| Town of Copake v 13 Lackawanna Props., LLC |
| 2012 NY Slip Op 07008 [99 AD3d 1061] |
| October 18, 2012 |
| Appellate Division, Third Department |
| Town of Copake, Respondent, v 13 Lackawanna Properties, LLC,et al., Appellants. |
—[*1] Rapport Meyers, LLP, Hudson (Victor M. Meyers of counsel), for respondent.
Mercure, J.P. Appeal from an order and judgment of the Supreme Court (Nichols, J.), enteredJune 7, 2012 in Columbia County, upon a decision of the court in favor of plaintiff.
The underlying facts are more fully set forth in our prior decision affirming an order ofSupreme Court that held defendants in civil and criminal contempt based upon their violation ofa temporary restraining order (hereinafter TRO) issued in this action (Town of Copake v 13 Lackawanna Props.,LLC, 73 AD3d 1308 [2010]; see also Matter of Cascino v Judges of the Albany County Ct., 95 AD3d1458 [2012]). Plaintiff seeks to enjoin defendants from violating its local land use laws. TheTRO prohibited construction, excavation and depositing of materials on defendants' 310-acrefarm located in the Town of Copake, Columbia County,[FN1]except for limited activity in connection with farming and actions necessary to comply with anunrelated consent decree requiring wetlands restoration.
The action ultimately proceeded to trial, at the close of which Supreme Court concluded thatdefendants had violated Code of Town of Copake §§ 129-9 and 232-7 and chapter194, which relate to construction undertaken without required building permits, dumping of solidwaste and [*2]unauthorized use of the property—here,depositing solid waste, operating a recycling business, and unauthorized storage of commercialequipment and construction materials. The court further held that defendants created a publicnuisance, and violated a 2003 stipulation, which was entered into between the parties in a prioraction and required defendants both to obtain a permit from plaintiff prior to commencing anyconstruction on the property and to use the parcel solely for agriculture. Thereafter, the courtissued judgment permanently enjoining defendants from engaging in unauthorized uses of theproperty and violations of the Town Code, as well as directing defendants to undertake variousremedial measures, including the removal of at least 150,000 cubic yards of fill material.Defendants appeal, and we now affirm with certain modifications.
Initially, we reject defendants' argument that Supreme Court abused its discretion in directingthe removal of 150,000 yards of fill. Contrary to defendants' assertion that the depositing of thefill was not in violation of the Town Code, chapter 194 of that statute provides that "[n]o personshall cause to be dumped, deposited or thrown any solid waste" on land within the Town (Codeof Town of Copake § 194-3). The definition of solid waste encompasses "dust and dirt,rock, concrete or other materials, including earth wastes from building operations" and"construction debris" such as "scrap lumber, metal, earth, sand, brick, stone, plaster, roofing andsiding material or other debris of a similar nature which accumulates or is incidental to theconstruction or renovation of homes, buildings, public works or other projects" (Code of Townof Copake § 194-2 [B], [C]). In our view, Supreme Court properly concluded thatdefendants violated chapter 194 by depositing solid waste on the premises, including dirt, rebar,rock, concrete, asphalt, bricks, plastic bags and bottles, and leaves.
Defendant Salvatore Cascino admitted that he brought "dead dirt"—which was derivedfrom excavation, construction and public works projects located in and around New YorkCity—to the property without applying for a permit, and that he intended to bring a millionyards of that fill material to the property. The testimony and photographs of a neighboringlandowner, the zoning enforcement officer and a wildlife biologist employed by the Departmentof Environmental Conservation demonstrated that defendants also deposited garbage, plasticbags, glass, concrete, bricks, cement blocks, tile and rebar. The neighboring landowner furthertestified that he saw defendants' personnel use bulldozers to level out the material and then coverit with topsoil or finer graded, ground-up material. Defendants then tried to plant corn, whichreached only one quarter of the height of the corn grown on the uncontaminated soil on the farm.A truck driver employed by defendant Copake Valley Farm, LLC further testified that he hauleddirt, concrete, stone and brick from the Bronx and dumped the material on the premises.
