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Metro Enviro


To Be Argued By:
Michael B. Gerrard
Time Requested:
10 Minutes

Appellate Division
Index No. 2003-02335


Arnold & Porter
399 Park Avenue
New York, New York 10022
(212) 715-1000

Attorneys for Respondents-Appellants
The Village of Croton-on-Hudson and
The Village Board of Trustees of the
Village of Croton-on-Hudson

November 2003

Westchester County Clerk’s Index No. 03/1788

I       Introduction    1
II      Extensive Expert Studies and Careful Deliberation Went Into Formulation of the Permit Conditions        3
III     The Permit Conditions Were Designed to Protect Public Health and the Environment        4
IV      There Is Undisputed Substantial Evidence Of Repeated Serious Violations Of These Permit Conditions      6
V       Village’s Action Was Proportional To The Violations     10
VI      The Established Violations Were a Sufficient Basis for the Village’s Decision   13
VII     Authorities Stressed By Metro Enviro Transfer Actually Support Village’s Position       15
VIII    Metro Enviro Transfer Raises Several Irrelevant Points  18
IX      Conclusion      21


Cases:          Page(s)

All-Weather Carting Corp. v. Town Bd. of the Town of Islip,
137 Misc. 2d 843, 522 N.Y.S.2d 425 (Sup. Co. Suffolk Co. 1987)  11

Atlantic Cement Co. v. Williams, 129 A.D.2d 84, 516 N.Y.S.2d 523 (3d Dept. 1987)        17

Bell v. Szmigel, 171 A.D.2d 1032, 569 N.Y.S.2d 36 (4th Dept. 1991)      16

C&A Carbone, Inc. v. Holbrook, 188 A.D.2d 599, 591 N.Y.S.2d 493 (2d Dept. 1992) 18

C.B.H. Properties Inc. v. Rose, 205 A.D.2d 686, 613 N.Y.S.2d 913 (2d Dept. 1994)        17

Chilson v. Bd. of Educ., 34 N.Y.2d 222, 238, 356 N.Y.S.2d 833, 845 (1974)       11

Northside Salvage Yard, Inc. v. Bd. of Appeals of the Town of Pittsfield        16

Oyster Bay Assocs. Ltd. P’ship v. Town Bd. Of Town of Oyster Bay,
        7/16/2002 N.Y.L.J. 26 (col. 5) (Sup.Ct. Suffolk Cty.), aff’d,
        303 A.D.2d 410, 755 N.Y.S.2d 671 (2d Dept. 2003)        19

Pell v. Bd. of Educ., 34 N.Y.2d 222, 365 N.Y.S.2d 833 (1974)    10, 11

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)        16, 17

PDH Properties, LLC v. Planning Bd. Of the Town of Milton, 298 A.D.2d 684, 748 N.Y.S.2d 193 (3d Dept. 2002)     18-19

Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 665 N.Y.S.2d 627 (1997)  15

Village of Hudson Falls v. DEC, 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)  16-17

Other Authorities:              Page(s)

Kathi A. Drew & R. K. Weaver, Disproportionate Or Excessive Punishments:
        Is There A Method For Successful Constitutional Challenges?,
        2 Tex. Wesleyan L. Rev. 1 (1995).       13

Richard Lowell Nygaard, On the Philosophy of Sentencing: Or Why Punish?,
        5 Widener J. Pub. L. 237 (1996) 13


