Waste Mgt. of NY, LLC v Town of Albion

[*1] Waste Mgt. of NY, LLC v Town of Albion 2005 NY Slip Op 52343(U) [18 Misc 3d 1133(A)] Decided on May 6, 2005 Supreme Court, Orleans County Hudson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 6, 2005
Supreme Court, Orleans County

Waste Management of New York, LLC, and CRAIG A. SLATER, as TRUSTEE OF ALBION DISPOSAL, INC., I & J DISPOSAL OF WESTERN NEW YORK, INC., J & I DISPOSAL, INC., 11372 MAIN STREET, INC. and ORLEANS SANITARY LANDFILL, INC., Petitioners,

against

The Town of Albion, and the TOWN BOARD OF THE TOWN OF ALBION, Respondents.



03-28877



BOND, SCHOENECK & KING, PLLC

(Kevin M. Bernstein, Esq., Joseph Zagraniczny, Esq., and

Kathleen M. Bennett, Esq., of Counsel)

Attorneys for Petitioner WASTE MANAGEMENT OF NEW YORK, LLC

(Hereafter, "WASTE MANAGEMENT")

CRAIG A. SLATER, as Trustee of ALBION DISPOSAL, INC.,

I & J DISPOSAL OF WESTERN NEW YORK, INC., J & I

DISPOSAL, INC., 11372 MAIN STREET, INC., and ORLEANS

SANITARY LANDFILL, INC.

HODGSON, RUSS, LLP

(Daniel A. Spitzer, Esq., and Jill L. Yonkers, Esq., of Counsel)

Attorneys for Respondent

THE TOWN OF ALBION (Hereafter, "TOWN")

and TOWN BOARD OF THE TOWN OF ALBION

(Hereafter, "TOWN BOARD")

Michael E. Hudson, J.

This is a proceeding under CPLR Article 78 for an order and judgment nullifying the determination of the Town Board on May 19, 2003, to deny Waste Management's application for a landfill license, special use permit and filling and grading permit for the proposed operation of a large landfill. Petitioners also seek to compel Respondents to issue the requested license and permits. The filings herein have been extensive, and it was not until December 1, 2004, that the matter became fully submitted for decision. [*2]Upon consideration the Court will now deny Petitioners' requests for relief, and instead grant judgment dismissing this matter.

The focus of the proceeding is a 204-acre parcel of land at the eastern end of the Town of Albion, adjoining the Town of Murray. The real property is situate between Densmore Road to the west, and Transit Road to the east, with the Erie Canal and closed McKenna Landfill to the north, and a Conrail rail line to the south. It is owned by the Orleans Sanitary Landfill, Inc. Bankruptcy Estate and Irene M. Smith. The bankruptcy estate leased the site to Waste Management for a 48-year term under a lease agreement dated October 26, 1992, and amended, with Ms. Smith's participation, on August 19, 1993.

For decades portions of the parcel and adjoining properties have been used for solid waste disposal, although not on the scale contemplated by Petitioners. During the 1950's the Village of Albion used one acre in the northwest portion of the project site as a landfill. From 1968 to 1983 the McKenna Landfill operated on a separate

18-acre parcel along the Erie Canal, immediately to the north of the proposed facility. From 1983 to 1991 the Orleans Sanitary Landfill was located on 40 acres in the south-central portion of the site. Waste Management has proposed to operate its facility, to be known as The Towpath Environmental and Recycling Center ("Towpath Facility") to the south of the McKenna property and east of Orleans Sanitary Landfill. The proposal called for the use of approximately 73 to 77 acres [FN1] for the actual burial of waste, of which 4 acres would overlay the eastern slope of the present Orleans Sanitary Landfill.