Although Cascino testified in a conclusory fashion that defendants spread the material toimprove the land for farming, and defendants now rely upon that testimony in arguing thatSupreme Court's order unreasonably restricts their farming operations under Agriculture andMarkets Law § 305-a (see generally Town of Lysander v Hafner, 96 NY2d 558,561-563 [2001]; Matter of Inter-LakesHealth, Inc. v Town of Ticonderoga Town Bd., 13 AD3d 846, 847-848 [2004]), wedefer to Supreme Court's rejection of this testimony as lacking credibility (see Town of Caroga v Herms, 62AD3d 1121, 1125 [2009], lv denied 13 NY3d 708 [2009]).[FN2]Nor is there [*3]merit to defendants' contention that plaintiffshould be equitably estopped from seeking an order directing removal of the fill materialbecause, defendants allege, plaintiff's building inspector witnessed the deposit of the fill andfailed to take action to stop it. Defendants' claim in this regard is belied by the 2005 stop-workorder contained in the record; that order prohibited the dumping of construction and demolitiondebris under Code of Town of Copake §§ 194-2 (C) and 194-3. Even acceptingdefendants' argument that they deposited only "dead dirt" derived from construction, excavationand public works projects, such "earth" is within the definition of "construction debris" containedwithin section 194-2 (C), as defendants could have discovered by exercising reasonable diligence(see Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988],appeal dismissed and cert denied 488 US 801 [1988]; Matter of Clear Channel Outdoor, Inc. v Town Bd. of Town ofWindham, 9 AD3d 802, 804 [2004]). In any event, defendants have failed to make therequired showing of "fraud, misrepresentation, deception, or similar affirmative misconduct,along with reasonable reliance thereon" necessary to apply the doctrine of equitable estoppelagainst a municipality (Stone BridgeFarms, Inc. v County of Columbia, 88 AD3d 1209, 1212 [2011] [internal quotationmarks and citation omitted]; see Matterof Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 AD3d 1146, 1148-1149[2010]).
Turning to the equitable remedy ordered by Supreme Court, given plaintiff's issuance of thestop-work order and defendants' persistent, willful disregard of prior court orders and theirattempts to frustrate plaintiff's enforcement of its local land use regulations, Supreme Courtproperly directed the removal of at least 150,000 cubic yards of fill material (73 AD3d at1309-1310; see Town of Caroga v Herms, 62 AD3d at 1125-1126; Beneke v Town of Santa Clara, 45AD3d 1164, 1164 [2007], lv denied 10 NY3d 706 [2008]; Matter of Massa vCity of Kingston, 284 AD2d 836, 839 [2001], lv denied 97 NY2d 603 [2001]).Similarly, the court did not abuse its discretion in directing the removal of the steel bridge, stonewall and alterations to the farm stand given Cascino's admission that defendants failed to obtainbuilding permits for those projects, as required by Code of Town of Copake § 129-9.Defendants' conduct in this regard also violated the 2003 stipulation requiring them to obtain apermit from plaintiff prior to commencing any construction, and the construction of the stonewall and alterations to the farm stand were made in violation of the TRO (73 AD3d at1309-1310). Indeed, the order that we affirmed finding defendants in contempt, which was basedupon defendants' violation of the TRO, directed the removal of the stone wall (id. at1309), and defendants previously admitted in a 2007 consent decree settling an action broughtagainst them by the Department of Environmental Conservation that they built the bridge "inviolation of [ECL a]rticle 15."
We agree with defendants, however, that Supreme Court erred in finding a violation of Codeof Town of Copake § 129-9 based upon defendants enlarging the existing farm road on thepremises. Plaintiff failed to demonstrate that the farm road is a "structure" within the meaning ofthe Town Code or that a permit for widening the road was required under the Town Code. Thus,that portion of the court's order directing defendants to restore the farm road to its previouscondition must be reversed. Finally, certain excavation and repair activities do not require [*4]permits (see Code of Town of Copake §§129-9 [A]; 232-9 [B] [2]), and plaintiff concedes that the court's order should be read to permitconstruction and excavation activities in furtherance of farming operations so long as buildingpermits are obtained when "necessary as required by the Town Code." In addition, plaintiffconcedes that the injunction should not be read as prohibiting defendants' use of the garage onthe premises for the storage of farm equipment or the use of the property for lawful agriculturalactivities. Accordingly, we further modify the injunction to clarify that such uses are permitted.
Defendants' remaining arguments are either unpreserved or, upon consideration, have beenfound to lack merit.
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order and judgment ismodified, on the law, without costs, by reversing so much thereof as directed defendants torestore the "farm road" to its preexisting condition and by clarifying that defendants are notenjoined from (1) performing any construction or excavation on the premises that does notrequire a permit pursuant to the Code of Town of Copake, (2) engaging in agriculturalenterprises, and (3) using the garage for the maintenance, repair and storage of farm equipment,and, as so modified, affirmed.
Footnote 1: Defendant Copake Valley Farm,LLC is a registered hauler of solid waste; defendant Salvatore Cascino is also the owner of BronxCounty Recycling, which recycles excavation materials.
Footnote 2: In addition, we note that thecases relied upon by defendants in support of this argument are distinguishable becausedefendants failed to obtain an opinion from the Commissioner of Agriculture and Marketsregarding whether plaintiff's administration of its local land use regulations unreasonablyrestricted its farm operations (see Town of Lysander v Hafner, 96 NY2d at 563-565;Matter of Inter-Lakes Health, Inc. v Town of Ticonderoga Town Bd., 13 AD3d at 846).