Index No. 2003-02335


The Village Board of Trustees of the Village of Croton-on-Hudson (the “Village Board” or “Village” or “Board”) had before it extensive and undisputed evidence of repeated, deliberate and substantial violations of the most critical permit conditions that were designed to protect public health, safety and the environment.  Metro Enviro Transfer LLC (“Metro Enviro Transfer”) tries to reformulate the question by demanding substantial evidence that adverse health or environmental impacts have already occurred – creating a straw man.  What was required, and what the record amply contains, is substantial evidence that Metro Enviro Transfer violated permit requirements that were designed to protect public health, safety and the environment.  The absence of proof that the violations actually caused environmental damage or harm to citizens is legally irrelevant.
The seriousness of the violations is compounded by late and reluctant disclosure by the permittee.  Many were disclosed months after they occurred only upon the insistence of a federal Court-appointed monitor armed with full subpoena, deposition and investigatory powers that the Village lacks.  This monitorship has now come to an end and the Village has no assurance that should the violations recur, they would be discovered.
Metro Enviro Transfer seeks to confuse the issue further by arguing that a business should not be closed down for minor technical violations of permit conditions.  This argument is irrelevant to this case, because the violations here were deliberate, knowing and repeated, and went to heart of the permit conditions.  The facts about the violations and their disclosure are not only established by substantial evidence, they are undisputed.  Metro Enviro Transfer also ignores that it assented to a heavily-negotiated permit that provides for closure in exactly the circumstances present here.
Metro Enviro Transfer would establish a precedent that once a facility has begun operation, it may stay open forever, no matter how many violations occur, until the government can show that people have actually been hurt or the environment damaged.  There is no such rule and it should not be established.  Such a rule would eviscerate the ability of governments to enforce permit conditions designed to prevent harm.  Enforcement that only occurs after people are hurt or the environment is damaged is too late.  To prevent such harm from occurring and deter others from similar conduct, governments must continue to be able to close businesses that repeatedly and intentionally disregard critical permit conditions.  No New York court has required proof of harm in addition to proof of violation of reasonable permit conditions before a permit can be revoked or not renewed.
Over a period of some two years the Village Board heard assurances from Metro Enviro Transfer that, while violations had occurred in the past, systems were in place to ensure full compliance with permit conditions.  Time and time again, these assurances were undercut by the emergence of additional later violations.  Eventually, after thirteen temporary extensions of the permit and after a cascade of revelations of new violations, the Village made the common sense judgment that it could not trust Metro Enviro Transfer to comply with the permit conditions.  This was not a hasty decision made with little evidentiary support.  It was carefully considered, backed by a 15-volume record and fully explained in a detailed statement of findings, thoroughly grounded in the record.  This final decision is fully supported by uncontradicted evidence and the applicable law.
Extensive Expert Studies and Careful Deliberation Went Into Formulation of the Permit Conditions
Before the Special Permit for the Metro Enviro Transfer facility was issued in 1998, there were at least two comprehensive reviews of potential environmental effects by experts, as well as close scrutiny by a Citizens Committee that was itself expert.  See R.A. 1810.  As far back as 1995, the Village Planning Board asked an expert from Roy F. Weston Inc., a well-known engineering firm, to review the potential environmental impacts of a proposed construction waste transfer facility at the site in issue. R.A. 2672.  In 1998, Allee King Rosen & Fleming Inc. (“AKRF”), a leading environmental consulting firm, completed a report for the Village Board on the application for the Special Permit that is at issue in this case.  R.A. 7040-7049.  In addition, the Special Permit application was scrutinized by a Citizens Committee which was actively involved in developing and recommending appropriate permit conditions.  R.A. 7100-7104.  Several members of the Citizens Committee had expertise that was relevant to the application.  In addition, the Committee had frequent meetings with AKRF.  R.A. 7100.
