Springfield, L. I., Cemetery Society v. City of New York 271 NY 66 N.Y. 1936-04-21 p. 239
Metro Enviro Transfer v. Village of Croton-on-Hudson 7 AD3d 625 N.Y. App. Div. 2004-05-10 at 627 p. 240
Market Square Properties, Ltd. v. Town of Guilderland Zoning Board of Appeals 66 NY2d 893 N.Y. 1985-11-21 at 895 p. 240