Pete Drown Inc. v. Town Bd. of Town of Ellenburg
| Decision Date | 25 July 1996 |
| Parties | In the Matter of PETE DROWN INC. et al., Appellants, v. TOWN BOARD OF the TOWN OF ELLENBURG, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Whiteman, Osterman & Hanna (Philip H. Dixon, of counsel), Albany, for appellants.
Bartlett, Pontiff, Stewart & Rhodes P.C. (Lawrence H. Weintraub, of counsel), Lake Placid, for respondent.
Before CARDONA, P.J., and MIKOLL, CREW, YESAWICH and SPAIN, JJ.
Appeal from a judgment of the Supreme Court (Ryan Jr., J.), entered April 14, 1995 in Clinton County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, inter alia, challenge a certain zoning ordinance enacted by respondent.
In 1988, petitioner Elvin F. Drown, president of petitioner Pete Drown Inc. (hereinafter PDI), decided to construct a medical waste incineration facility in the Town of Ellenburg, Clinton County. The Town had no zoning ordinance at that time. After initial plans to locate the incinerator on the site of a crematorium owned and operated by PDI were rejected by the State Division of Cemeteries, petitioners purchased a separate parcel of property for the planned waste disposal facility. Petitioners also made arrangements to borrow over $500,000 to purchase the incinerator and, in November 1989, applied to the Department of Environmental Conservation (hereinafter DEC) for a permit to operate it.
In January 1990, shortly after receiving notice of petitioners' intentions, respondent passed a resolution prohibiting the handling of waste for incineration in the Town; a month later, it enacted a local law banning the operation of commercial incinerators. In March 1990, respondent appointed a zoning commission and, in preparation for the adoption of a land use plan and zoning law, imposed a moratorium on the construction and establishment of commercial buildings. Public hearings were held and, ultimately, in April 1991, respondent passed a comprehensive zoning law that forbade the incineration of commercial or hazardous (including infectious) waste within the Town. By this time, petitioners allege that they had spent over $850,000 for the project, the majority of which was expended to purchase and ready the incinerator itself, which was held in storage pending receipt of the necessary DEC permit. That permit was not issued until July 1994, when the State Environmental Quality Review process (see, ECL art. 8) was complete.
Petitioners thereafter commenced this combined action and proceeding seeking to annul the Town zoning law or, in the alternative, to obtain a declaration that they had acquired a vested right to operate the incinerator prior to its enactment. Their application having been dismissed by Supreme Court, petitioners appeal.
We affirm. Petitioners' contention that the zoning law is invalid because the procedural requirements of Town Law § 264(2) were not met--namely, that the Town neglected to notify two adjoining municipalities of the public hearings held with respect thereto--is ineffectual, given the uncontroverted proof that the law was adopted in accordance with the alternate procedure outlined in Municipal Home Rule Law §§ 20 and 27 (see, Village of Savona v. Soles, 84 A.D.2d 683, 684, 446 N.Y.S.2d 639; Yoga Socy. of N.Y. v. Incorporated Town of Monroe, 56 A.D.2d...
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Anschutz Exploration Corp. v. Town of Dryden
...Statute of Local Governments § 10(6) and the Municipal Home Rule Law ( see Matter of Pete Drown, Inc. v. Town Bd. of Town of Ellenburg, 229 A.D.2d 877, 646 N.Y.S.2d 205 [1996], lv. denied 89 N.Y.2d 802, 653 N.Y.S.2d 279, 675 N.E.2d 1232 [1996]; Yoga Socy. of N.Y. v. Incorporated Town of Mon......
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Case List
..., 115 Cal. Rptr. 67, 39 Cal. App. 3d 830 (1974) People v. Van Cleave , 519 N.E.2d 63 (Ill. 1988) Pete Drown Inc. v. Town of Ellenburg , 229 A.D.2d 877, 646 N.Y.S.2d 205 (1996) BARGAINING FOR DEVELOPMENT Pettitt v. City of Fresno , 110 Cal. Rptr. 262, 34 Cal. App. 3d 813 (1973) Petrosky v. Z......
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Vested Rights
...engineering, and surveying fees). 767. 133 Cal. Rptr. 664, 66 Cal. App. 3d 57 (1976). 768. 17 Cal. 3d 785, 553 P.2d 546 (1976). 769. 229 A.D.2d 877, 646 N.Y.S.2d 205 (N.Y. 1996). V. VESTED RIGHTS lar project to vest. 770 Thus, for example, rushing to complete or begin a project in order to ......