In its Answering Brief, Metro Enviro Transfer acknowledges that the analysis of the Village regarding the environmental impact of the Special Permit was “detailed and exhaustive.”  Br. of Pet’r-Resp’t at 31 n. 45.  This careful analysis led to development of permit conditions that were similarly detailed and were based on rational and permissible considerations of health, safety and welfare.  The permit was heavily negotiated, R.A. 1810-1811, and its recipient accepted it without legal challenge.
The Permit Conditions Were Designed to Protect Public Health and the Environment
The first expert to report on the potential impacts of a construction waste transfer operation at the Metro Enviro Transfer site, John C. Ryan of Roy F. Weston Inc., stated that “during a site visit with the Board, the issue of potential impacts offsite from processing of unacceptable waste . . . was brought up” and that “there is good reason to take every measure to prevent these materials from coming onsite.”  R.A. 2679-2680 (emphasis in original).  He identified the most important deficiency of the permit application at that time as lack of an Operations and Maintenance Manual (“O&M Manual”) “dealing with requirements for staff training and specifically with the identification and handling of unacceptable waste.”  R.A. 2678.  He also discussed other potential impacts such as traffic, air quality, noise and odor.
The report prepared by AKRF referred back to Ryan’s concern about “public health (including issue of handling contaminated waste).”  R.A. 7051.  Under the heading “Public Health,” AKRF reported that the O&M Manual’s limits on acceptable waste and the requirements for training of employees to identify unacceptable waste had been greatly expanded based on comments from the Citizens Committee.  R.A. 7058.  The report also dealt with traffic, community character, odor, and air quality.
The final memorandum of the Citizens Committee included in its recommendations for permit conditions a capacity limit, adoption of the recommended changes to the O&M Manual (which were partially about exclusion of unacceptable waste and training to recognize such waste) and a requirement that “in the event of significant non-compliance, the Village shall be entitled to assess monetary penalties, and to order cessation of operations in the event of repeated violations.”  R.A. 7103.  This final requirement shows that the favorable recommendation of the expert Citizens Committee was based on the assumption that the permit conditions would be obeyed or the facility would be closed.
More recently, the Board had before it the affidavit of Richard S. Brownell P.E., Vice President of Malcolm Pirnie, Inc., another leading environmental consulting firm.  He confirmed that the conditions in the Special Permit were designed to protect health and the environment.  R.A. 1730-1733.  The Board was entitled to rely on this extensive accumulation of expert opinion with regard to the potential health risks and environmental damage that could be caused by violation of the permit conditions.
No challenge to the validity of the permit conditions was ever mounted; to the contrary, the predecessor to Metro Enviro Transfer, which was represented by the same counsel as is appearing in this appeal, promised to abide by the conditions.  R.A. 1821-1822.  Metro Enviro Transfer accepted these conditions when it purchased the facility.  As discussed in the Answering Brief, there were significant compliance issues at the Metro Enviro site when the Special Permit application was initially considered.  Br. of Pet’r-Resp’t at 6 n. 6.  The Village Board granted the Special Permit after considerable negotiation on the basis that compliance would be more easily achieved if a responsible operator were in charge.  The Village has not received what it bargained for – a responsible operator that complies with permit conditions that were expressly designed to protect public health and the environment.
There Is Undisputed Substantial Evidence Of Repeated Serious Violations Of These Permit Conditions
Metro Enviro Transfer does not dispute that the violations actually occurred and that there is substantial evidence on the record to show that they occurred.  See e.g. Annotated Statement of Findings, R.A. 1153-1167.  These violations were not minor, unavoidable, isolated or technical; they were substantial, deliberate and repeated breaches of the core provisions of the permit that were designed to protect public health and the environment.  R.A. 1218.  The Village is astonished that Metro Enviro Transfer, in its Answering Brief, suggests it operated “quite successfully for several years with only minor operational incidents.”  Br. of Pet’r-Resp’t at 17.  In fact, the facility manager deliberately and repeatedly falsified tonnage records to conceal capacity exceedance during the first five months of Metro Enviro Transfer’s operations.  R.A. 1161.  Metro Enviro Transfer knowingly accepted industrial waste at the behest of a senior manager of a closely related entity during a twenty-one-month period ending in March of 2002.  R.A. 1157-1160.  It failed to train workers properly throughout its ownership of the facility, stored waste tires for much longer than the permissible period, and committed numerous other violations.  R.A. 1161-1164.
