Digging Into DEC’s Proposed Part 360 Regulations: Part II – Part 360 General Requirements

This is the second post in our series looking at the New York State Department of Environmental Conservation’s proposed revision and reorganization of Part 360. Today’s post will look at the changes to Part 360 itself, which will now detail the “General Requirements” applicable to all facilities, apart from any facility-or-waste-specific regulations. This is also the largest section of the proposed regulations, coming in at 113 pages. For the sake of brevity, this post will not delve into each of those definitions, and instead summarize the various subsections, while highlighting some of the more notable provisions.

Nearly the entire first half of the proposed Part 360 gives background information to frame the provisions that follow. This includes over 30 pages of definitions, providing explanations of 308 separate terms in detail.  It also includes provisions detailing what other documents and regulations are incorporation by reference, provisions outlining the transition process from the previous to proposed regulations, and a severability clause for Parts 360-366 and 369.

Among the remaining 70 pages of the proposed regulations, several sections stand out as particularly noteworthy:

-Section 360.7 provides the authority for the DEC to inspect covered entities. This provision is broadly worded, stating that “Department personnel may enter and inspect any facility and any property, premises, books, papers, documents, or records of the facility, at all reasonable times, locations, whether announced or unannounced, for the purpose of ascertaining compliance or noncompliance with an exemption, registration, permit, administrative or judicial order or decree, the ECL, and this Title.”  It also details the implications of refusing inspectors access.

-Sections 360.11 and 360.12 both relate to recycling. Section 360.11 details the contents of the Comprehensive Recycling Analyses, the annual submissions by municipalities outlining how they will develop and implement long-term recycling plans. Meanwhile, Section 360.12 covers the new beneficial use definitions. Material used in the manners described ceases to be defined as “solid waste.” Some examples of pre-determined uses include using waste tires as retaining walls or playground components or bread and grain products as animal feed (providing the packaging is removed). The full provision details significantly more uses, however, and further allows for case-by-case beneficial use determinations.  

-Section 360.15 provides for general requirements for what entities may register, while Section 360.16 provides for permit applications and related provisions.  This is supplemented by Section 360.10, which details how to apply for variances and the limitations on the types of variances that may be granted.

-Section 360.18 provides for DEC to issue “research, development and demonstration” (RD&D) registrations or permits for innovative or experimental processes or technology.

-Section 360.19 details operating requirements, including dust and odor control, noise levels, water protection, procedures to prevent the acceptance of unauthorized waste, and the proper way to cover and/or containerize waste for transport.

-Section 360.22 details the revised regulations for financial assurance, the guarantee that a facility operator has sufficient funds to cover the costs associated with closing a facility. The provision details methods including trust funds, letters of credit, surety bonds, insurance policies, etc., including sample forms in some cases. These provisions may be the basis of a separate post in the future, after several more section-by-section posts have been published.

Finally, other provisions in this section include the criteria for a facility to be exempt from regulation, special requirements for historic fill, annual reporting requirements, environmental monitoring, and the procedures for closing a facility that handles solid waste.

A PDF of the full proposed Part 360-General Requirements regulations can be found here: http://www.dec.ny.gov/docs/materials_minerals_pdf/pt360swmfgenreq.pdf

Digging Into DEC’s Proposed Part 360 Regulations: Part I – Overview

As discussed in our most recent newsletter, the New York State Department of Environmental Conservation (“DEC”) has proposed a comprehensive revision and reorganization of Part 360, which governs the processing, transportation, storage, and disposal of solid waste. The proposed regulations would replace the existing Part 360 with series of new Parts and sub-parts organized by type the of facility at issue, with subparts reflecting the type of waste being handled. For example, Part 361 covers all types of Material recovery facilities, with Subpart 3 addressing composting and organic processing facilities and Subpart 6 covering waste tire facilities). 

Based on this new organization, a facility may be subject to regulations in multiple parts simultaneously. Imagine a waste transfer station that primarily handles construction and demolition debris (“C&D”). This facility would be subject to Part 360 General Requirements, Part 362-3 Transfer Facilities, and Part 361-5 C&D Facilities.  Below is a summary of some key provisions that would apply to this hypothetical facility, providing a good illustration of how the new structure combines regulations of general application with related, facility-specific regulations that complement, rather than contradict, each other:

1. All facilities must confine waste to an area that can be effectively maintained, operated, and controlled, with blowing litter confined to waste holding and operating areas by fencing or other suitable means. Any litter outside the waste holding area must be controlled.

