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COUNTY OF ULSTER
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Mott, J.
PROCEDURAL BACKGROUND
After the Town of Saugerties Code Enforcement Officer, Alvah L. Weeks, Jr. (CEO)
issued stop-work orders to the Petitioners relative to the operation of its C & D processing
facility on Route 212, Saugerties, New York, and the dumping of C & D debris on
Petitioners’ Goat Hill Road and Fel Qui Road properties, Petitioners filed an application for
interpretation with the Zoning Board of Appeals (ZBA), challenging the stop-work orders
Under Town of Saugerties Zoning Law (TSZL) § 245-37(A)(5) an appeal to the ZBA
stays all proceedings in furtherance of the action appealed from, unless the code
enforcement officer files a certificate of imminent peril with regard to life or property,
This proceeding ensued by order to show cause (OTSC), dated February 7, 2019 and
verified petition, seeking a stay of all enforcement of the notice of violation and stop-work
orders and all proceedings herein until the final determination of the Petitioners’ appeal to
the ZBA. In the interim, this court issued a Temporary Restraining Order, (TRO) providing
that until the hearing and determination of the petition or further court order, Joseph E.
Karolys d/b/a Joseph E. Karolys and Sons (JK) would be permitted to operate his C & D
business between the hours of 7:00 A.M. and 3:00 P.M. Thereafter, Respondents filed their
verified answer with affirmative defenses and affidavit, to which Petitioners filed a reply.
On April 18, 2019, the ZBA denied Petitioners’ appeal challenging the issuance of the
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notice of violation and stop work orders filed on February 1, 2019. It held, inter alia, that a
solid waste processing facility such as is being operated by JK is not allowed in the
zoning district where the property is located, that waste collection and processing were not
1 Petitioners challenged the ZBA determination in a separate proceeding, but did not therein make application
for, or obtain, a TRO or preliminary injunction. That proceeding was dismissed by this Court. See, Decision
and Order dated November 26, 2019. Karolys v. Weeks, et al, Ulster County Index No. 19-1667.
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part of the business operated by Rothe, the prior owner and that the pre-existing business
designation for trucking and excavation only does not support a solid waste processing
operation.2
requesting that the TRO be vacated and preliminary injunction denied. Petitioners
opposed and asserted that Respondents were selectively enforcing local laws against
The court conducted a hearing thereon over numerous days, commencing August 7,
2019 through November 4, 2019, during which evidence was adduced in support of, and in
opposition to, the relief sought. The court has evaluated the testimony, credibility,
demeanor, character, and temperament of the hearing witnesses, considered all the
exhibits admitted into evidence, and reviewed the parties’ post-hearing submissions.
NOW, after due deliberation, the court makes the following findings of essential
facts which are deemed established by the evidence and reaches the following conclusions
of law.
FINDINGS OF FACT
property at 1446 Route 212 in Saugerties (Route 212). At the Route 212 site, JK is
accepting ten or more eighteen-wheel truckloads of C & D per day. The C & D is then
reloaded onto trucks and dumped upon two other properties owned by the Petitioners
(Goat Hill Road and Fel Qui Road in the Town of Saugerties).
the net volume of C & D placed at the 90 Goat Hill Road site from 2014 to 2019 is 46,216
cubic yards, that over 27,800 cubic yards of C & D have been dumped on the Fel Qui site,
3. Per hearing Exhibit A, (Report of the New York State Department of Environmental
Conservation (DEC), Region 3) and witness David Pollock. DEC engineer, whose
testimony the court credits, representative fill material samples from Petitioners’ three
property sites were collected on May 17, 2019 by qualified individuals. Such material
4. The material arrived at the lab in good condition and JK’s fill was tested for
5. The laboratory testing demonstrated that the materials contained, inter alia, lead, zinc,
mercury, DDT, volatile organic compounds and PCBs in excess of the allowable limits
their three property sites, notwithstanding having engaged civil engineer, Robert
Lopinto, (Lopinto), who inspected the three sites and testified at the hearing. Lopinto
merely questioned the method and means of the DEC sample collection, but did not
7. JK has neither applied for, nor obtained, a permit from the Town of Saugerties to
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8. The court credits the testimony of Assistant Building Inspector Kevin Brown, (Brown),
Town of Saugerties Supervisor Fred Costello (Costello) and Joseph Mihm, P.E., (Mihm)
that JK’s C & D processing facility and dumping operations far exceed in size, scope and
duration, those of any other site in the Town of Saugerties (Town) which may contain C
& D and Brown and Costello’s testimony that JK is the only person in the Town
9. JK complained to Brown and CEO about other sites in the Town which he believed
contained C & D, but did not file a formal complaint. Notwithstanding, Brown visited the
sites JK complained of and found only a small amount of C & D present on two (2) sites,
10. The Court credits Brown’s testimony that the Building/Code Enforcement Department
investigates alleged violations based upon complaints that are received by his office, as
well as random site inspections performed by the Department and investigation of sites
that are observed by Department personnel during the administration of their duties.
11. The Town of Saugerties did not have any zoning or land use regulations prior to 1989.
12. The Rothe family owned the Route 212 property from 1969 to 2013 and conducted a
13. The use of Route 212 for such business was permitted as a pre-existing non-conforming
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14. On or about January 2019 the CEO issued a stop work order prohibiting Petitioners
15. The court credits the testimony of JK that if a preliminary injunction was not issued and
the TRO lifted he would be unable to conduct his business, and that if his business was
closed down in the interim and he ultimately prevailed on the merits of this proceeding,
16. Petitioners filed complaints with the CEO in late February-early March 2019, noting the
absence of special use permits for approximately ten other businesses that JK averred
complaints received.