Metro Enviro Transfer attempts to characterize the industrial waste violations as “technical,” based on an affidavit it obtained from an employee of the company that generated the waste stating that the waste was not hazardous.  Br. of Pet’r-Resp’t at 20-21.  It fails to note that the Statement of Findings issued by the Village Board discussed this affidavit and found it unconvincing, in part because there was no explanation of how an official in New Jersey could have personal knowledge of the contents of individual waste loads from factories in New York.  R.A. 1160.  In addition, the self-serving affidavit gave blanket assurances of complete compliance with hazardous waste laws when violations actually disclosed on the EPA website.  Id.  Whether or not the waste was formally classified as hazardous, it had the potential to cause dangerous conditions, and the Metro Enviro Transfer facility that accepted it was designed to handle construction and demolition debris, not this kind of industrial waste.
Metro Enviro Transfer admitted in mid-2002 that when it received waste tires, its practice was to store them until the container was full, in contravention of a requirement to remove them from the property within 12 hours.  R.A. 1161.  Storage of used tires is a known fire hazard and can provide a breeding ground for mosquitoes.  Id.  The latter has become a major concern since West Nile virus has spread to Westchester County.  R.A. 1758-1770.  Metro Enviro Transfer attempts to imply that this dispute was about whether the permissible period for tire storage was 12 or 24 hours.  Br. of Pet’r-Resp’t at 24 n. 39.  This issue is completely irrelevant because the tires were concededly held until the container for waste tires was full, i.e. for much longer than 24 hours.  R.A. 1954.
Even at this stage of this dispute, Metro Enviro Transfer fails to appreciate the gravity of the violations that it has committed.  The Village has referred to a failure to establish a culture of compliance at this operation as one reason for its denial of the Special Permit.  R.A. 1167.  Metro Enviro Transfer’s attempt to minimize the violations that have been documented further justifies the Village Board’s skepticism about the ability of Metro Enviro Transfer to live up to renewed commitments, made in the face of impending closure, to ensure future complaint operation of the facility.
At the final meeting before the Village Board took its decision, the Board learned for the first time that, in addition to plastic film, some of the loads of industrial waste contained gloves and test tubes with residue from pigments.  R.A. 1217.  This late disclosure of highly pertinent information under questioning from the Village’s counsel only served to further confirm the Board’s impression that Metro Enviro Transfer had failed to voluntarily disclose all relevant information with regard to the industrial waste violations.
Metro Enviro Transfer claims, without any citation to the record, that it established a record of compliance for “the last two years.”  Br. of Pet’r-Resp’t at 61.  This is totally false.  In fact, the training violations came to light as a result of an inspection on November 26, 2002, two months before the Board’s decision on January 27, 2003.  R.A. 1215-1216.  In addition, the Village received notification of 24 additional loads of industrial waste having been shipped through the facility on December 9, 2002, around a month and a half before the final decision was taken.  R.A. 1215.  On January 7, 2003 counsel for Allied Waste Industries Inc. (“Allied”), the owner of Metro Enviro Transfer, provided documents showing that the landfill to which Metro Enviro Transfer shipped the loads containing industrial waste had been cited three times for accepting non-permitted waste.  R.A. 1216.  On January 24, 2003, just three days before the final decision, counsel for Allied acknowledged by letter that this landfill was not authorized to accept the industrial waste that was shipped to it by Metro Enviro Transfer.  R.A. 1217.  The same letter failed to provide information that had been requested about the physical characteristics of the industrial waste.  Id.  As discussed above, some such information was provided orally three days later.
Thus, the Village Board was presented with a situation where new violations were continually emerging right up to three days before the final decision was taken, and highly pertinent and damning information was not revealed until the day of the decision.  Metro Enviro Transfer was in almost continuous violation of its permit conditions from the time it took over the facility.  R.A. 1218.  The references in its Answering Brief to successful operation and a two year record of compliance are merely wishful thinking.  This Court, like the Village Board before it, should not rely on the misleading statements of Metro Enviro Transfer.  The Record amply shows an abysmal record of non-compliance and non-disclosure.
