Town of Fenton v Town of Chenango

[*1] Town of Fenton v Town of Chenango 2009 NY Slip Op 51207(U) [23 Misc 3d 1140(A)] Decided on April 24, 2009 Supreme Court, Broome County Rumsey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2009
Supreme Court, Broome County

Town of Fenton and HILLCREST WATER DISTRICT NO. 1, Plaintiffs,

against

Town of Chenango, Defendant.



2008-2886



HINMAN, HOWARD & KATTELL, LLP.

By:Albert J. Millus, Esq.

Attorneys for Plaintiffs

700 Security Mutual Bldg.

80 Exchange Street

P.O. Box 5250

Binghamton, New York 13902-5250

DONALD G. WALLS

Attorney for Defendant

P.O. Box 507

405 Press Building

Binghamton, New York 13902

COUGHLIN & GERHART, LLP By:Herbert A. Kline, Esq.

19 Chenango Street, Floor 10

P.O. Box 2039

Binghamton, New York 13902-2039

Phillip R. Rumsey, J.

Plaintiff Town of Fenton[FN1] commenced this action seeking, among other things, temporary and permanent injunctive relief prohibiting defendant Town of Chenango from discharging effluent from its wastewater treatment plant (WWTP) in a location alleged to be within the Town of Fenton, in violation of the Town of Fenton Aquifer Law, enacted in 1991 (Code of the Town of Fenton, New York, chapter 57; herein Aquifer Law). Plaintiff now moves for a preliminary injunction, and defendant cross-moves for leave to amend its answer.[FN2]

The following history is not in dispute. The Town of Fenton is a municipal corporation located in Broome County. The Town of Chenango, also a municipal corporation located in Broome County, is westerly of, and adjacent to, the Town of Fenton. The boundary line between the parties is the Chenango River. From approximately 1976 through 1999, mining operations were conducted in the Town of Fenton adjacent to the Chenango River. Removal of topsoil and gravel resulted in the creation of two large ponds that were originally separated from the Chenango River by a berm, or land barrier. That berm was breached by the Chenango River, and, as a result, the Chenango River now flows primarily through the ponds, before rejoining the main channel south of the mining area. Consequently, the level of water flow through the original main channel in the area adjacent to the ponds has become very low and, at times, has even ceased.

The Town of Chenango WWTP, located on the west shore of the original Chenango River channel in the vicinity of the ponds, first became operational in 1988. At that time, effluent from the WWTP was discharged into the main channel of the Chenango River. As a result of the diversion of the primary flow of the Chenango River through the ponds, the effluent discharge was no longer satisfactorily diluted, in accordance with Department of Environmental Conservation (DEC) regulations. To solve that problem, the Town of Chenango made application to DEC for a permit for extension of the discharge line to a point where the flow of the Chenango River would be sufficient to dilute the effluent to applicable standards. In August 2008, DEC issued a final permit to the Town of Chenango for extension of the 16 inch effluent discharge pipe to a point in the western edge of the ponds, and, in September 2008, construction of the extension was completed. Approximately 500,000 gallons per day are discharged from the extended line.

Since 1929, the Town of Fenton has owned and operated a waterworks in a portion of the Town known as Hillcrest, which is east of the ponds. The waterworks, used to supply potable water to members of Hillcrest Water District No. 1, draws its water from an aquifer located beneath the Chenango River and the ponds. The Aquifer Law was enacted in an effort to protect [*2]that water source from the threat of contamination.

The Town of Fenton asserts that the extended line installed by the Town of Chenango violates the Aquifer Law in two respects. The first contention is that the line violates the prohibition against "construction of septic systems with a maximum flow rate exceeding 1,000 gallons per day" within "Zone 1 (Wellhead Protection Area)" (Aquifer Law §57-4[A][3]), because the extended pipe discharges approximately 500,000 gallons of effluent per day within the area designated by the Town of Fenton as Zone 1. Second, the Town of Fenton alleges that the extension, for which a permit was required to be obtained from the DEC, was constructed in violation of Aquifer Law §57-8(C), in that defendant failed to obtain a development permit from the Town of Fenton Planning Board.

