Opinion
2008-2886.
Decided April 4, 2011.
HINMAN, HOWARD KATTELL, LLP, BY: ALBERT J. MILLUS, JR., ESQ., OF COUNSEL, BINGHAMTON, NY, COUNSEL FOR PLAINTIFFS.
DONALD G. WALLS, ESQ., TOWN ATTORNEY, THE PERRY BUILDING, BINGHAMTON, NY, COUGHLIN GERHART, LLP, OF COUNSEL TO THE TOWN OF CHENANGO, BY: OLIVER N. BLAISE, III, ESQ., ROBERT H. McKERTICH, ESQ., BINGHAMTON, NY, COUNSEL FOR DEFENDANT.
Defendant Town of Chenango moves for an order granting summary judgment in this consolidated action on the grounds that the material facts are not in dispute and that defendant is entitled to judgment as a matter of law pursuant to CPLR § 3212. More specifically, the issue presented is whether the treated discharge from an outfall pipe connected to the Town of Chenango's wastewater treatment plant is immune from regulation under the Town of Fenton's Aquifer Law.
BACKGROUND
This action and three related actions have been transferred to this court following a long history. Detailed recitations of the history of this matter — both factual and legal — may be found in the prior Decisions Orders of the Hon. Phillip R. Rumsey. However, in order to place this Decision Order into context the court will set forth a brief summary of the relevant facts and litigation history.
A. FACTS
The Town of Chenango (hereinafter "Chenango") is located on the west side of the Chenango River. The Town of Fenton (hereinafter "Fenton") is located on the east side of the Chenango River.
Since 1929, Fenton has owned and operated Hillcrest Water District No. 1 which is also located on the east side of the Chenango River. The Hillcrest Water District draws its water from an aquifer located beneath the Chenango River.
Between 1976 and 1999, private mining operations were conducted on land owned by a private company but located in Fenton and immediately adjacent to the Chenango River. Two large ponds were created to the east of the river resulting from the removal of topsoil and gravel as part of the mining operations. For a period of time, a land berm separated the ponds from the Chenango River.
In 1988, Chenango constructed a sewage treatment plant (hereinafter "wastewater treatment plant" or "WWTP") located on the west shore of the river (opposite to the ponds on the east shore). The effluent from the WWTP was discharged into the main channel of the Chenango River (at a point generally between the WWTP on the west and the mining operation, ponds, and Hillcrest Water District on the east).
In 1991, Fenton adopted the "Town of Fenton Aquifer Law" (Town Code chapter 57) in order to protect the integrity of the aquifer.
In 1997, the land berm separating the Chenango River from the two mining ponds was breached and the main river flow was diverted into and through the ponds. Both Towns and the DEC became concerned that the WWTP effluent discharge into the original main channel was no longer being satisfactorily diluted due to the low water levels in the main channel resulting from the change in the river's flow through the ponds. As such, joint efforts between Chenango, Fenton and the DEC began to repair the breach. Unfortunately, any attempted repair did not last and further discussions were undertaken about additional repairs. As part of these discussions, a series of meetings were held between officials from both Towns, County officials, as well as the DEC representatives. On August 8, 2000, a meeting was held at the Fenton Town Hall at which DEC representatives advised that an expensive hydrological study would be required requiring further repairs which essentially ended any viability of repairing the breach. The last joint meeting was held on July 15, 2004.
The breach first appeared in the 1980s and widened as the years passed.
After joint discussions regarding repairing the berm ceased, Fenton's attention was diverted to other priorities except for the occasional inquiry by then supervisor Edward Banks to the DEC. Chenango continued discussions with the DEC regarding remedies available to rectify the discharge of effluent from the WWTP into the low water levels of the original main channel in the Chenango River. The DEC and Chenango discussed strategy to relocate the discharge point of the WWTP pipe with the primary two options being the relocation of the discharge pipe to either: (1) the shorter distance of 500 feet into the new main channel at a cost of $107,000; or (2) the longer distance of 3,000 feet south where the new river channel rejoins the old main channel at a cost of $800,000. Ultimately, Chenango determined that it would pursue the less expensive option. Fenton asserts it was oblivious to these discussions between Chenango and the DEC as it had always been Fenton's understanding that any relocation of the pipe would be to the longer southerly location.
On March 10, 2006, Chenango submitted to the DEC a Joint Application For Permit which included the following project description:
Project consists of construction of approximately 472 linear feet of new 16" Ductile Iron Pipe outfall line from the existing outfall line (which discharges to the original location of the Chenango River) to a new headwall at the current location of the Chenango River. The existing outfall will be retained for use in emergency conditions. Both outfalls will be valved (emphasis added).
On May 29, 2006 a "Notice of Complete Application" was published in the Press Sun Bulletin which included the following project description:
Application proposes to construct a new outfall from the sewage treatment plant to the Chenango River. Project will require approximately 472 linear feet of new 16" ductile iron pipe outfall line (which discharges to the original location of the Chenango River) to a new headwall at the current location of the Chenango River. Project is located in the Town of Chenango, Broome County [emphasis added].
On June 9, 2007, Chenango published in the Press Sun Bulletin a Notice requesting the submission of sealed proposals for the Outfall Relocation at the Northgate Water Treatment Plant.
On August 7, 2008, DEC issued to Chenango a Permit to construct the new outfall as described in the prior notices.
In August and September 2008, Chenango constructed the extension of the effluent discharge pipe pursuant to the DEC Permit.
On August 28, 2009, Fenton acquired from JAMCAM, LLC fee ownership of 12.88 acres which included the area where the effluent pipe discharged. JAMCAM retained an easement permitting it to use the parcel for business purposes.