Although the recent history of the site is largely derived from secondary materials, the following appears undisputed. As previously noted, Orleans Sanitary Landfill operated a landfill from 1983 through 1991. In the fall of 1990 that entity entered into an agreement with the New York State Department of Environmental Conservation ("DEC") and Town to close the facility. That agreement was part of a consent order that apparently followed some period of DEC investigation and monitoring of Orleans Sanitary Landfill and affiliated companies, together with their sole or controlling shareholder, John N. Smith. Thereafter, on August 14, 1991, Orleans Sanitary Landfill and related corporations filed for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court, Western District of New York ("Bankruptcy Court"). In December of 1991 the Bankruptcy Court approved the appointment of Craig A. Slater, Esq., as the Chapter 11 Bankruptcy Trustee of the Debtors. The Trustee subsequently worked to complete the closing of the existing

40-acre landfill under the earlier consent agreement with the DEC, and also to dispose of other parcels within the 204-acre site, which purportedly represented the only significant asset of the bankruptcy estate.

It appears that at the time of the corporate bankruptcy the site actually consisted of a cluster of adjoining properties, only some of which had been titled or leased to Orleans Sanitary Landfill and its affiliated corporations. Other parcels were owned by [*3]Mr. Smith and/or his wife, Irene M. Smith, in individual capacities. On or about October 29, 1991, the Smiths leased three of those parcels, totaling 106.7 acres, to Sevenson Waste Services, Inc. ("Sevenson"). In November 1991 Mr. Slater commenced an adversarial proceeding in the Bankruptcy Court to challenge that transfer. As part of an order dated March 18, 1993 the Bankruptcy Court declared the Sevenson lease void as against the Trustee, and confirmed his authority to control and develop the entire site. Following further negotiations Sevenson assigned its lease rights back to Mr. Slater. Mr. Smith likewise conveyed his interest in the parcels titled in his name. Ms. Smith did not transfer the ownership interest that she held in some of those properties, but agreed that the Trustee would serve as her agent in the leasing of her interests. Those agreements in settlement of the adversarial proceeding were subsequently authorized by the Bankruptcy Court on September 23, 1993.

While the adversarial proceeding was pending Mr. Slater entered into a lease agreement with Waste Management, dated October 26, 1992, for the entire 204 acres. Thereafter, and following the March 1993 Bankruptcy Court determination and subsequent settlement negotiations the Trustee and Ms. Smith entered into an August 1993 amendment and restatement of the October 1992 lease with Waste Management, that also extended to an assignment of the rights the Trustee had gained to the Sevenson lease in his settlement negotiations with that entity. Under the lease Waste Management was afforded the right to develop and operate a landfill over a term of 48 years, and was also required to pursue the various approvals required to conduct that business.[FN2] The Trustee anticipated that the lease revenue so derived would be used to pay the creditors of the bankruptcy estate, as well as Ms. Smith's interests as a lessor of sections of the landfill property.

As previously noted in October 1990 Orleans Sanitary Landfill entered into a consent order with the DEC that encompassed a plan for closing the 40-acre site. Closure had not been completed as of the August 1991 bankruptcy, and Mr. Slater then undertook responsibility for completing that process under a modified plan negotiated with the DEC, in part at the request of the Town. The Trustee retained Waste Management as the contractor for that purpose, which included regrading, capping, and the installation of monitoring equipment. At least some of the costs for closing the landfill were derived from allowing Waste Management to dispose of 100,000 to 115,000 tons of additional municipal solid waste during 1992 and 1993, as part of the regrading process. Inconsistent representations attributed to the Trustee have caused a dispute as to whether those disposal fees fully covered the costs of closing and monitoring the old landfill. However, that question need not be resolved as part of this proceeding.

The provisions within the 1992/1993 lease that obligated Waste Management to pursue governmental approval for an expansion of landfill operations were not simply a [*4]matter of abstraction. During 1989 and 1990 Orleans Sanitary Landfill had itself commenced proceedings to seek DEC and Town approval for a massive expansion in its operating capacity. Those proposals extended to both an increase in the maximum height of its existing garbage burial mound and the development of an additional 154 acres next to the 40-acre site. The subsequent determination to close the landfill caused the Town to defer further action, but following the commencement of bankruptcy proceedings the Town Board resolved on December 9, 1991 to deny those applications.

