Company wins temporary order, says town can’t revisit zoning decision
GHENT–TCI of NY, LLC has won a temporary restraining order that prevents the town Planning Board and Zoning Enforcement Officer Gil Raab from taking further action on the Planning Board’s review of TCI’s application to rebuild.
TCI’s West Ghent facility was destroyed last August in a huge fire and explosion. The company had applied in the fall to rebuild the plant, where it drained oil from old electrical transformers, preparing them for recycling. Some of the transformers contained oil contaminated with PCBs, which are hazardous industrial substances.
At last month’s Planning Board meeting, the board authorized attorney Joe Castiglione to draft a letter to Mr. Raab after Mr. Castiglione said he believed TCI’s proposed uses for the site may require three special use permits covering: outdoor storage, bulk storage of oil in tanks, use of the property as a truck terminal. Requiring special use permits might trigger more rigorous and lengthy reviews of TCI’s operations and plans.
Mr. Castiglione was retained by the town to assist in the Planning Board’s review of TCI’s application to rebuild, and he has drafted and delivered a letter that asks whether Mr. Raab believes TCI requires the special use permits going forward.
But last month TCI attorney Bill Better said that Mr. Raab had already made a determination in October that no special use permits were needed, and that there was no statutory authority for the board to “ask a ZEO to reconsider his own decision,” a reference to Mr. Raab’s position as zoning enforcement officer.
TCI’s civil suit, filed as what’s called an Article 78 petition, maintains that the board is “exceeding its authority by directing the zoning enforcement officer to reconsider a zoning determination he has already made.” The pleading convinced County Court Judge Jonathan Nichols to issue the order last week.
The company says that after it submitted its application to rebuild, Mr. Raab responded with a letter dated October 12 that “determined that TCI’s proposed use was a permitted use at the site,” and that the letter “imposed no other conditions on TCI,” other than the need for a site plan approval.
The company’s suit says that in the five months since Mr. Raab’s determination, neither Mr. Raab nor the Planning Board had suggested TCI’s proposed uses violated the zoning code. The legal documents filed by TCI say that the deadline for any challenge to Mr. Raab’s decision expired 30 days after the decision was issued.
But at last month’s Planning Board meeting, Mr. Castiglione said TCI did not include an adequate description of the company’s proposed uses on the original application, and that the town had more information now than it did in October.
TCI’s suit says that Mr. Raab had never indicated he was unaware of TCI’s proposed operations, adding that “whether the Planning Board understood the full scope of the TCI operations is irrelevant to the zoning compliance determination–which can only be made by the Zoning Enforcement Officer.”
The temporary restraining order issued by Judge Nichols imposes a stay on the Planning Board’s review and prevents Mr. Raab from issuing any new determination.
A statement issued by TCI says the purpose of the suit is to “prevent the town from engaging further in arbitrary rulemaking as it reviews the site plan to rebuild our facility.”
“In addition, the Town Planning Board and the Town Board have failed to exercise institutional control over their official proceedings, allowing increasingly raucous, hostile and uncivil behavior to continue unchecked,” the statement added. “Having lost confidence in either board to conduct a fair, impartial and orderly review, we feel we have no choice but to defend our rights in court.”
Mr. Castiglione said in a phone conversation after Judge Nichols issued the order that the town is disappointed because the court proceedings will delay the review process, but he maintained that the actions of town officials were consistent with their duties. “We think it is well [within] our authority to make sure a site plan is consistent with zoning laws,” he said.
Mr. Raab is optimistic that “the town should prevail,” in the case, adding that he didn’t see anything in the legal documents that shows the town did “anything improper.”
Planning Board Chairman Jonathan Walters told The Columbia Paper that he was surprised with the court’s involvement in the process.
“Judge Nichols is a good judge, and I respect him a lot,” he said. “I’m sure at the end of the day he’ll make the right decision.”