2. All facilities must ensure dust is effectively controlled so as not to constitute a nuisance, and undertake any and all measures required by the department to maintain and control dust at and emanating from the facility.

3. To ensure only authorized waste is delivered to the facility, all facilities must inspect incoming loads of waste. Any unauthorized waste must be segregated, secured, and contained to prevent leakage, then removed by an authorized carrier within 7 days. Transfer facilities must have a program to detect and prevent receipt of hazardous waste, including random inspections of incoming loads and inspection of suspicious loads.

4. A facility may not accept waste unless the vehicle transporting it is adequately covered or the waste containerized. Vehicles leaving the facility must be similarly containerized or have, at a minimum, a mesh or fabric covering.

5. All C&D receiving, processing and sorting must be in an enclosed building unless excepted.  Certain types of C&D must also be stored in enclosed spaces, and for no more than 30 days.

6. All C&D waste material delivered to and leaving a C&D facility must be weighed or otherwise measured and recorded in cubic yards and tons. Transfer stations are also required to weigh and record all waste delivered to and leaving the facility in tons.

7. All tipping, sorting, processing, compaction, storage, loading, and related activities at transfer facilities must be conducted in an enclosed building. Non-putrescible waste may be stored outdoors if stored in closed containers or covered trailers.

8. DEC personnel may enter and inspect any facility, property, premises, documents, etc. at all reasons times, locations, whether announced or unannounced, to ensure regulatory compliance.

This should provide some idea of the types of regulations facilities will be subject to, and how the regulations in different parts come together to form a comprehensive regulatory scheme. For more on the proposed Part 360 regulations, check back regularly for our forthcoming series of posts addressing each section, and occasionally sub-section, of the proposed regulations in turn.

Second Circuit Remands Qualified Immunity Question For Former Zoning Enforcement Officer

Plaintiffs Vito Savino and Savino, Inc. alleged violations of Equal Protection by Defendants Town of Southeast and former zoning code enforcement officer, Charles Tessmer. Defendants appealed from an order of the District Court denying their motion for summary judgment and denying Tessmer qualified immunity. Plaintiff asserted Defendants discriminatorily applied facially neutral zoning laws on the basis of Savino's Italian national origin, and that Defendants selectively enforced the zoning laws against him.

On appeal, the Second Circuit noted that entitlement to qualified immunity at the summary judgment stage depends on whether the facts, viewed in the light most favorable to the plaintiff, showed that the officer's conduct violated a constitutional right, and, if so, that the right was clearly established at the time. The District Court found that it is unreasonable to believe applying or enforcing a law based on someone's national origin does not violate the Fourteenth Amendment, or that reasonable officials could disagree on this. Even so, the remaining question of material fact — Defendant’s motivations and whether he actually made a comment about “Guineas”— go both to whether he is entitled to qualified immunity and whether Savino's equal protection rights were in fact violated. Accordingly, the court held that summary judgment was properly denied and remanded the case for further proceedings.

The case was Savino v Town of Southeast, 572 Fed. Appx. 15 (2nd Cir. 2014).

Court Holds Failure To Obtain Special Permit Did Not Preclude Establishment Of A Vested Right To Mine On Property

Petitioner Cobleskill Stone Product’s ("Petitioner") quarry in the Town of Schoharie ("Town") had been in operation since the 1890s. Under the Town’s 1975 zoning ordinance, “commercial excavation or mining” was a permitted use requiring a special permit from the Town. In 2000, Petitioner purchased real property to the south of the areas it actively mined, and commenced a hybrid CPLR Article 78 / declaratory judgment action for a judgment declaring Petitioner had a vested right to quarry as a preexisting nonconforming use under the ordinance and any subsequently enacted prohibitory zoning amendment. The Supreme Court granted petitioner's motion for partial summary judgment on this cause of action.

On appeal, the Appellate Division reasoned that even though a special permit was required for mining operations between 1975 and 2005, Petitioner's failure to obtain one did not per se preclude it from establishing a vested right to mine on its property, notwithstanding current or future prohibitive zoning ordinances. As such, the Court found the trial court erred in granting partial summary judgment to Respondents dismissing the vested right cause of action based on Petitioner's failure to obtain a special permit under the 1975 ordinance. Finally, the court found the Supreme Court's judgment annulling Local Law No. 2 did not render the appeal moot; if a new zoning ordinance with the same prohibition against mining were to be enacted, a declaration that petitioner had a vested right as against the earlier law would affect the rights of the parties. Accordingly, the order of the Supreme Court was dismissed.