17. Petitioners failed to prove, in the first instance, that they were selectively treated by
evidence was adduced at the hearing that there existed anyone or entity similarly
situated to Petitioners, as there were no C&D businesses at the time extant in the
Town of Saugerties.
18. Secondly, Petitioners failed to prove that the purported selective treatment was based
19. Indeed, Respondents’ witnesses testified that the action taken against Petitioners was
brought solely based upon the size, scope and duration of JK’s operations, not because
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20. Respondent, the Ulster County Health Department and the N.Y.S. Department of
CONCLUSIONS OF LAW
1. At the time of commencement of this Article 78 proceeding, no decision yet had been
rendered by the ZBA with respect to the validity of the stop work orders. Therefore,
the only legal issue ripe for determination at that time was whether the certificates of
imminent peril issued by the CEO were valid. A proceeding challenging the stop work
orders themselves was not available to the Petitioners since they had not exhausted
2. This proceeding has been rendered moot by the April 18, 2019 decision of the ZBA
on the issues of land use pertaining to Route 212 and the certificates of imminent
peril.3 Thus, there is no longer an automatic stay in effect pursuant to the TSZL.
Marietta Corp. v. Fairhurst, 301 AD2d 734 (3rd Dept. 2003). A preliminary injunction
should be issued cautiously and the movant “must demonstrate a clear right to relief
3 See Karolys v.Weeks, et.al, Ulster County Index No. 19-1667, Decision and Order dated November 26, 2019.
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which is plain from the undisputed facts”. Related Properties, Inc. v. Town Board of the
Town/Village of Harrison, 22 AD3d 587, 590 (2nd Dept. 2005). “A party seeking a
in its favor.” Nobu Next Door, LLC v. Fine Arts House, Inc., 4 NY3d 839, 840 (2005);
Montour v. Guilford White, 212 AD2d 89l (3rd Dept. l995) (a party seeking a
preliminary injunction must show that it will suffer irreparable harm if the relief is
4. Here, Petitioners have failed to establish irreparable injury, loss or damage which
injunction will not issue because economic loss, which is compensable by money
the absence of such relief. DiFibio v. Omnipoint Communications, Inc., 66 AD3d 635, 636-
37 (2nd Dept. 2009); Mar v. Liquid Management Partners, 62 AD3d 762 (2nd Dept. 2009).
6. Further, Petitioners have failed to show that they are likely to succeed on the merits
of their claim. The TSC § 204-3 prohibits the use of any lands other than the Town of
Saugerties Transfer Station for the dumping of, among other things, C & D or the
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have neither applied for, nor obtained a special permit as required by the TSC. Thus,
as to the TSC dumping law violations, Petitioners have failed to establish a likelihood
7. Petitioners do not benefit from a pre-existing use for a C&D business at Route 212
See, Karolys v. Weeks, et al, Ulster County Index No. 19-1667, Decision and Order
dated November 26, 2019 (where this court upheld the ZBA’s determination that
Route 212’S pre-existing business designation for trucking and excavation only, does
8. Finally, to be entitled to temporary injunctive relief, the party seeking same must
9. Here, the equities favor Respondents’ enforcement of the TSZL. Indeed, the balancing
interests involved,” Seitzman v. Hudson River Association, 126 AD2d 211, 214 (1st
Dept. 1987) including any injury to the parties and the public welfare. Stampp v.
Board of Supervisors, 141 Misc 487, 491 (Supreme Ct. Cayuga County, 1931);
10. A Fortiori, there is a public interest in local control of solid waste management. MVM
Constr., LLC v Westchester County Solid Waste Commn., 162 AD3d 1036 [2d Dept 2018]
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11. Petitioners’ defense of selective enforcement is similarly unproven. A violation of
equal protection arises where a person, compared with another similarly situated, is
12. Indeed, Petitioners have not demonstrated any malicious intent or any action with
violation. Petitioners have the burden of proving that the alleged selective
enforcement was based upon an unjustifiable standard such as race, religion or some
13. Here, Petitioners have failed to show that they were singled out with an “evil eye
supra.
14. Petitioners have not proven the Town’s local zoning or its laws on processing and
dumping C & D were enforced against them because of race, religion or upon any
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15. Petitioners adduced no proof of a coordinated effort by the Town, and/or the DEC
and/or the U.C. Health Department to selectively proceed against JK’s operations.
16. The fact that each of said three governmental agencies independently determined
that JK’s operations violate state, county or local law, respectively, belies Petitioners’
related to legitimate law enforcement interests. 303 West 42nd Street Corp. v. Klein, 46NY2d
686, 694 (l979). People v. Acme Markets, Inc., 37 NY2d 326 (1975) is inapposite as the
equal-protection violation there was based upon an interest group’s stated intent to
target a certain class of stores for enforcement. It noted that the burden of proving
discriminatory enforcement rests upon the complainant and that same is not lightly
met. Id., at 331. Thus, it does not stand for the proposition that any
18. Accordingly, the actions of the Town in “enforcing the Zoning Ordinance” did not
property rights.
19. The TRO previously issued by this court, in all respects, is hereby vacated, and there