ROMULUS — Despite a new state law prohibiting a waste-to-energy incinerator in the town, Circular enerG LLC of Rochester is still pursuing a 2018 lawsuit against the Romulus Town Board.

The company proposed building an incinerator on a 48-acre parcel of the former Seneca Army Depot. It would take in trash from all over the state by truck, and possibly by rail, to burn and generate electricity.

However, there was strong opposition from local governments and environmental groups. State Sen. Pam Helming, R-54 of Canandaigua, spearheaded an effort to draft the Finger Lakes Community Protection Act in the state Senate; a Democratic senator from Syracuse was a co-sponsor. The bill also was introduced in the Assembly by Democrat Michael Cusick of Long Island.

It passed the state legislature in March and was signed into law by Gov. Andrew Cuomo on May 24.

While uncertain of their next move regarding the incinerator, Circular officials said they plan to continue the lawsuit against the town over its effort to incorporate anti-incinerator provisions into the town zoning code.

Town Attorney Patrick Morrell said Wednesday that the town filed its response to the lawsuit May 24. Circular attorney Alan Knauf said the company will file its response by June 24.

Arguments have not been scheduled but could occur this summer in State Supreme Court.

Circular filed two Article 78 lawsuits last fall. One was against the Town Board and the other was against the town Zoning Board of Appeals. Oral arguments were Sept. 28 in State Supreme Court for Seneca County.

State Supreme Court Justice Daniel Doyle issued a “split decision” ruling in April. He agreed with the town in dismissing one of the Circular lawsuits on the grounds that the court lacked subject matter jurisdiction. He also upheld nine of 11 causes of action in Circular’s lawsuit. Doyle also ruled that Seneca Lake Guardian could not be an intervenor in the lawsuits. He allowed the organization to participate as a “friend of the court” in both lawsuits.

Circular, along with Seneca Depot LLC, owner of the 48-acre parcel, filed a lawsuit against the town, the ZBA, and interested parties Alan Kiehle, Earl Martin and unspecified “John Does.”

It cited 11 causes of action regarding the ZBA’s adoption of an April 26, 2018 resolution vacating the zoning code interpretations issued by town Code Enforcement Officer Adam Schrader in 2017. Schrader said a waste-to-energy facility would be an allowed use in the zoning district where the plant would be built if a special-use permit was approved by the town Planning Board.

The suit claims the zoning ordinances cited by Schrader — and later vacated — have been substantially amended by the town to render Schrader’s interpretation without effect. Circular said that at the time of the amendment to the zoning code prohibiting incinerators, the company did not have an application pending approval from the town.

The lawsuit against the Town Board continued, listing 11 causes of action to support Circular’s claim that the board’s actions should be nullified. The basis for the Circular lawsuit came from the resolution adopted by the board April 18, 2018. One of those resolutions adopted zoning code amendments prohibiting an incinerator as Local Law 3 of 2018.

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