The Town Board's December 1991 rejection of the Orleans Sanitary Landfill expansion application was subject to further review and negotiation, and over the next three years the Town engaged in periodic discussions with the Trustee and Waste Management with respect to the regrading and capping of the 40-acre landfill, the assessment of fees for continued dumping, and the prospect of Waste Management's expanded operations under the 1990 application. Subsequently, on March 24, 1995 Waste Management filed a revised landfill operating license and grading permit application with the Town. That proposal called for the current use of between 73 and 77 acres, rather than 154 acres that Orleans Sanitary Landfill had planned. Despite representations by Petitioners herein, the revised application did not so much represent a reduction in the scale of the operation as it did a change of configuration, since Waste Management also planned to significantly increase the maximum height of the mound of waste that would be created.[FN3] Additionally, while the initial Orleans Sanitary Landfill proposal would have exhausted most, if not all of the remaining waste storage capability of the site, the current Waste Management plan does not account for the potential landfill development of significant acreage at the site during the 48-year lease term. Those parcels - whether currently leased, or optioned for further development proposals through July 2008 - consist of some 60 acres within the 204-acre site. Waste Management also has been provided an option to reopen the capped 40-acre Orleans Sanitary Landfill for additional landfill. The Court notes that the current plan calls for exhaustion of storage capacity in 16 to 18 years, approximately one-third of the lease term, and that the proposed Host Community Agreement between the Town and Waste Management, Clause IV (E), acknowledged the potential for future lateral and vertical expansion applications, and the operator's right to litigate in the event the Town rejected future development applications for the site. Understanding that options for additional landfill expansion have not been exercised, and the host community agreement never executed, the point remains that the Waste Management proposal is not truly scaled back from the earlier Orleans Sanitary Landfill plan, given the suggested vertical limits and potential for additional development.

On or about March 24, 1995 Waste Management submitted the revised application for a landfill license to the Town. By December 1995 the landfill operator had completed its supplemental submissions, and the Town acknowledged that the license application, as set forth under Chapter 49 of the former Town of Albion Code [*5](Respondents' Exhibit 73), was deemed complete. The Town Board, which was charged under former Town Code §§ 49-14 (G) and 49-16 with the responsibility for the review, approval and conditioning of such licenses, never took action on the 1995 application. Instead, through a series of enactments on January 8, February 12 and March 11, 1996, the Town Board acted to bar development of any further solid waste landfills within the Town, and directed the Town Clerk to return the Waste Management application without action.

On or about April 19, 1996 the Town Board also adopted a written comprehensive plan that found landfill uses no longer consistent with the Town's land use goals for the area in question. Under that plan the area would no longer be zoned for industrial development, and instead would support agricultural and residential uses. Waste Management and the Trustee subsequently commenced an adversary proceeding in Bankruptcy Court, in part seeking a declaration that the 1996 enactment would not govern the 1995 landfill license application, together with money damages against the Town and Town Board. The landfill operator and Trustee also filed an action in Supreme Court in April 1996, seeking a declaratory judgment nullifying those enactments. Negotiations ensued over the next 17 months, and on September 29, 1997 the parties entered into an agreement ("Settlement Agreement" [Respondent's Exhibit 74]) that resolved both the Bankruptcy Court and Supreme Court litigation. That agreement provided for the resubmission of the landfill license application, amended to conform to the same height and footprint dimensions reflected in separate submissions it had made to the DEC in 1994, as part of a permit application to that agency for the operation of a solid waste management facility under 6 NYCRR part 360. The Settlement Agreement, at Article 3 (C), listed the criteria that the Town Board would use in evaluating that application, including an agreement to rely upon Chapter 49 of the Town Code as it existed at the time of the initial application, and before the 1996 enactments. Applications for a special use permit and grading filling permit, also required under Town Code § 49-13, were to be separately reviewed, and determined as part of that process. The parties agreed that eleven factors would be considered, the first six of which would also be weighed by the DEC as the lead agency charged with the review and approval of a Final Environmental Impact Statement (FEIS) under ECL Article 8 (The State Environmental Quality Review Act [SEQRA]). Those factors consisted of the following: (a) hydrogeological report sufficiency; (b) leachate generation into surface and ground waters; (c) nature of solid waste to be disposed; (d) extent of litter, noise or rodent infestation problems; (e) adequacy of drainage and sanitary sewer connections; (f) wetland degradation; (g) suitability with current and future land uses, surrounding community character, and anticipated growth in surrounding area; (h) adverse effects on vehicular traffic/adequacy of vehicular traffic access and circulation into the landfill; (i) economic benefits and costs; (j) environmental, social and economic impacts; and (k) whether reasonable permit conditions would mitigate or avoid identified significant adverse impacts (Settlement Agreement, Article 3 [C]). The Town agreed that it would not restrict the height of any [*6]landfill license it granted to less than 690 feet mean sea level [FN4] (Settlement Agreement, Article 3 [D]). So also, DEC approval of related applications would constitute prima facia evidence of approval of factors (a) through (f) above (Settlement Agreement, Article 3 [E]). The parties further provided "that (the Town) shall, in accordance with this Agreement, approve, approve with conditions, or deny the applications based upon its specific findings relative to the potential benefit, detriment, and environmental impact upon the community" (Settlement Agreement, Article 3 [F]).