The case was Cobleskill Stone Products, Inc. v. Town of Schoharie, 126 A.D.3d 1094 (App. Div. 2015). The opinion can be found here: http://decisions.courts.state.ny.us/ad3/decisions/2015/518997.pdf

Court Holds Town Board’s Decision to Allow A Depth Extension Was Not Arbitrary And Capricious

Petitioner brought a proceeding under CPLR article 78 to challenge a determination of the Zoning Board of Appeals of the Town of Huntington (“ZBA”) granting Respondent’s application for a depth variance as part of their application to construct a retail store. The Supreme Court, Suffolk County denied the petition and dismissed the proceeding. Petitioner now appeals

On appeal, the Appellate Division noted that the ZBA had granted several area variances so as to allow Respondents to build a proposed retail store. In doing so, the ZBA used the balancing test provided by Town Law § 267-b(3)(b). Under that test, the ZBA found the requested variances were not substantial and would not undesirably change the neighborhood’s character, be a detriment to nearby properties, or adversely effect the physical or environmental conditions in the neighborhood. The Court also found that the ZBA's determination to grant a depth extension pursuant to the Town Code § 198-110(C)(1) had a rational basis, including that the ZBA found similar depth extensions had been granted to neighboring commercial properties, and that the depth extension was necessary for the reasonable use of the subject parcel. Accordingly, the Court upheld that decision of the Town Board, and affirmed the holding of the Supreme Court of Suffolk County.

The case was Harbor Park Realty, LLC v. Modelewski, 984 N.Y.S.2d 601 (App. Div. 2014).

Court Holds City Did Not Manifest Intent to Dedicate Parcels as Public Parkland

This case centers on a proposed expansion project at New York University (NYU) that would involved three acres of public parkland. The trial court first held that the City respondents had alienated public parkland without approval by the New York State Legislature, in violation of the Public Trust Doctrine, and enjoined respondent NYU from beginning construction in connection with the expansion project. The trial court then stated that even though there was no formal dedication of land for public use, an implied dedication could exist if the municipality's acts and declarations manifested a present, fixed, and unequivocal intent to dedicate. As such, the party asserting that the land has been dedicated for public use bears the burden in showing a parcel has become a park by implication, and may do so by providing evidence of the owner's acts, declarations, and the circumstances surrounding the use of the land.

On appeal, the Appellate Division held that Petitioners failed to meet their burden. While the City has allowed for the continuous use of parts of the parcels for park-like purposes over an extended period of time, this use was not exclusive; some of the parcels have also been used as pedestrian thoroughfares. Moreover, management of the land in question by the Department of Parks and Recreation was well understood as being provisional, pursuant to revocable permits or licenses.

The New York Court of Appeals would later uphold the Appellate Division’s ruling in Glick v. Harvey, 25 N.Y.3d 1175 (2015), adding that while “a portion of the public may have believed that these parcels are permanent parkland does not warrant a contrary result.”

Court Refuses To Apply Relation Back Doctrine To Statute of Limitations Expired Following Failure To Join Necessary Parties To Zoning Challenge

After Respondent Town of Liberty enacted Local Law No. 2 (2011), Petitioners commenced a proceeding to annul the law, naming the Town, Gary Zalkin (operating as Liberty Scrap Metal), and Ben Weitsman and Son, Inc. as respondents (henceforth “Original Respondents”). Original Respondents moved to dismiss on the grounds that Petitioners failed to join the owners of the parcels of real property affected by the zoning law as necessary parties. The trial court agreed and ordered Petitioners file and serve an amended petition adding such property owners as respondents. While filing this amended petition, the statute of limitations expired and the trial court dismissed the petition against the newly-added respondents. As a result, the Court also dismissed the remainder of the petition against the Original Respondents due to Petitioners' failure to timely join necessary parties.

To qualify under the relation back doctrine, Petitioners must show that: 1) the claims arose out of the same occurrence; 2) the later-added respondents were united in interest with the original respondents; and 3) the later-added respondents knew or should have known that, but for a mistake by Petitioners as to the identity of the proper parties, the proceeding would have been brought against them as well. Here, Original Respondents consist of the municipality that enacted the challenged zoning law and the entities that purportedly sought the zoning changes, while the later-added respondents are owners of the real property affected by the zoning changes, and thus there was no unity of interest between the parties. The third prong is similarly unmet, as Petitioners were fully aware these property owners existed, but “failed to appreciate that they were legally required to be named in proceedings of this type.” As such, Petitioners' error does not fall within the doctrine. The court thus affirmed the dismissal.