Village’s Action Was Proportional To The Violations
New York law is even more deferential to the decisions of administrative bodies regarding sanctions than it is to their decisions in matters of factual interpretation.
Under CPLR 7803, in an Article 78 proceeding a question may be raised about whether there was “abuse of discretion as to the measure or mode of penalty or discipline imposed.”  The Court of Appeals has explained this means that, while findings of violations of law are reviewable under the substantial evidence standard, “where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is so disproportionate to the offense, in the light of all circumstances, as to be shocking to one’s sense of fairness.”  Pell v. Bd. of Educ. 34 N.Y.2d 222, 232, 365 N.Y.S.2d 833 (1974).  The Court went on to acknowledge that this test is somewhat subjective and clarified that a decision “is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals.”  The Court then noted that deterrence was also a valid consideration, and more serious penalties would be appropriate for intentional violations rather than pure carelessness.  Id. at 234-35.
Using this standard the Pell Court, ruling on several cases heard together, found that a teacher who falsely certified on seven occasions that he was ill was reasonably dismissed because he violated his professional obligations; a police officer who shot his gun out of a window but did not hit anyone was reasonably dismissed because the Chief of Police must protect the community from reasonably foreseen dangers; and a building inspector who took a bribe was reasonably dismissed, because he was guilty of a breach of trust.  Id. at 235-39.
Although Pell dealt with dismissals from public service, the court suggested the discussion was relevant to cases where administrative agencies imposed discipline on regulated entities.  Id. at 241.  In All-Weather Carting Corp. v. Town Bd. of the Town of Islip, 137 Misc.2d 843, 522 N.Y.S.2d 425 (Sup. Co. Suffolk Co. 1987), the town revoked the solid waste disposal permit of a carting company that had been convicted of bribing town officials.  The court quoted from one of the cases decided in the Pell decision as follows: “[t]he question is not whether [the court] might have imposed another or different penalty, but whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers.”  Chilson v. Bd. of Educ., 34 N.Y.2d 222, 238, 356 N.Y.S.2d 833, 845 (1974).  Applying the Pell “shock to one’s sense of fairness” standard, the All-Weather court refused to overturn the revocation of the permit, despite the company’s five year unblemished record before the offense cited.  Id. at 846-67, 522 N.Y.S.2d at 428.
None of the administrative bodies whose actions were reviewed in the above cases were required to make a finding of actual harm to the public.  The issues were of integrity and risk of harm.  Of particular relevance is the police officer who shot his gun without apparently harming anyone.  His dismissal was not justified by actual harm to the public; it was justified by the need to prevent reasonably foreseeable dangers.  A similar approach is taken by suspending the licenses of those convicted of driving under the influence.  We do not punish only those drivers that have accidents, but rather all drivers who are caught when intoxicated, because we seek to minimize the risk of road traffic accidents.  Furthermore, the Pell Court found that dismissal of a teacher was appropriate when he had made false certifications, without evidence that he taught poorly.  Likewise, the law punishes those who attempt crimes even if there is no actual victim.
Because Metro Enviro Transfer deliberately disregarded permit conditions designed to prevent reasonably foreseeable dangers on numerous occasions and intentionally falsified records, it does not shock one’s sense of fairness that the Village Board refused to renew their permit.  The risk of closure may come as a shock to those operators who had hitherto regarded fines for violations as a cost of doing business, but that is precisely the purpose of the action – to prevent more permit violations at Metro Enviro Transfer and deter others from violating their permits.  The Court of Appeals endorsed depriving individuals of their main means of support when they endangered the public and made false certifications.  Strikingly similar conduct by Metro Enviro Transfer justifies a similar sanction.
