Lawsuit filed over clay mine approval
WATERLOO — Concerned Citizens of Seneca County and property owner Dixie Lemmon have filed an Article 78 proceeding against the Town Board and Seneca Meadows Landfill.
The litigation relates to the Town Board’s 3-2 vote July 28 to approve Seneca Meadows’ request for a permit to mine clay under Chapter 80 of the town code.
The Article 78 petition will be amended to add the town Planning Board as a defendant in light of its 5-2 vote Aug. 26 to issue a special use permit for Meadow View Mine.
The lawsuit seeks a ruling to annul and vacate the 122-acre clay mine approval votes of July and August.
Geneva attorney Rich Reiben filed the petition on behalf of Concerned Citizens and Lemmon. The parties are scheduled to appear before Acting Supreme Court Judge Patrick Falvey of Penn Yan at 11 a.m. Oct. 16 in state Supreme Court of Seneca County.
Don Gentilcore, Seneca Meadows regional manager, said the company has worked for five years to obtain the permits for the Meadow View Mine, and has listened to community members and Waterloo town officials in modifying its site plan accordingly.
“Our diligence in this matter has earned us approval from both the state Department of Environmental Conservation and the town of Waterloo,” he said. “While this baseless lawsuit is regrettable, we plan to continue forward with the project with the environmental integrity that our community has come to expect.”
Town Supervisor Gary Westfall said he’s looking forward to the court deciding the issue “once and for all.”
The Article 78 lists these causes of action:
• The Town Board failed to comply with the 2005 Community Benefits Agreement with the landfill.
Concerned Citizens claims the agreement has Seneca Meadows and the town agreeing that any proposed mine application would be subject to “any or all” existing local laws or mining ordinances in place at the time of the agreement.
Chapter 80 of the town code that regulates mining activity in the town was enacted in 2000. The petitioners argue that provisions of Chapter 80 should apply to any proposed mining operation of Seneca Meadows, including a provision that no excavation shall be permitted within 1,000 feet of an existing residence or public building.
That is greater than the 300-foot setback in the initial site plan approved by the state Department of Environmental Conservation and Town Board.
They also claim Chapter 80 provides for more restrictive hours of operation.
The Article 78 states the board’s July 28 decision and the Planning Board’s Aug. 26 decision violate the community benefits agreement and is “arbitrary, capricious, unreasonable, unlawful and should be declared null and void.”
• The Town Board’s decision was in violation of the town zoning ordinance, the petition alleges.
It claims the final site plan adopted by the Town Board shows an access road providing ingress and egress to the excavation area, over which heavy industrial vehicles would frequently enter and exit the site.
The petition claims that access road would run through areas zoned R-1 or one-family residential, which is not a permitted use in those zones. The lawsuit says Seneca Meadows did not apply for a zoning change or variance for the access areas.
They claim that would be a case of a “self-created hardship” and has not demonstrated that denial of an access road across residential property would render the mine property without use or value.
• The approval was a violation of the state DEC mining permit terms.
Concerned Citizens claims the mine plan maps submitted to DEC that was part of the permit it received show an access road to the parcel that intersects Burgess Road some 500 feet north of Salcman Road. However, the final mine plan approved by the Town Board shows an access road that intersects Burgess Road directly opposite Salcman Road, which wasn’t approved by the DEC permit.
The change in the road location is said to impact Lemmon and other area residents, with truck lights shining into their residences of Lemmon and others, along with noise and diesel fumes.
• The project failed to properly mitigate damage to landowners.
The Property Value Protection Plan proposed by the landfill only provides compensation to affected residents who wish to sell their properties.
“No account is taken of the diminution in value of use, occupancy and quiet enjoyment of properties by affected owners/residents who may be unwilling or unable to sell their residence, but who live with a clay mine nearby for at least 11 years,” it states.
The litigation claims Chapter 80 requires protection of property values.
The petition seeks a ruling to direct the Town Board deny the Seneca Meadows application as defective. It directs the landfill to adopt a Property Value Protection Plan that effectively compensates nearby landowners for the loss of use, occupancy and quiet enjoyment of their residential properties.
In support of the petition, Lemmon submitted an affidavit, as did Glen Silver, president of Concerned Citizens of Seneca County. Lemmon claims her property at 1569 North Road is surrounded on all sides by property owned by Seneca Meadows.
“Because we would be the next-door neighbor to the mine, my family and I would be affected by increased dust, air pollution from diesel exhaust, water pollution from petroleum discharges, visual pollution from mining activities and equipment, noises and odors from equipment and other adverse effects by the mine operation to a degree far greater that the general public,” Lemmon stated. “I believe this mine would create a hazard to our health and peace of mind, in addition to financial damage to our property value.”
Lemmon claims berms and other screening is inadequate and the Property Value Protection Plan does not compensate her in any manner.
Silver’s affidavit states the mine violates town laws and the community benefits agreement and would “fundamentally change the character of the neighborhood surrounding the mine.”http://www.fltimes.com/news/article_22ac320a-2f8a-11e4-b0c8-0019bb2963f4.html