On April 2, 1999, Waste Management submitted the applications contemplated under the Settlement Agreement (see Affidavit of Kevin Bernstein, Exhibit B; Respondents' Exhibit 2). While denominated "Application for Town of Albion Landfill License and Town of Albion Filling and Grading License," the submission also was expressly referenced as constituting Waste Management's "Special Use Permit application" (see Bernstein Exhibit B/Respondents' Exhibit 2, p. 1 [letter dated April 2, 1999, to Dr. John Fernandez, Supervisor, Town of Albion from Richard D. Sturges, Waste Management of New York, LLC]), and for that reason the Court rejects Petitioners' repeated assertion that no such request had been submitted.[FN5] Consistent with Settlement Agreement Article 3 (A) and (B), and negotiated extensions, the Town Board deferred action on those applications for the next four years, during which the DEC continued in its processing of Waste Management's 1994 permit application, serving as lead agency for SEQRA review purposes. In May 1994 the DEC determined that the proposed landfill would constitute a Type I Action under SEQRA. Between 1996 and 1999 Waste Management prepared and supplemented its Draft Environmental Impact Statement (DEIS), which ultimately was revised in February 1999, and acknowledged as complete by the DEC in March 1999 (see Affidavit of Peter Nielsen, Exhibit B; Respondents' Exhibit 4). Two public hearings were then scheduled for July 1, 1999. The first addressed Waste Management's application for the Town licenses and permit. The second, separate legislative-type hearing, conducted later that evening before a different Administrative Law Judge, covered the DEC permit process. Various issues were raised for possible adjudication, and rejected by the presiding Administrative Law Judge, Edward I. Buhrmaster, in proceedings in which the Town participated as an intervenor. Following further modification in an administrative appeal, a lengthy hearing with respect to a single issue, hydrogeology, occurred in the spring and summer of 2001. Other comment with respect to matters not subject to the adjudication hearing, extending to many of the issues disputed herein, continued through mid-October 2002. Negotiations also occurred between Waste Management, the DEC, the Town and the Town of Murray concerning on-site noise levels [*7](Respondents' Exhibit 128). Waste Management also entered into an agreement with the Canal Corporation addressing that entity's concerns with the development of a landfill next to the Erie Canal. Thereafter, on February 10, 2003, DEC Commissioner Erin Crotty issued final SEQRA findings, and directed that the agency issue permits for the construction and operation of the landfill.

Following the DEC licensing approval the Town proceeded to complete its review and determination of the applications. As part of that process the Town referred the Special Use Permit application to the Orleans County Planning Board for its review. That referral was necessitated by the project's proximity to the Town of Murray, and two County roads (see General Municipal Law § 239-m [3] [b] [i], [iii]). On March 28, 2003 the Planning Board issued a report unanimously recommending the denial of the Special Use Permit (Respondents' Exhibit 148; see also Affidavit of Brian Napoli, Chairman of Orleans County Planning Board, Exhibit A). The report cited the negative impact the facility would have on canal-related recreation, as well as aesthetic problems, community development concerns, and traffic congestion. The report also found the proposed land use to be inconsistent with the development plans contemplated by the 1996 Comprehensive Plan. That recommendation, while not binding upon the Town, worked to compel that any decision to approve the Special Use Permit would require more than a simple majority vote by the Town Board (see General Municipal Law § 239-m [5]). The Town's Planning Board also conducted a hearing addressed to the issuance of a Special use Permit, and similarly recommended denial in a vote that was not binding upon the Town Board.

