NEW HAVEN – The lawsuit filed by numerous residents of Darrow Rd., in opposition to the New Haven Planning Board’s Aug. 25 approval of Jason Simmons’ and Circle T Enterprise’s cement plant site plan, is expected to be decided this week by State Supreme Court Justice Gregory Gilbert.

The Article 78 lawsuit has been filed by residents Cynthia Konu, Elmer Konu, J. Frederick Ringwald, Karen Ringwald, Andrew Merriam, Shannon Merriam, Roger Aubertine, Karlene Aubertine, Nicholas Aubertine, and Russell Christensen against the Town of New Haven, Town of New Haven Planning Board, Jason Simmons, and Circle T Enterprises LLC.

The suit asks the court to: vacate and annul the decision of the Planning Board granting site plan approval to Jason Simmons and Circle T for an unenclosed concrete manufacturing facility; declare that Jason Simmons and Circle T’s unenclosed concrete manufacturing facility is prohibited under the Town Site Plan Ordinance, and the Planning Board without authority to approve the illegal use; issue a temporary restraining order stopping Simmons and/or Circle T from operating the unenclosed concrete manufacturing facility/batch plant pending a hearing and determination of the Darrow Rd. residents’ request for a preliminary injunction; issue an injunction stopping Simmons and/or Circle T from operating the unenclosed concrete manufacturing facility/batch plant during the pendency of this action; and award such other, further and additional relief as the Court may deem just and proper together with costs and disbursement of this action.

Here, from their court filing, is the residents’ argument for overturning the Planning Board’s decision:

“Petitioners have standing to pursue this action. Further, Petitioners demonstrate by clear and convincing evidence that they are likely to succeed on the merits of their Petition, irreparable harm is and will continue to occur without injunctive relief, and the balance of equities favors the Petitioners.

“In short, the Town’s Site Plan Ordinance expressly prohibits unenclosed manufacturing facilities and industrial uses that are likely to create noise and nuisance perceptible beyond property boundaries and any other nuisance.

“Nonetheless the Town approved Respondents unenclosed concrete manufacturing facility at 178 Darrow Road in the Town. Within three weeks of the Planning Board’s decision, Respondents’ (the town, the Planning Board, Simmons, and Circle T) unenclosed concrete manufacturing plant was up and running, subjecting Petitioners (the residents of Darrow Rd.) to harmful noise and nuisance.

“Petitioners brought this hybrid Article 78 Petition and Compliant alleging the Town failed to take the requisite hard look under SEQRA (State Environmental Quality Review Act) and approved a facility plainly considered illegal under the Town’s Site Plan Ordinance. Therefore, the Town’s decision was arbitrary, capricious, and should be annulled, and the Planning Board lacked the authority to approve the development pursuant to the Town’s Site Plan Ordinance.

“Declaratory judgment is perfectly tailored for this situation: is Respondents’ unenclosed concrete manufacturing facility illegal under the under the plain language of the Site Plan Ordinance §§ 1.90(B)(1) and 5.10, and, consequently, did the Planning Board have authority to approve an illegal use?

“Petitioners rights are directly impacted by this declaratory judgment because if the facility is illegal then it must be removed from Darrow Road, thus restoring the tranquil neighborhood and quality of life Petitioners previously enjoyed.

“In lieu of actually discussing the three elements of injunctive relief, the Respondents resort to a pre-answer motion to dismiss, arguing Petitioners do not have standing to bring the SEQRA cause of action. This argument, dispatched with above, does not offer any substantial opposition to the injunctive relief.

“Meanwhile, the Town simply claims that an injunction is not the proper procedure for review of a planning board decision. The substantive of Town’s argument is that the Petitioners have not demonstrated entitlement to relief because the facility is already operating.

“That is precisely why the Petitioners sought injunctive relief. Meanwhile, Petitioners’ Article 78 causes of action seeking to annul the Planning Board Decision as arbitrary and capricious and in violation of SEQRA are separate and apart from their request for injunctive relief.

“The mere fact that a concrete manufacturing facility was operational days after Planning Board approval and 13 days before the 30 day statute of limitations expires, speaks volumes to the necessity of this injunctive relief.

“First, Petitioners are likely to succeed on the merits because the Planning Board’s decision was arbitrary and capricious, in violation of plain language of the SEQRA regulations, and contradictory to plain language of the Town’s Site Plan Ordinance. The text of these laws speak for themselves.