The authorities cited by Metro Enviro Transfer on proportionality of punishment relate primarily to punishment for criminal violations and constitutional challenges to such punishments.  These authorities are largely inapposite because this case is about administrative sanctions and the Eighth Amendment does not apply.  To the extent that they are relevant, the articles cited by Metro Enviro Transfer confirm that the goals of prevention of further offenses and deterrence are legitimate.  In the Answering Brief, Metro Enviro Transfer quoted eighteenth century philosopher Cesare Beccaria as believing “the purpose of punishment was to prevent the offender, and deter others, from committing similar offenses.”  Br. of Pet’r-Resp’t at 62 n. 76.  The article from which that quote is drawn goes on to say “[w]here risk of detection is known, where crime is calculated, where behavior is not determined, punishment has a place.  Here, however, the pain of punishment administered as a consequence for an offense must exceed the ...profit or positive results the offender expects to reap from his offense.”  Richard Lowell Nygaard, On the Philosophy of Sentencing: Or Why Punish?, 5 Widener J. Pub. L. 237, 257 (1996).  Another article on proportionality of sentencing that was cited no less than four times in the Answering Brief concludes “[h]abitual offenders, or recidivists, are not likely to succeed in such a [proportionality] challenge, unless all prior offenses are minor.”  Kathi A. Drew & R. K. Weaver, Disproportionate Or Excessive Punishments: Is There A Method For Successful Constitutional Challenges?, 2 Tex. Wesleyan L. Rev. 1, 42 (1995).
As the Board made clear in the Statement of Findings, Metro Enviro Transfer habitually and deliberately violated its permit in significant ways that created a risk to the health and safety of the citizens of the Village.  R.A. 1153-1167.  Thus, even by the standards Metro Enviro Transfer seeks to impose on this Court, which are much stricter than the established law of New York, a proportionality challenge would fail.
The Established Violations Were a Sufficient Basis for the Village’s Decision
The Village Code, the terms of the permit itself, and the hearings conducted in front of the Village Board put Metro Enviro Transfer on notice that it would be shut down for failing to comply with the terms of the Special Permit.  Br. of Resp’ts-Appellants at 18-21.  Metro Enviro Transfer does not dispute this and its Brief barely mentions the Village Code provisions that relate to the permit and the terms of the permit itself.  Instead of attempting to refute the Village’s interpretation of the relevant statutory and permit conditions, Metro Enviro Transfer argues strenuously, but entirely irrelevantly, that it would be dangerous to set a precedent that would allow a facility to be closed for a single violation.
This case has nothing to do with a Village attempting to close a business for a single violation.  Metro Enviro Transfer admitted the falsification of material handling records on June 18, 2001, soon after the initial term of the Special Permit expired.  R.A. 1213-1214.  The Village did not move precipitately to shut the facility down, even when it heard evidence that the facility manager had deliberately deceived it.  It was only after a long series of broken promises and additional violations that the Village took decisive action.  R.A. 1166-1167.  The last two notices of violation were issued only a month and a half before the Board took the final decision not to renew the Special Permit.  R.A. 1215-1216.  A reversal of the decision below would merely confirm that facility operators who do not respond to fines and instead continue to violate special permits in ways that threaten health and safety, should fear losing their right to operate.  Far from being “dangerous or disruptive,” this call for careful compliance with special permit conditions is in keeping with prior precedent and settled expectations.  Municipalities impose conditions on special permits to ensure that the uses do not adversely affect the local community.  Compliance is unquestionably for the public good.
Metro Enviro Transfer’s brief acknowledged the essential point of the Village’s argument: “the actual and/or threatened adverse impacts of violations are appropriate and necessary considerations in determining whether to close an existing business.”  Br. of Pet’r-Resp’t at 37.  During the development of the permit conditions, two separate experts from two different engineering firms, plus an expert citizens panel, helped to design the permit conditions to minimize potential impacts on the public and the environment.  The Board also had the benefit of the affidavit of a third engineer, Mr. Brownell, who confirmed that the permit conditions that were violated were designed to protect public health and the environment.  R.A. 1232.  In addition, in the findings statement, the Village Board used its own common sense judgment to conclude that it is dangerous to process industrial quantities of flammable plastic film and test tubes with pigment waste in a facility where fires occur.  R.A. 1160-1161.  Thus, even Metro Enviro Transfer’s own analysis of the legal precedents leads to the inevitable conclusion that the Village’s decision not to renew the Special Permit was justified by substantial evidence of a threat of adverse impact resulting from the admitted violations.  As Metro Enviro Transfer itself appears to acknowledge, there is no requirement in the precedents for evidence of actual harm.