A municipality seeking a preliminary injunction to prevent an ongoing violation of a zoning, or land use, ordinance need not show irreparable injury as a condition of obtaining such relief (Town of Esopus v Fautsto Simoes & Assoc., 145 AD2d 840 [1988]). Rather, in such a case, a preliminary injunction may be granted "if the evidence supports findings that the municipality is likely to succeed on the merits of its case and that the balancing of the equities weighs in the municipality's favor." (Town of Thompson v Braunstein, 247 AD2d 753, 754 [1998], citing Esopus, 145 AD2d at 841 — 842).

Such standards are applicable to plaintiff's request for a preliminary injunction barring continued violation of its Aquifer Law. A zoning ordinance is one enacted to promote the health or general welfare of the community by regulating the physical use of land (see Town Law §261; see also Louhal Properties, Inc. v Strada, 191 Misc 2d 746 [2002], affd 307 AD2d 1029 [2003]). Wellhead protection ordinances, such as the Aquifer Law, seek to control potential sources of contamination through use of "the usual local government land use tools: zoning [and] conditional use permits[.]" (2 Manaster and Selmi, State Environmental Law §20.30 [2008]). The stated purpose of the Aquifer Law is to "protect the general health and safety of the residents of the Town of Fenton," by minimizing "the potential for contamination of the aquifer which supplies . . . water to users in the Hillcrest Water District No. 1" (§57-2). The Aquifer Law seeks to accomplish its purpose by prohibiting certain activities from being conducted on land located within the specified zones of protection (§57-4), and by requiring that development, or conditional use, permits be obtained under other circumstances (§§57-7 and 57-8). Further, the location of the various Wellhead Protection Zones designated under the Aquifer Law are depicted on plaintiff's Zoning Map (Affidavit of Albert J. Millus, Jr., Esq., sworn to December 17, 2008 [Millus Affidavit], at ¶ 14, Exhibit C). Therefore, it effectively operates as a zoning ordinance.

Turning first to balancing of the equities, a preliminary injunction is a "drastic remedy" which should be granted only when the moving party shows that the equities clearly balance in its favor (Village of Cazenovia v Cazenovia College, 161 AD2d 986, 987 [1990]). In this case, plaintiff essentially characterizes defendant's extension of the discharge pipe into the Town of Fenton, in violation of the Aquifer Law, as a covert operation, completed without any notice to plaintiff and contrary to the parties' previous mutual attempts to address the problems caused by the failed berm.

Plaintiff notes that it is particularly offended by this development, in light of its long-standing efforts to protect the very water supply it believes is threatened by defendant's conduct [*3](Millus Affidavit, ¶¶ 8 and 49; Reply and Opposition Affidavit of Albert J. Millus, Jr., Esq., sworn to March 13, 2009 [Millus Reply Affidavit], ¶ 9). The waterworks, which draws its water supply from an aquifer underlying the Chenango River in the area where the mining operations took place, has been operated since 1929 to serve a majority of the residents of the Town (Affidavit of Donald F. Brown, P.E., sworn to November 7, 2008 [Brown Affidavit], ¶ 9). Based on a study of groundwater quality issues in the Hillcrest area completed in 1990, the United States Environmental Protection Agency recommended development of a local groundwater protection program (Millus Reply Affidavit, ¶ 10). Plaintiff contends that it enacted the Aquifer Law, based on EPA recommendation, to guard against the very type of threat now allegedly posed by defendant's extension of the WWTP effluent discharge pipe to its new location (id.). Plaintiff also notes that its concern was heightened by several instances of groundwater contamination in the Hillcrest area, which culminated in a well-publicized "cancer cluster" involving a number of children in the 1990s (Millus Reply Affidavit, ¶ 17).

