Posted by: Patricia Salkin | November 9, 2012

N.Y. Appellate Court upholds TRO and Finds Defendant Must Remove Illegally Dumped Waste

This opinion addresses an appeal brought by the defendant, 13 Lackawanna Properties, following an order of the Supreme Court, Columbia County in favor of the plaintiff, Town of Copake.  The Supreme Court found the defendant violated Town zoning regulations, settlement stipulations, and a temporary restraining order (hereinafter “TRO”).  The defendant appealed and the Appellate Division, Third Department affirmed, but modified, the Supreme Court’s order.

This action concerns a long and protected history between the defendant and the Town of Copake.  The Town initiated this action seeking an injunction that would prohibit the defendant from violating local land use regulations.  The defendant was subject to a TRO that “prohibited construction, excavation and depositing of materials on defendants” 310 acre agricultural property.  The Supreme Court found the defendant violated numerous land use laws relating to “construction undertaken without required building permits, dumping of solid waste and unauthorized use of the property – here, depositing solid waste, operating a recycling business, and unauthorized storage of commercial equipment and construction materials.”  In addition, the Supreme Court found the defendant’s use was a public nuisance and in violation of a stipulation that required the defendant to obtain construction permits.  The Supreme Court permanently enjoined the defendant from unauthorized use of the land, and ordered remedial measures, including the removal of at least 150,000 cubic feet of fill material.

The Second Department found the Supreme Court did not abuse its discretion in ordering the removal of the fill material.  The local code provides that a party must obtain a permit to deposit solid waste on their property.  The local code defines solid waste as including various forms of material, including earth wastes, construction debris, rock and scrap metal.  The Second Department agreed with the Supreme Court that the material deposited on the defendant’s property was solid waste, and a permit was required, as the waste deposited was “dirt, rebar, rock, concrete, asphalt, bricks, plastic bags and bottles, and leaves.”

The court then addressed the defendant’s argument that the Town should have been equitably estopped from seeking the removal of the fill material, as the Town was aware of the material being deposited, but failed to take action.  The court found the estoppel claim failed as a stop work order was issued, and the defendant failed to show any Town misconduct that the defendant relied on.

The court also found that the Supreme Court did not abuse its discretion in ordering the removal of structures built on the defendant’s property.  The defendant was properly ordered to remove these structures because they were built without the defendant first obtaining building permits from the Town.  In addition, the building of the structures was also in violation of the aforementioned stipulation between the parties.

In reviewing the remainder of the Supreme Court’s order, the Second Department did agree with the defendant that some portions needed to be clarified or modified.  The order requiring removal of structures built without a permit did not include the enlargement of a farm road, as the road was not a structure, and, thus, a permit was not required.  In addition, the court found that the defendant could use a garage for agriculture related operations, and also found that the defendant could engage in construction and excavation activities if they are related to the agricultural operations of the property and permits are obtained from the Town.

Town of Copake v. 13 Lackawanna Properties, 2012 WL 4933320 (NYAD  3rd Dep’t, 10/18/ 2012).

The opinion can be accessed here.

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