On May 19, 2003, the Town Board voted unanimously to deny the Waste Management applications. In so doing it issued a 100-page "Statement of Findings and Decision" (see Affidavit of Kevin Bernstein, Exhibit A; Respondents' Exhibit 1), that discussed in detail its determinations and the several grounds therefor. Petitioners then commenced this proceeding on June 18, 2003, filing a verified petition that set forth 15 causes of action, variously addressed to whether the Town Board's determinations were arbitrary and capricious, or supported by substantial evidence. However, counsel for the parties subsequently stipulated in open court that the sole standard for review for all matters herein will be whether the Town Board acted in an arbitrary and capricious manner, and that a "substantial evidence" test is not to be applied to any of the determinations in dispute.

The Court will next address Petitioners' burden of proof in this matter. Notwithstanding the adoption of a comprehensive plan in 1996 which found that further landfill operations in the area in question were inconsistent with overall development plans for the community, the Town agreed as part of the Settlement Agreement to consider the resubmitted Waste Management proposal under the zoning standards that had existed in March of 1995, when Waste Management first filed the revised applications. Under former Town Code § § 49-14 (G) and 49-16 the Town Board itself possessed the authority to approve and condition landfill license applications. Section 49-13 of the former code deemed a landfill to be a nonconforming use within the Town's zoning laws, and subject to the issuance of a special permit, as part of any landfill license issued pursuant to section 49-14, although separate and distinct from that license. That classification under the earlier code did not allow for operation of a [*8]landfill as a matter of right. Nevertheless, "[t]he inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243 [1972] [citations omitted]). For that reason Petitioners' burden of proof as part of the special permit process is much lighter than that required for a variance to allow for an otherwise prohibited use (see Matter of North Shore Steak House, 30 NY2d at 244; Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000, 1002 [1997]). Clearly, however, the Town Board possessed discretion to make commonsense judgments in deciding whether to grant the application, provided that those judgments were supported by substantial evidence, applied in accordance with the ordinance, and not as a simple reaction to generalized community objections (see Matter of Twin County Recycling Corp., 90 NY2d at 1002; Matter of Market Sq. Props. v Town of Guilderland Zoning Bd. of Appeals, 66 NY2d 893, 895 [1985]). Moreover, since the Town Board had reserved to itself the authority to grant the license and permit, the ordinance was not required to set specific standards, and the board was free to consider factors that were not inconsistent with the code (see Cummings v Town Bd. of North Castle, 62 NY2d 833, 834-835 [1984]) and Settlement Agreement. The Town Board's authority and discretion in making its determination must be respected, provided Respondents did not act in a capricious manner (see Cummings, 62 NY2d at 834-835). In reviewing such determinations "the courts do not make new or substitute judgments but restrict themselves to ascertaining whether there has been illegality, arbitrariness, or abuse of discretion" (Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20, 24 [1962]).