Plaintiff submits that it had no role in the events which led to the present situation. Plaintiff specifically alleges that the breach of the berm and the resulting diversion of water from the main river channel occurred because DEC failed to properly oversee mining operations (Millus Affidavit, ¶¶ 20 and 21 ; Millus Reply Affidavit, ¶ 20[l]). It also points to its long-standing efforts to resolve the potential threat to its water supply — even though it did not create the problem — as further evidence of its good faith efforts to protect its water supply (Affidavit of Edward Banks, sworn to November 5, 2008; Millus Affidavit, ¶¶ 24 — 29). Plaintiff contends that defendant's extension of the pipe to discharge into the ponds was in contravention of the parties' understanding (Banks Affidavit, ¶¶ 5 and 7; Millus Affidavit, ¶ 28). Plaintiff also argues that defendant affirmatively misrepresented to DEC, on its application for a permit to extend the line, that the project would be located entirely within the Town of Chenango, and, further, that this misrepresentation deprived plaintiff of a meaningful opportunity to object prior to construction of the extension (Millus Affidavit, ¶¶ 31 — 36).

Finally, plaintiff also argues that the continued discharge of effluent from the WWTP into the ponds, through which most of the volume of the Chenango River now flows, presents the possibility that the aquifer which serves Hillcrest Water District No. 1 may become contaminated (Millus Reply Affidavit, ¶¶ 14 — 19). Plaintiff has submitted evidence which suggests that the Chenango River is connected directly to the deep aquifer, from which Hillcrest Water District No. 1 obtains its water, by connections through a shallow aquifer (Affidavit of Christopher J. Yacobucci, sworn to March 13, 2009 [Yacobucci Affidavit]; Affidavit of Richard Bassler, P.E., sworn to March 17, 2009), and asserts, therefore, that the discharge of over 250 pounds of fecal material per day (Millus Reply Affidavit, ¶14) into this interconnected water system could "eventually" lead to contamination (Yacobucci Affidavit, ¶ 9).

In response, defendant claims that it is also a victim of the improperly-supervised mining operations. Prior to the breach of the berm and the resulting diversion of water from the original main river channel through the ponds, effluent discharge from the WWTP into the original main channel was diluted in accordance with DEC permit guidelines (Affidavit of Edwin C. Gent, P.E., sworn to February 23, 2009 [the Gent Affidavit], at ¶¶ 5 and 6; Affidavit of Donald G. Walls, Esq., sworn to January 23, 2009 [the Walls Affidavit], at ¶¶ 18 and 19). Following the breach, the effluent dilution ratio fell below DEC standards, and, as a result, DEC mandated that [*4]defendant relocate the discharge line (Gent Affidavit at ¶¶ 7 — 11, 13 [second] — 14; Walls Affidavit, ¶ 20). Defendant notes that two alternative routes were proposed for extension of the line, either of which would have had met DEC requirements — extension of the line easterly a distance of approximately 500 feet, at a cost of $107,000, or extension southerly a distance of approximately 3,000 feet, to a point in the main channel south of the ponds, at a cost of $800,000 (Gent Affidavit, ¶ 17; Walls Affidavit, ¶ 21; Affidavit of Edwin C. Gent, P.E., sworn to January 23, 2009, ¶ 21). Due to the substantial cost difference, defendant selected the shorter route (Walls Affidavit, ¶23), and obtained the DEC permit necessary to complete the extension (Affidavit of Edwin C. Gent, P.E., sworn to January 23, 2009, ¶ 23).

Defendant has submitted evidence which shows that the continued discharge of effluent from the WWTP in the present location has not led to contamination of the wells supplying Hillcrest Water District No. 1, and that it is unlikely to do so during the pendency of this action (Gent Affidavit at ¶¶ 30 — 36; Affidavit of Donald W. Benjamin, sworn to February 23, 2009, ¶¶ 1 — 9, 20 — 24). The submissions include a recent opinion from DEC that discharge from the WWTP into surface waters in no way threatens plaintiff's water supply (Gent Affidavit, Exhibit D). This opinion is consistent with the relocation permit, in which DEC stated that "the subject project will not contravene effluent limitations or other limitations or standards under [the Clean Water Act], provided that all of the conditions listed herein are met" (DEC Permit No. 7-0324-00042/00005, Millus Affidavit, Exhibit K; see also Gent Affidavit, Exhibit A [letter from DEC dated July 8, 2003, discussing Draft Environmental Impact Statement for Chenango River Breach, at ¶2(c) and (d)]).