Authorities Stressed By Metro Enviro Transfer Actually Support Village’s Position
Metro Enviro Transfer’s Brief stresses the precedent set by Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 665 N.Y.S.2d 627 (1997), which is the most recent Court of Appeals decision to consider a Special Permit renewal.  Br. of Pet’r-Resp’t at 26-28.  As Respondent notes, this decision turned on the fact that there had been no finding that the facility in question had violated any government regulation.  Id. at 28 (emphasis added).  That fact is in stark contrast to this case, which is about whether undisputed evidence of multiple intentional violations can justify non-renewal of the permit.  The other precedents cited are not directly applicable, because they deal with initial grants of special permits, which means that non-compliance with the previous permit cannot be an issue.
The Village has cited precedent illustrating that courts have approved decisions that used violations as grounds either to revoke or deny renewal of a permit.  Br. of Resp’ts-Appellants at 31-32.  Metro Enviro Transfer has attempted to distinguish some of these cases factually.  The Answering Brief notes that Bell v. Szmigel, 171 A.D.2d 1032, 569 N.Y.S.2d 36 (4th Dept. 1991), concerned a bicycle ramp on private property and that the decision did not discuss the magnitude or impact of the violations.  Br. of Pet’r-Resp’t at 36.  This is hardly surprising if the magnitude or impact of the violations are not part of the legal test for whether non-renewal is justified.  Based purely on violations of permit conditions (apparently without any evidence of injury), the court upheld a zoning board’s refusal to renew the permit.  
        The Answering Brief purports to interpret Northside Salvage Yard, Inc. v. Bd. of Appeals of the Town of Pittsfield, 199 A.D.2d 1001, 608 N.Y.S.2d 13 (4th Dept. 1993), as stating that violations can only justify non-renewal if there is violation of all the conditions of the permit.  Br. of Pet’r-Resp’t at 36-37.  Because the permit at issue in that case apparently had only one condition, this interpretation is possible, but such an interpretation makes no sense when a permit contains many different conditions.  A much more natural reading of the case, and one that dovetails with the language in Bell, Village of Hudson Falls v. DEC, 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), 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. 1991), and Atlantic Cement Co. v. Williams, 129 A.D.2d 84, 516 N.Y.S.2d 523 (3d Dept. 1987), is that urged by the Village, that if reasonable permit conditions are violated, substantial evidence of the violations can be used to justify non-renewal of the permit.
Metro Enviro Transfer has been unable to cite a single authority that holds in favor of the counter proposition it is attempting to advocate – that it is not permissible to deny a permit renewal or revoke a permit based on substantial evidence of deliberate, significant and repeated permit violations, unless there is also substantial evidence of actual impacts upon people or the environment.  See Br. of Pet’r-Resp’t at 34-37.  The most directly applicable precedents concerning permit renewals all support the position of the Village that permit renewals can be denied when the conditions of the permit are substantially, deliberately and repeatedly violated.
The Second Department has held that where a special permit holder has not violated its conditions, but there have nonetheless been some suspected adverse impacts, new special permit conditions can be imposed to minimize such impacts.  C.B.H. Properties Inc. v. Rose, 205 A.D.2d 686, 613 N.Y.S.2d 913 (2d Dept. 1994).  This approach assumes that the permit conditions will be met, because tightening the permit conditions cannot be effective if the permit holder does not comply with the conditions.  The underlying basis of attaching conditions to special permits is that such uses can be made acceptable if the right conditions are first imposed and then observed; if the conditions are violated, the rationale for continuation of the special permit fails.  Thus, allowing permit holders to violate such conditions substantially, deliberately and repeatedly without fear of losing their permits would undermine the whole basis on which special permit uses are regulated.
Metro Enviro Transfer Raises Several Irrelevant Points
Metro Enviro Transfer follows the trial court in improperly urging that the decision of the DEC about renewal of its permit be considered in this decision.  Br. of Pet’r-Resp’t at 37-41.  The decision of DEC is entirely irrelevant to whether the Village acted in an arbitrary and capricious manner because it came after the Board’s final decision was taken.  It was impossible for the Board to give any deference to a decision that had not even been made.  Even if the DEC decision had been taken prior to the Board’s final decision, Metro Enviro Transfer concedes that it would not have pre-empted the Board.  Br. of Pet’r-Resp’t at 37.
