At the meeting which took place on Monday, February 10th at Hamburg Town Hall, Jim Shaw spoke about the settlement in regards to AL Asphalt. Due to the on-going nature of the proceedings, he could not give definitive answers, but reading between the lines, did make some valid points.
- Hamburg Town Supervisor Jim Shaw stated that in order to settle with AL Asphalt, there would have to be a unanimous decision from the board with his feedback included. He further stated that in no way is he going to settle in such a way to allow the facility to exist on Camp Road, so pending a court decision, there is no chance that the town allows the facility to operate at the proposed site via settlement.
- Jim Shaw also stated that a notice of appeal has been filed, but the appeal itself has not been filed which is a long and arduous process. The asphalt plant has six months from the time of the notice of appeal to file the appeal, giving them until Summer to do so. This does not indicate that an appeal will be heard or that they will succeed in their appeal, but rather that they do have an opportunity to file an appeal if they chose to spend the money and time doing so.
- A citizen prompted Jim Shaw to ask what could possibly be gained by on-going settlement negotiations with the owner of the site. Jim Shaw alluded to the fact that the current zoning is M-3 still and that the town envisions that plot being a mixed use zoning as a gateway between the town and village. While he can’t legally confirm that this is a negotiable item, his intent was somewhat clear that the town has interest in that change.
- Jim Shaw also stated that a zoning consultant is in the process of being contracted to examine and reformat the town’s comprehensive plan. This will lead to a review of the zoning districts within Hamburg, but will take twelve to eighteen months and will require public forums for residents to provide input. While the zoning cannot be changed to prevent the current application for the asphalt facility, the zoning could be changed for those plots to allow for future mixed used development.
- Jim Shaw also noted that the asphalt facility has the choice of proceeding with the environmental study suggested in the SEQR decision, or proceeding to appeal the Article 78 dismissal. Removed from that, the facility has no recourse to begin operating at this time.
We find that it unlikely that the applicant will proceed with the environmental study as they are likely aware that they will not pass the pollutant limits suggested in the town code, so it is more likely that they appeal the Article 78 decision in an attempt to avoid the environmental study altogether. We also find that it is unlikely, but not impossible that a court will rule in favor of the asphalt applicant during an appeal due to the fact that the Panepinto decision largely centered around the fact that the filing was dismissed due to it being unripe for judicial review, not due to an opinion.
The Article 78 was unripe for judicial review due to the fact that an Article 78 hearing is called to challenge a final decision made by a governing body. In this case, there has been no final decision. The asphalt plant could proceed with an environmental study and in theory could still be granted permission to operate. Due to this, the appropriate time to file an Article 78 filing would be after they were denied permission to operate once the SEQR process was fully concluded, after an environmental study. In theory, one avenue that the applicant has is to simply finalize the environmental study and then file the Article 78 again.
This is also unlikely to occur due to the fact that the environmental study will be moderately costly, and all of those costs fall upon the asphalt applicant at this time due to the current SEQR classification. Further, if the applicant felt that they would succeed in proceeding with the operation of the plant after an environmental study was conducted, it is likely that they would do that instead of challenging the requirement of an environmental study in court.
Due to all of this, there are a few things that citizens should understand and consider:
- While this does not necessary dictate that the asphalt plant will never exist, it certainly looks grim for the applicant. We don’t recommend considering this a victory yet, but things are looking better than they have previously.
- One choice that the asphalt applicant has is to propose operating the facility in a different region of the town, or outside of the town. While we cannot have an influence outside of the town necessarily, we can certainly have an influence within the town. We would hate to see this project moved from the Camp Rd location only to have an impact on the citizens of Blasdell or similar.
- If this property is sold or foreclosed, a new owner will still retain the existing zoning and could propose a similarly damaging project on the current land that exists.
Due to this, we recommend writing Jim Shaw via email or letter to suggest that Hamburg explore re-zoning the Camp Road site to a mixed use zoning, preventing new establishment of industrial uses. Further, we recommend that Hamburg as a whole consider a restriction for all other industrial use zones that explicitly prevents a more extensive or aggressive use of the land for industrial purposes than already exist. We do not believe that we want to prevent industry from existing in Hamburg in general, but we do believe that there are plenty of other suitable sites with less or no impact on neighbors and residences in alternative locations. We also feel that Hamburg as a whole will not improve with more extensive industrial uses that have significant impacts on the environment.
Last, we think that it might be intelligent for the town to explore the direct purchase of the old Riefler site and adjacent properties. We do not think a settlement should pay the existing owner a market-or-higher rate to prevent the town from being extorted into a settlement that is costly to taxpayers. Rather, the current owner is very far behind on property taxes, and the property may be repossessed in the near future due to this. In that case, it would make large sense for the town to apply for brownfield credits which would cover most or all of the costs of remediating that land into safe, usable land that is no longer a “toxic dump” as Jim Shaw has termed it. Then, the municipality could sell that land for a profit to developers who could use those parcels for much more appropriate mixed use projects. This is in the range of possibilities and is not without precedent. If you agree, feel free to include language surrounding this point if you choose to reach out to Jim Shaw as well.
If you wish to email Jim Shaw, he can be reached at firstname.lastname@example.org directly. Thank you for your continued support.