Defendant alleges that a permit will be required from DEC before any change may be made in the location of the effluent discharge pipe (Gent Affidavit, ¶ 37, Exhibit E). Thus, the only means by which defendant could effectively comply with both the requested preliminary injunction and applicable DEC regulations would be to relocate the discharge pipe to a point south of the ponds, where the flow of the river would provide for dilution of the effluent in compliance with DEC standards. The court notes that plaintiff has not suggested any practicable alternative by which defendant might otherwise comply with the requested preliminary injunction.

While the standards applicable to consideration of plaintiff's request for a preliminary injunction may not require that it establish the threat of irreparable injury (see Town of Esopus, 145 AD2d 840), the apparent lack of potential for harm to plaintiff's interests during the pendency of the action may be considered in balancing the competing equities. In that regard, the court is unwilling, at this time, to substitute its judgment on technical matters for that of the DEC, which, on the present record, has consistently concluded that discharge of WWTP effluent in its present location poses no threat to plaintiff's water supply. Moreover, it would be inequitable to burden defendant with the $800,000 expense of relocating the line to comply with a preliminary injunction, when any corresponding benefit to plaintiff from relocation of the line during pendency of the action has been shown to be only speculative.[FN3] Thus, the balance of [*5]equities tips in defendant's favor, and plaintiff's motion for a preliminary injunction is denied.

Having concluded that the balance of equities favors defendant, at this time, the court need not consider whether it is likely that plaintiff will succeed on the merits. The parties are reminded that plaintiff's inability to meet the "heavy burden of justifying a preliminary injunction" (Village of Cazenovia, 161 AD2d at 987) is not indicative of the outcome on the merits, and that plaintiff may very well ultimately establish its entitlement to a permanent injunction and the imposition of a civil penalty, as demanded in the complaint. To that end, the court notes that there is case law providing that an abrupt change to a course of a stream, the center of which forms a municipal boundary, does not affect the location of the boundary. Furthermore, in applying the "balancing of public interests" test adopted by the Court of Appeals in Matter of County of Monroe, 72 NY2d 338 (1988), the ultimate record in this action may support the conclusion that, although the State Legislature has authorized a town to acquire property outside its borders for a legitimate public purpose, the defendant's actions in this case are not exempt from the application of plaintiff's Aquifer Law.

Defendant contends that DEC regulates discharge from its WWTP, and that a DEC permit is required in connection with any relocation of the existing effluent discharge line. A permanent injunction would effectively compel defendant to seek a permit from DEC; thus, it may serve defendant (if not both parties) well to involve DEC in discussions during the discovery phase of this action.

The court is mindful of plaintiff's commitment to protecting the aquifer which serves the Hillcrest Water District, and acknowledges that it has requested that discovery and trial be expedited so that, should plaintiff prevail, the pipe may be relocated prior to the end of the 2009 construction season. Therefore, unless the parties otherwise agree on an expedited schedule, counsel for plaintiff shall provide the court and counsel for defendant with a proposed discovery schedule, which shall identify the scope of anticipated discovery. Within 10 days after receipt of plaintiff's proposed discovery schedule, defendant shall provide the court, and plaintiff's counsel, with its proposed discovery schedule. The court will thereafter issue a scheduling order.

This decision shall constitute the order of the court.

Dated:April 24, 2009

Cortland, New York

_______________________________

Hon. Phillip R. Rumsey

Supreme Court Justice

ENTER Footnotes

Footnote 1: Hillcrest Water District No. 1, a special district created by the Town of Fenton, is also a named plaintiff. As used herein, plaintiff refers to the Town of Fenton.

Footnote 2: An order granting defendant's cross-motion was signed on April 24, 2009.

Footnote 3: In granting a preliminary injunction in favor of a municipal entity, a court is required to specify the limit of the municipality's liability for damages, if it were later to be determined that the preliminary injunction had been improperly granted (CPLR 2512[1]; Bonded Concrete, Inc. v Town of Saugerties, 42 AD3d 852, 856 [2007]; see also CPLR 6312[b]). In this case, were the court to grant a preliminary injunction, it would set the amount of plaintiff's maximum liability for damages to defendant at a level in excess of the entire anticipated cost of relocating the line.