To uphold the determination of the Town Board the Court need only look to its discussion of vehicular traffic issues. Those factors were identified as appropriate for consideration under Settlement Agreement Article 3 (C) (k), yet expressly exempted from the prima facie consequences of DEC approval for related applications under Settlement Agreement Article 3 (E). To the extent Petitioners contend that Respondents were bound to the DEC's further review and rejection of a "no action" alternative as part of its SEQRA lead agency status (see DEIS § 5.11-1), that assertion is inconsistent with the Settlement Agreement's limitations on the prima facie effect to be afforded the DEC's approval processes, and repugnant to the express right within that agreement for the Town to independently review and act upon the application pursuant to Settlement Agreement Article 3 (F). Moreover, independent of the parties' agreement, the Town possessed the power to separately review the matter. Ultimately, local land use determinations are within the exclusive responsibility of a municipality, and DEC approvals, while factors for review, are not binding upon local governments as they regulate land use within their communities (Matter of Albany-Greene Sanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d 644, 645-646 [1999]; lv denied 94 NY2d 752 [1999] [zoning board not bound to DEC's negative declaration under SEQRA and permit approval in its land use determinations]; Matter of Zagoreos v Conklin, 109 AD2d 281, 297-298 [1985] [noting continuing authority of municipalities to regulate waste disposal facilities under ECL 27-0711, notwithstanding DEC approval under its own standards and regulations]). [*9]

Here, the DOT itself recognized the Town's separate role in the assessment of traffic impacts in its correspondence to the DEC of August 17, 1999 (Respondent's Exhibit 121), addressing the need for an updated traffic study: It should be pointed out that our role as a reviewing agency in responding to private development is to protect the public through the orderly flow of traffic movements onto and from the highway, to preserve the publics [FN6] investment in highway capacity, and to assure uniform design and construction of entrances and exits statewide. It is in regards to these factors that we determined that the highway system will not be significantly impacted with the installation of left turn lanes (eastbound and westbound) at the intersection of Route 31 and Densmore Road. The influence of traffic on the quality of life is a function of a number of variables such as noise, type of vehicles, temporal distribution of traffic, dwelling setback from the street, the presence of children and pets, and numerous resident demographic factors. There is no threshold or unit of measure that reflects the residents [FN7] perceptions or level of irritation and we therefore defer to localities on such quality of life issues based on home rule.

The Town's Statement of Findings and Decision, at pages 43-48, addressed exactly those concerns, largely relying upon data from the Traffic Impact Study prepared by SRF & Associates as part of the SEQRA process (see Nielson Affidavit, Exhibit B [DEIS Volume 2, Appendix I]). Issues related to vehicular noise levels,[FN8] aesthetics, delays, and the volume of garbage transport trucks and other vehicles were considered, and judgments made on the basis thereof. The Town's separate review did not challenge the data addressed in the study, but simply moved beyond the road capacity focus of the DOT and DEC to address local traffic issues, including the effects of increased congestion and noise by garbage transport trucks over specific time periods. For that reason Petitioners' assertion that Respondents' analysis would have necessitated a separate traffic study is devoid of merit.

The Court rejects Petitioners' assertion that the DEC's acceptance of a DOT report of traffic impacts, and the subsequent review of the report and traffic study by an administrative law judge (see Exhibit 125, pp. 51-57) precluded the Town from [*10]separately weighing the effects of project-related increases in traffic on the community. The authority relied upon by Petitioners, SCA Chem. Waste Servs. v Board of Appeals of Town of Porter, 52 NY2d 963 (1981), affg 75 AD2d 106, 110 (1980), addressed the narrow question of whether a zoning board could make a finding, inconsistent with the Commissioner of Environmental Conservation, that undetected leakage from a waste disposal pipeline would present an adverse environmental impact under the DEC's regulations themselves. The court held that the DEC's determination meant that the applicant had satisfied the DEC's own standards and regulations, and to that extent was binding upon the municipality. Such a determination, however, would not preclude a municipality from imposing additional standards and requirements, or prohibiting the facility altogether, as long as the municipality's action is otherwise valid (see Matter of Zagoreos, 109 AD2d at 297, discussing SCA Chem. Waste Servs.). Thus, Respondents were free to consider the effects of traffic increases notwithstanding the initial traffic study, or the DOT determination that State highways could sustain the volume of traffic the project would produce, provided certain lane additions were added. The Court further notes that even if it accepted Petitioners' assertions that under SCA Chem. Waste Servs. the Town would be barred from reviewing traffic issues to the extent addressed by the DEC under SEQRA, the DOT's report of August 17, 1999 (Respondents' Exhibit 121) and administrative law judge's discussions of the issue (Respondents' Exhibit 126, pp. 53-56) focused on road capacity issues. As noted previously, the DOT's report to the DEC expressly deferred quality of life issues to the Town, and the administrative law judge did not discuss that specific matter. Thus, the impact of traffic on the community would have remained open for Respondents to consider.