The case was Ayuda Re Funding, LLC v Town of Liberty, 121 A.D.3d 1474 (App. Div. 2014). The decision can be found here: http://decisions.courts.state.ny.us/ad3/Decisions/2014/517959.pdf

Court Finds Rezoning Not Impermissible Spot Zoning When Consistent With The City’s 2020 Vision Plan

Plaintiffs brought a declaratory judgment action against the City and other Defendants challenging the rezoning of property in the City of Oswego (City) to accommodate the construction of a hotel. The Supreme Court, Oswego County granted summary judgment to the Defendants, and Plaintiffs appeal.

The Appellate Division began its analysis by noting zoning amendments enjoy a “strong presumption of validity,” ensuring that such amendments will not be disturbed unless they can be found to be in clear conflict with a city’s comprehensive zoning plan. Here, Defendants presented evidence that the rezoning application underwent a thorough review, including review by the City Planning Board, County Planning Department, and Common Council's Planning and Development Committee before the Common Council acted on the petition. In addition, the zoning amendment at issue furthered the City’s legitimate interest in carrying out the planned development of the city.

Plaintiffs also claim the Common Council’s decision to reverse its approval of the zoning petition was arbitrary and capricious. As the Common Council substantially adhered to its procedural requirements, and is a legislative and not, as Plaintiffs allege, an administrative body, the court dismissed this claim with minimal analysis. The court thus upheld the zoning amendment and granted judgment in favor of the defendants.

The case was Restuccio v. City of Oswego, 114 A.D.3d 1191 (App. Div. 2014).

Court Upholds Denial of Special Use Permit Extension For Wind Turbine Farm

Petitioner was issued a special use permit on July 11, 2011 to construct a wind farm. Respondent Town Planning Board notified Petitioner that its permit would “expire if construction has not commenced within a year of [respondent's] approval.” On June 11, 2012, respondent extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens' group, Concerned Citizens of Cattaraugus County (CCCC), in opposition to the project. In a letter dated August 3, 2012, Petitioner advised the Town that it was “considering use of alternate turbine models” for the 29-turbine wind farm. Petitioner then requested a second extension of the special use permit, which was denied by the Planning Board in October of 2012. Petitioner then filed the suit under CPLR Article 78. The Supreme Court dismissed, and Petitioner appealed.

On appeal, the Appellate Division upheld the Supreme Court’s dismissal. Specifically, the court held that there was a material change in circumstances since the special use permit had been issued because of Petitioner’s contemplated change from the use of Nordex N1000 turbines. As it is undisputed that when Petitioner requested its second extension of the permit Petitioner had proposed using alternate turbine models, the court found that the Planning Board's refusal to extend the special use permit for a second time was not arbitrary or capricious.

The case was Allegany Wind LLC v Planning Board of Allegany, 115 A.D.3d 1268 (App. Div. 2014), and it can be found here: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/03-21-14/PDF/1324.pdf

Court of Appeals Holds Off-Street Parking Variances Requests Should Be Viewed As Area Variance Requests Where Property Is Intended For A Permitted Purpose

Manhasset Pizza LLC and Fradler Realty Corporation (“Applicants”) applied for the Town of North Hempstead Board of Zoning and Appeals to approve a 45–seat, full-service restaurant in a storefront in Manhasset. The Board granted the conditional use permit, subject to certain conditions, and requested variances. Deeming the application a request for area variances, the Board found the benefit to the applicants of granting variances outweighed the detriment imposed on the community and approved the variances from the Town Code’s parking and loading/unloading regulations. In response, a the owner of a neighboring building, Colin Realty Co., LLC, brought a hybrid Article 78 / declaratory judgment action challenging ZBA's granting of variances, and alleging that proposed restaurant required a use variance rather than an area variance.

Town Law § 267(1) defines both area and use variances: “Use variance shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations,” while “area variance shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations.”

After the Supreme Court, Nassau County dismissed the petition and the Appellate Division affirmed the dismissal, Petitioners appealed to the Court of Appeals. On appeal, the Court of Appeals held requests for off-street parking variances should be evaluated by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district, expressly overruling Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160. Accordingly, the court held that the ZBA properly considered the application for off-street parking variance as a request for an area variance.

The case was Colin Realty Co, LLC v Town of North Hempstead, 24 N.Y.3d 188 (2014).

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