“SEQRA Regulation, 6 NYCRR 617.5(c)(9) plainly states that: construction or expansion of a primary or accessory/appurtenant, nonresidential structure or facility involving less than 4,000 square feet of gross floor area and not involving a change in zoning or a use variance and consistent with local land use controls, but not radio communication or microwave transmission facilities.

“On the record, the Planning Board misquoted and/or misapprehended this SEQRA regulation, but, in any event, the concrete manufacturing facility is simply not consistent with local land use controls—the Site Plan Ordinance.

“The Town’s Site Plan Ordinance prohibits certain uses within the Town, including ‘unenclosed manufacturing or processing of goods and materials.’ NYSCEF Doc No. 3 § 1.90(B)(1). The Site Plan Ordinance also ‘controls any commercial and industrial uses, and no such use shall be expanded, permitted, established, maintained or conducted which shall be likely to cause:

A. Excessive smoke, fumes, gas, dust, odor or any other atmospheric pollutant beyond the boundaries of the lot whereon such use is located . . . .

B. Noise, perceptible beyond the boundaries of the lot occupied by such use causes the same.

C. Any pollution or discharge of any waste material whatsoever into any watercourse, open ditch or land surface . . . .

F. Glare or vibration perceptible beyond the lot lines whereon such use is conducted.

G. Hazard to person or property by reason of fire, explosion, radiation or other cause.

H. Any other nuisance harmful to person or property.’

“The consistency with local land use controls is conspicuously absent from the unenclosed concrete manufacturing facility. Therefore, the Planning Board misclassified the facility for SEQRA purposes.

“Likewise, the Declaratory Judgment action is likely to succeed because, as shown above, the unenclosed concrete manufacturing facility is simply not permissible under the Site Plan Ordinance.

“Second, irreparable harm exists. As alleged by the Petitioners and amplified in the their affidavits, the injury is real and it is happening. The quality of life for Petitioners—for Town residents—is being severely decremented by a concrete manufacturing facility as their uninvited neighbor.

“For example, Petitioners stated that the home-schooling of their children is undermined by the noise, recreational opportunities are less safe because of hazardous road conditions resulting from trucks, and times of peace and serenity are interrupted by trucks and plant noise.

“This harm is not remote or speculative—it is present, ongoing, and will continue unabated unless and until the facility is shut down during the pendency of the Court’s review.

“Third, the inequities drastically favor Petitioners. Already, the Petitioners are subject to negative impacts from the unenclosed concrete manufacturing facility. The mere fact that the plant operated within days of approval demonstrates just how inequitable this scenario is for Petitioners. Throughout the Town’s review process, the Petitioners objected to this facility but were subjected to the arbitrary and capricious decision of the Town. Now, the Petitioners are living the nightmare they forecasted. Meanwhile, the Town has made no efforts to enforce the toothless conditions it advances as evidence of its thorough environmental review. The equities favor the Petitioners.

63. Without substantial opposition from the Respondents or Town on this injunction, the clear and convincing evidence favor the Petitioners.

WHEREFORE, it is respectfully submitted that the Court enter an Order and Judgment:

A. Vacating and annulling the decision of the Respondent Planning Board of the Town of New Haven made on August 25, 2021, granting site plan approval to Respondents Jason Simmons and Circle T for an unenclosed concrete manufacturing facility;

B. Declaring that Respondents Jason Simmons and Circle T’s unenclosed concrete manufacturing facility is prohibited under the Town Site Plan Ordinance, and the Planning Board without authority to approve the illegal use;

C. Issuing an injunction estopping Respondents Simmons and/or Circle T from operating the unenclosed concrete manufacturing facility/batch plant during the pendency of this action; and

D. Awarding such other, further and additional relief as the Court may deem just and proper together with costs and disbursement of this action.

Affirmed this 2nd day of November, 2021,

Ari M. Goldberg Barclay Damon LLP Attorneys for Petitioners

In Jason Simmons and Circle T’s defense, attorney Kevin Caraccioli would only say at this time that their position remains that the New Haven Planning Board’s Aug. 25 decision approving Simmons’ and Circle T’s site plan was the correct one.

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Decision on New Haven residents’ suit against town and Planning Board expected this week – NNY360
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