In its review the Town considered that the Densmore Road and Transit Road bridges over the Erie Canal to the north of the site were weight restricted (see Nielsen Affidavit, Exhibit B [DEIS Volume 1, § § 4.7-6, 4.7-7]), and that virtually all access to the site would occur along Densmore Road, north from route 31. The Town also accepted that approximately eighty percent of that traffic would approach the site through the intersection of routes 98 and 31 (Nielsen Affidavit, Exhibit B [DEIS § 5.1-1]). That intersection is located within the heart of the Village of Albion. Those vehicles, including eight-ton garbage trucks and twenty-ton waste hauling vehicles, would then continue east on route 31 past the Town's major employer, Washington Mutual, its school facilities and historic cemetery, before reaching Densmore Road. From the study it appears that major portions of route 98 and 31, as well as Densmore Road, are two-lane highways, and that the DOT has planned some turning accommodations along route 31 at route 98 and Densmore Road to reduce traffic congestion.

Although the facility has a design capacity of 1800 tons of garbage per day, the DEIS traffic study applied a factor of only 1500 tons per day to its analysis. Respondents have urged that the study is flawed for that inconsistency, as well as its reliance upon September traffic patterns instead of busier August usage. The Town also has challenged the study's failure to further consider traffic patterns at the maximum projected use, some 3000 tons per day. Nevertheless, in weighing traffic effects upon the community the Town considered that even at the lower figure of 1500 tons per day the record projected that an additional 850 vehicle trips would occur. That [*11]record included 117 garbage trucks both eight-ton collection trucks and twenty-ton transfer trucks. An additional 199 solid material and other heavy commercial trucks would also travel to and from the landfill. That volume of traffic was projected to occur six days per week. The overwhelming majority would travel through the middle of the Village, then past the Albion schools. All would then proceed through a single intersection, then onto a Town road that does not appear to have been part of the DOT's study. Those figures were even higher at the rated capacity of 1800 tons per day some 1140 vehicle trips per day again along those same routes. Those figures would be higher still at the maximum capacity of 3000 tons per day. Using the traffic study itself the Town Board concluded that the truck traffic and attendant noise in the area of the school would increase by thirty-three percent, and that peak hourly truck traffic and overall traffic increases in that area would reach identified levels that it deemed unacceptable. The Town Board similarly evaluated and determined noise factors and other aesthetic impacts from the volume of the truck traffic generated.

The Court has considered the Petitioners' argument that traffic effects in such a discretionary review are ordinarily to be measured in comparison with other uses that are unconditionally permitted in the area (see Matter of Robert Lee Realty Co. v Village of Spring Val., 61 NY2d 892 [1984]; Matter of 7-Eleven, Inc. v Board of Trustees of Inc. Vil. of Mineola, 289 AD2d 250 [2001]; Matter of Oyster Bay Dev. Corp. v Town Bd. of Town of Oyster Bay, 88 AD2d 978 [1988]). The Court agrees that commonly an evaluation of traffic impacts in a special permit review would need to be measured against uses unconditionally permitted. The circumstances of this application, however, differ from the two store/three mini-theater development proposed for an existing shopping center on a "major artery" in Matter of Robert Lee Realty Co. (see 97 AD2d 441, 443 [1983] [affd as mod at 61 NY2d 892]), the convenience store in Matter of 7-Eleven, Inc., or the business district hotel proposed in Matter of Oyster Bay Dev. Corp. Here, the predictable volume of traffic along a set pattern of both timing and travel routes, as well as the types of vehicles involved are unique to a point of allowing the municipality to exercise a commonsense judgment that is not arbitrary. It cannot be forgotten that Petitioners have chosen a development plan that dwarfs the earlier landfills that had been operated in that area, and even now Petitioners have not suggested an as-of-right use of this rural industrial zone that could fairly be compared to its plan to haul 6.9 million tons of solid waste over a restricted series of two-lane roads, at a rate of 429,000 tons per year. Lastly, once again the Town Board did not simply consider the volume of traffic alone, but the effect that those hundreds and hundreds of garbage transport trips each day, six days per week, for 16 to 18 years, would have on the quality of life in that small community.