Cases that cite the generic standard on issuance of special permits do not help to resolve the issue in this case, beyond illustrating that irrespective of whether there is community opposition, the Board retains the ability to make commonsense judgments about whether an application should be granted, based on substantial evidence.  Metro Enviro Transfer concedes these points.  Br. of Pet’r-Resp’t at 26 & 28 n. 42.  Here, substantial evidence is provided by the extensive record of violations and failure to correct violations.  Such evidence is simply not present when an initial permit application is decided.  This means that cases such as C&A Carbone, Inc. v. Holbrook, 188 A.D.2d 599, 591 N.Y.S.2d 493 (2d Dept. 1992), PDH Properties, LLC v. Planning Bd. Of the Town of Milton, 298 A.D.2d 684, 748 N.Y.S.2d 193 (3d Dept. 2002), and Oyster Bay Assocs. Ltd. P’ship v. Town Bd. Of Town of Oyster Bay, 7/16/2002 N.Y.L.J. 26 (col. 5) (Sup.Ct. Suffolk Cty.), aff’d, 303 A.D.2d 410, 755 N.Y.S.2d 671 (2d Dept. 2003), do not assist Metro Enviro Transfer to argue that the violations must be shown to have caused actual harm to be important.  See Br. of Pet’r-Resp’t at 28-31. Indeed, all three decisions recite that a special permit must be granted only if all the accompanying conditions have been met.
The Answering Brief contains a whole section that purports to show that Metro Enviro Transfer has a constitutionally protected vested right to operate.  Br. of Pet’r-Resp’t at 63-69.  This is incorrect, as the Answering Brief concedes when it states “[t]he special permit was originally issued for the change from one nonconforming use to another in 1998.  The right to that nonconforming use transferred to Metro when it took possession of the Facility.”  Br. of Pet’r-Resp’t at 69 (emphasis added).  Thus, Metro Enviro Transfer obtained the right to operate the facility under the terms of the special permit.  The Village recognized that right, but that recognition did not preclude enforcement action pursuant to the terms of the permit.  R.A. 1149.
Metro Enviro Transfer wastes seven pages of its Answering Brief illustrating that the trio of Court of Appeals decisions did not turn courts into “rubber stamps” for Village Boards.  Br. of Pet’r-Resp’t at 52-58.  The Village has never urged such a proposition; rather the Village asserted that the cases, which all approved decisions of municipal administrative bodies and reversed the Appellate Division, Second Department, were a reminder to courts to show substantial deference to such bodies and not substitute the judgment of the court for the judgment of the administrative body.  Br. of Resp’ts-Appellants at 21-24.  In its Brief, the Village cited seven Appellate Division cases that followed these rulings and upheld decisions of local administrative bodies, because there was substantial evidence to support them.  Id. at 24-25.
Metro Enviro Transfer points out that the facility was monitored by Walter Mack, Esq., but fails to mention that Allied has taken the position that environmental compliance was not the main purpose of the monitorship and that environmental non-compliance did not justify its continuation.  R.A. 1773-1774.  The Answering Brief implies that Mr. Mack did not find any major problems at the facility.  Br. of Pet’r-Resp’t at 12-13.  In fact, Mr. Mack originally discovered the capacity violations and the industrial waste violations and requested that Metro Enviro Transfer inform the Village.  R.A. 1777-1778.  In December 2002, Mr. Mack revealed that he had found evidence of intent to violate environmental law by management level employees.  R.A. 1781.  He also indicated that the only reason that the industrial waste stopped going to Metro Enviro Transfer was that it gummed up the machines used at the site.  Id.  This was at variance with statements to the Board made by Metro Enviro Transfer’s counsel, which indicated (falsely, it turned out) that the waste was eventually rejected because a diligent employee repeatedly tried to prevent industrial waste being accepted.  R.A. 2006.
The Village decided that it did not need to wait for the Mack Report covering the issue because it had sufficient evidence to move ahead and did not wish to further delay its decision.  Instead of relying on material not in the administrative record, as Metro Enviro Transfer has done in its discussion of the DEC decision, the Village moved to supplement the record with the Mack Report covering these issues, finally made public on July 3rd, 2003, but was unsuccessful.  Under all the circumstances, it was inappropriate for Metro Enviro Transfer to imply that Mr. Mack in any way endorsed its operations.
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
                November 3, 2003


Michael B. Gerrard
Richard Webster
399 Park Avenue
New York, New York 10022-4690
(212) 715-1000

Attorneys for Respondents