Special Town of Hamburg Meeting & Lawsuit Update

We are notifying all parties and citizens that the Town of Hamburg is holding a special meeting in regard to AL Asphalt. This meeting is to be held on November 4th, 2019 at 7:00pm at the Taylor Road Family Recreation Facility located at 6765 Taylor Road. Please note – this is not Town Hall, which has hosted the other meetings. We are not under the opinion that this meeting will be open for public comment, but it is important that members of the public appear to show their resistance to the construction of the facility.

Further, as many already know, the AL Asphalt company has brought an Article 78 suit against the Town of Hamburg. This case will be heard at the State Supreme Court this week. The court is open to the public on October 31st at 9:30am on the 3rd floor of NY Supreme Court (92 Franklin St).

This Article 78 filing claims that the Town has acted improperly in classifying the SEQR action as an unclassified action instead of an action that will have “no significant environmental impact”. It could be argued that this is a misuse of the Article 78 code as that Article 78 code has never been applied to a SEQR ruling before, but more importantly, that the Article 78 code explicitly states that local laws are allowed to be factored in making decisions even when escalated to be heard at the State Supreme Court.

If the Article 78 hearing turns out in favor of the town, the town can proceed with factoring environmental studies and other information in their decision making process. If it turns out in favor of the asphalt plant applicant, it can make it much more difficult for the town to apply knowledge gained from environmental studies to their decision making process legally.

The important things to know are that Article 78 cases are usually heard in cases where a final decision has been made to approve, deny, issue or rescind some type of permission, like in the case of a liquor license being revoked due to serving minors.

Further, it’s important to know that the town is fully within their rights classifying the action as an unclassified SEQR action, and that the next step in that could be the town making a positive SEQR declaration which would then force any costs of any environmental impact studies on to the asphalt plant applicant and cause significant review of the plans. At that time, any discovery of pollutants, noise, odor or otherwise entering the bordering M-2 district at only 190 feet away would continue to be examined and measured, likely creating a huge hurdle for the asphalt plant applicant to overcome.

It is also worth noting that we are unaware of any SEQR decision which was issued as a positive declaration (basically, a potential environmental impact could occur) which was overturned in the courts to a negative declaration and allowed to proceed. On the opposite side of that, many negative declarations have been challenged by citizens and converted to a positive declaration, so if somehow this all goes awry, the citizens may still have an option to appeal this entire process through the courts.

Due to this, we hope that the NY State Supreme Court rules appropriately on the Article 78 hearing in that it is misapplied to these distinct circumstances and cannot be overturned due to no final decision made. Next, we hope that the town does the right thing and issues a positive SEQR declaration, pushing all environmental study costs on to the applicant and hopefully freeing the citizens of any unnecessary burden, despite the applicant’s past unwillingness to pay taxes.

We hope to see you in attendance at the upcoming court date and public meeting!

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