In light of the above the Court need not address the remaining bases upon which Respondents denied the application. Nevertheless, the Court will briefly comment on the Town Board's assessment of the visual impacts of the Towpath Facility itself. That consideration likewise was contemplated under Settlement Agreement Article

(3) (C) (g), and did include input from its own expert. The standard of review applied by the Town Board was whether the project would interfere with or reduce the appearance of an "inventoried asset," specifically the Erie Canal and Mount Albion Cemetery, both listed on the National Registry of Historic Places. As with other factors, the Town Board [*12]possessed the authority to weigh the effects of the Towpath Facility on those community landmarks independent of State agency approvals, as it engaged in its responsibility to regulate local land use (see Matter of Albany-Greene Sanitation, 263 AD2d at 645-646 [affirming municipality's denial of special use permit for solid waste transfer station in part premised on negative aesthetic impact on historic building]).

The Erie Canal sits to the immediate north of the site. The cemetery is located some distance to the south, but at the highest elevation within the community, and features a Civil War Memorial viewing tower approximately 75 feet in height. That tower was constructed to allow visitors an elevated panorama of the surrounding area, and the landfill would fall within its northern vista. The Town Board evaluated the visual effects of the Towpath Facility on both historic assets at the proposed height of 200 feet, and also the mitigated height of 155 feet. That process extended beyond a review of the site studies and mitigation simulations set forth within the DEIS, to the point of also retaining its own expert to study the visual impacts of the proposed project.[FN9] In a dispute as to whether conceded visual impacts could be appropriately mitigated the Town Board was again within its discretion to reach a judgment that differed from that suggested in the DEIS (see Matter of Albany-Greene Sanitation, 263 AD2d at 646). Thus, the determination to deny the application based upon a significant negative visual impact was not arbitrary and could also sustain the denial of the application (see Matter of Home Depot, USA v Town of Mount Pleasant, 293 AD2d 677 [2002], lv denied, 99 NY2d 507 [2003]; Matter of Wal-Mart Stores v Planning Bd. of the Town of North Elba, 238 AD2d 93 [1998]).

Based upon the foregoing, it is hereby

ORDERED AND ADJUDGED, that the petition is denied and dismissed in its entirety. Footnotes

Footnote 1: The submissions herein vary in describing whether the 73-acre waste storage area would include or be in addition to the proposed 4-acre overlay on the eastern portion of the closed Orleans Sanitary Landfill.

Footnote 2: The lease agreement also provided for the Trustee's conveyance to Waste Management of a 116-acre parcel in the Town of Barre and 80-acre parcel in the Town of Murray, which had been owned by a bankrupt corporate affiliate of Orleans Sanitary Landfill.

Footnote 3: The current proposal provides for a vertical limit of approximately 200 feet. It appears that the 1995 application contemplated a similar height limit.

Footnote 4:From the submissions, variously 155 or 156 feet in mound height.

Footnote 5: Despite some reluctance on the part of Petitioners to characterize the Special Use Permit application as a separate process, former Town Code § 49-13 and Settlement Agreement, Article 3 (A) recognize that the applications are separate and distinct. The agreement does provide, however, that the applications would be considered in one consolidated hearing.

Footnote 6: As in original.

Footnote 7: As in original.

Footnote 8: The Town, Waste Management, DEC and Town of Murray entered into a "Stipulation Resolving Noise Issue" in March 2001 (Respondent's Exhibit 129). That agreement, however, addressed site-related noise mitigation, rather than traffic in the Town. Factors such as hours of operation would only have had indirect impact on off-site noise levels.

Footnote 9: The Court notes that the simulations set forth in Exhibit 171 mostly portray views of the landfill as it will appears after being closed and capped, and not as waste is being deposited over the 16-to-18-year operational life of the current proposal.