Town of Copake v. 13 Lackawanna Props., LLC

• Decision Date: 18 October 2012
• Citation: 2012 N.Y. Slip Op. 07008,99 A.D.3d 1061,952 N.Y.S.2d 780
• Parties: TOWN OF COPAKE, Respondent, v. 13 LACKAWANNA PROPERTIES, LLC, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 1061

952 N.Y.S.2d 780

2012 N.Y. Slip Op. 07008

TOWN OF COPAKE, Respondent,

v.13 LACKAWANNA PROPERTIES, LLC, et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 18, 2012.

Sullivan Gardner, PC, New York City (Brian L. Gardner of counsel), for appellants.

Rapport Meyers, LLP, Hudson (Victor M. Meyers of counsel), for respondent.

Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.

MERCURE, J.P.

Appeal from an order and judgment of the Supreme Court (Nichols, J.), entered June 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 of Supreme Court that held defendants in civil and criminal contempt based upon their violation of a temporary restraining order (hereinafter TRO) issued in this action (73 A.D.3d 1308, 900 N.Y.S.2d 508 [2010];see also Matter of Cascino v. Judges of the Albany County Ct., 95 A.D.3d 1458, 944 N.Y.S.2d 351 [2012] ). Plaintiff seeks to enjoin defendants from violating its local land use laws. The TRO prohibited construction, excavation and depositing of materials on defendants' 310–acre farm located in the Town of Copake, Columbia County,¹ except for limited activity in connection with farming and actions necessary to comply with an unrelated consent decree requiring wetlands restoration.

The action ultimately proceeded to trial, at the close of which Supreme Court concluded that defendants had violated Code of Town of Copake §§ 129–9 and 232–7 and chapter 194, which relate 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. The court further held that defendants created a public nuisance, and violated a 2003 stipulation, which was entered into between the parties in a prior action and required defendants both to obtain a permit from plaintiff prior to commencing any construction on the property and to use the parcel solely for agriculture. Thereafter, the court issued judgment permanently enjoining defendants from engaging in unauthorized uses of the property and violations of the Town Code, as well as directing defendants to undertake various remedial 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 directing the removal of 150,000 yards of fill. Contrary to defendants' assertion that the depositing of the fill was not in violation of the Town Code, chapter 194 of that statute provides that “[n]o person shall cause to be dumped, deposited or thrown any solid waste” on land within the Town (Code of 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 and siding material or other debris of a similar nature which accumulates or is incidental to the construction or renovation of homes, buildings, public works or other projects” (Code of Town of Copake § 194–2[B], [C] ). In our view, Supreme Court properly concluded that defendants 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 derived from excavation, construction and public works projects located in and around New York City—to the property without applying for a permit, and that he intended to bring a million yards of that fill material to the property. The testimony and photographs of a neighboring landowner, the zoning enforcement officer and a wildlife biologist employed by the Department of Environmental Conservation demonstrated that defendants also deposited garbage, plastic bags, glass, concrete, bricks, cement blocks, tile and rebar. The neighboring landowner further testified that he saw defendants' personnel use bulldozers to level out the material and then cover it with topsoil or finer graded, ground-up material. Defendants then tried to plant corn, which reached 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 hauled dirt, 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 to improve the land for farming, and defendants now rely upon that testimony in arguing that Supreme Court's order unreasonably restricts their farming operations under Agriculture and Markets Law § 305–a ( see generally Town of Lysander v. Hafner, 96 N.Y.2d 558, 561–563, 733 N.Y.S.2d 358, 759 N.E.2d 356 [2001];Matter of Inter–Lakes Health, Inc. v. Town of Ticonderoga Town Bd., 13 A.D.3d 846, 847–848, 786 N.Y.S.2d 643 [2004] ), we defer to Supreme Court's rejection of this testimony as lacking credibility ( see Town of Caroga v. Herms, 62 A.D.3d 1121, 1125, 878 N.Y.S.2d 834 [2009],lv. denied13 N.Y.3d 708, 2009 WL 3350758 [2009] ).² Nor is there merit to defendants' contention that plaintiff should be equitably estopped from seeking an order directing removal of the fill material because, defendants allege, plaintiff's building inspector witnessed the deposit of the fill and failed to take action to stop it. Defendants' claim in this regard is belied by the 2005 stop-work order contained in the record; that order prohibited the dumping of construction and demolition debris under Code of Town of Copake §§ 194–2(C) and 194–3. Even accepting defendants' argument that they deposited only “dead dirt” derived from construction, excavation and public works projects, such “earth” is within the definition of “construction debris” contained within section 194–2(C), as defendants could have discovered by exercisingreasonable diligence ( see Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 [1988],appeal dismissed and cert. denied488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9 [1988];Matter of Clear Channel Outdoor, Inc. v. Town Bd. of Town of Windham, 9 A.D.3d 802, 804, 780 N.Y.S.2d 822 [2004] ). In any event, defendants have failed to make the required showing of “fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon” necessary to apply the doctrine of equitable estoppel against a municipality ( Stone Bridge Farms, Inc. v. County of Columbia, 88 A.D.3d 1209, 1212, 931 N.Y.S.2d 449 [2011] [internal quotation marks and citation omitted]; see Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 A.D.3d 1146, 1148–1149, 909 N.Y.S.2d 564 [2010] ).

Turning to the equitable remedy ordered by Supreme Court, given plaintiff's issuance of the stop-work order and defendants'...