ROMULUS — It is not yet clear how the company interested in putting a trash-burning incinerator in this Seneca County town will proceed after scoring a small judicial victory.
In a decision dated May 15, state Supreme Court Judge Daniel Doyle annulled the local law Romulus adopted two years ago that amended the town zoning code to prohibit a trash-burning incinerator from being built.
Annulment of the local law was the only one of 11 objections raised by Circular EnerG LLC and Seneca Depot LLC Rochester in an Article 78 proceeding that Doyle granted. Doyle dismissed nine other objections raised in the lawsuit, and he denied a 10th objection, or “cause of action.”
In granting the single cause of action, Doyle annulled Local Law 3 of 2018 and sent the legislation back to the Town Board to consider redoing the process so it complies with General Municipal Law.
“The town is gratified that the court found in our favor on a majority of the claims in this litigation, but disappointed that the court chose to overturn the board’s action based upon a procedural irregularity,” town Supervisor David Hayes said. “Fortunately, the state of New York has changed the landscape for large-scale waste-to-energy facilities, such as the one proposed by the petitioner in this case, by adopting the Finger Lakes Community Preservation Act.”
Hayes said the board will review the decision and its zoning code before taking any further action.
“We are committed to making the town of Romulus a place that is good for business, particularly the redevelopment of the former depot,” Hayes said.
Alan Knauf, the attorney representing Circular EnerG, did not respond to an email seeking comment.
Circular EnerG was planning to seek approval to build a electricity-generating incinerator on a 48-acre parcel of land owned by Seneca Depot LLC at the former Seneca Army Depot. Circular EnerG and Seneca Depot filed the Article 78 against the Town Board over its adoption of three resolutions on April 18, 2018. They were:
• Designating the Town Board as lead agency under the State Environmental Quality Review for purposes of a proposed zoning amendment.
• Adoption of a declaration that the zoning amendments would not have a negative impact on the environment.
• Adopt the zoning amendments as Local Law 3.
The town moved to dismiss the lawsuit, arguing the two companies did not have standing to file the lawsuit because the state Legislature and governor passed the Finger Lakes Community Preservation Act on May 24, 2019. That bill prohibits facilities such as a trash-burning trash incinerator from being built within the Finger Lakes watersheds.
Doyle ruled that Circular and Seneca Depot had standing to pursue the lawsuit and agreed that the Town Board sent the proposed zoning amendments to the Seneca County Planning Board for review on March 1, 2018. However, he said the board further amended portions of the ordinance changes one week after that, and those amendments were not sent to county planners for further review.
Doyle described the additionally proposed amendments as several new definitions, and being of a substantial nature. He said a new referral to the county Planning Board was required. Because that did not happen, he nullified the local law.