In July 2010 Chenango commenced a proceeding to acquire ownership of the property from Fenton pursuant to the Eminent Domain Proceedings Law.
B. LITIGATION HISTORY
The Hon. Phillip R. Rumsey issued five written Decisions Orders in the four related actions, a brief summary of which follows:
1. Index No. 2008-2886 (Preliminary Injunction)
On October 28, 2008, Fenton filed an action against Chenango seeking a temporary restraining order, preliminary injunction, and permanent injunction prohibiting Chenango from discharging effluent from the WWTP in violation of Fenton's Aquifer Law.
On April 29, 2009, Justice Rumsey denied Fenton's request for a preliminary injunction ( Town of Fenton v Town of Chenango, 23 Misc 3d 1140[A], 2009 NY Slip Op 51207[U]).
2. Index No. 2009-1533 (hybrid Article 78 Declaratory Judgment)
On June 23, 2009, Chenango filed a summons and complaint against the Town of Fenton Planning Board and James Keough, Chairman in a hybrid Article 78 proceeding and declaratory judgment. By way of the Article 78, Chenango sought to annul the decision of the Fenton Planning Board which denied Chenango a permit under Fenton's Aquifer Law. Additionally, Chenango sought a declaratory judgment that Chenango's operation of the WWTP was immune from Fenton's Aquifer Law.
On October 27, 2010, Justice Rumsey issued a Decision Order dismissing Fenton's Article 78 petition because of the failure to refer Chenango's permit to the Broome County Planning Board, annulling the Fenton Planning Board's denial of Chenango's application for a development permit under the Fenton Aquifer Law, remitting the matter to Fenton for referral to the Broome County Planning Board and consolidating the remaining declaratory judgment cause of action into the pre-existing action under Index No. 2008-2886 as the counterclaim therein
( Town of Chenango v Town of Fenton Planning Board James Keough, Chairman, Sup Ct, Broome County, October 27, 2010, Rumsey, J., Index No. 2009-1533).
On December 2, 2010, Justice Rumsey issued a Decision Order granting a motion to reargue/renew ( Town of Chenango v Town of Fenton Planning Board James Keough, Chairman, Sup Ct, Broome County, December 2, 2010, Rumsey, J., Index No. 2009-1533). The court vacated that portion of the October 27, 2010 Decision involving the Article 78 petition based upon new evidence that the Fenton Planning Board had, in fact, referred the application to the Broome County Planning Board. More specifically, Justice Rumsey reinstated the Article 78 petition, but held it in abeyance until a decision on the issue of whether the discharge of effluent by Chenango was subject to regulation under Fenton's Aquifer Law (which is the issue now before this court as part of Chenango's pending summary judgment motion). The Decision further stated that the Article 78 would be jointly tried with Index No. 2008-2886 (without consolidation), but that the declaratory judgment cause of action would remain consolidated pursuant to the prior Decision.
3. Index No. 2009-2454 (Trespass)
On August 28, 2009, Fenton acquired from JAMCAM, LLC fee ownership of 12.88 acres which included the new location where the extended effluent pipe discharged. On September 16, 2009, Fenton sued Chenango alleging trespass on its newly owned land.
On October 27, 2010, Justice Rumsey issued a Decision Order denying Fenton's motion for summary judgment on the trespass action because of his simultaneously issued Decision granting Chenango title to said property in the condemnation action ( Town of Fenton v Town of Chenango, Sup Ct, Broome County, October 27, 2010, Rumsey, J., Index No. 2009-2454). As part of said Decision and Order, Justice Rumsey directed that the trespass action (Index No. 2009-2454) would be jointly tried (without consolidation) with the preliminary injunction action (Index No. 2008-2886). Justice Rumsey noted that the trespass action was not dismissed because the parties did not address the issue of whether the discharge of effluent from the pipe (not the pipe itself) constituted a trespass ( Id., p 3, n 2). On November 12, 2010, Fenton filed a Notice of Appeal and that appeal remains pending as of today.
4. Index No. 2010-1694 (Condemnation)
On July 2, 2010, Chenango filed a summons and complaint seeking to acquire ownership of the subject parcel (Tax Map 111.04-1-1) pursuant to Eminent Domain Proceedings Law.
On October 27, 2010, Justice Rumsey issued a Decision Order finding condemnation served a public purpose and authorizing the filing of an acquisition map vesting Chenango with title to the subject property pursuant to EDPL § 402(B) ( In re Town of Chenango, 29 Misc 3d 1216[A], 2010 NY Slip Op 51852[U]). On November 12, 2010, Fenton filed a Notice of Appeal which appeal remains pending.
DISCUSSION
It is well-settled that a balancing of public interests approach is proper to resolve land use disputes between governmental entities ( Matter of County of Monroe [City of Rochester], 72 NY2d 338, 343). More specifically, "[t]his balancing approach subjects the encroaching governmental unit in the first instance, in the absence of an expression of contrary legislative intent, to the zoning requirements of the host governmental unit where the extraterritorial land use would be employed [citation omitted]" ( Id.). Before proceeding the court must address Fenton's threshold arguments that this case is not ripe for summary judgment.
A. THRESHOLD ISSUES
Fenton argues that the very nature of the Monroe balancing test is incompatible with the concept of summary judgment because there are numerous fact questions that remain unresolved. However, case law shows that prior courts have applied the Monroe factors upon a motion for summary judgment so long as there is no conflicting evidence in the underlying record ( Matter of Town of Caroline v County of Tompkins, 299 AD2d 627 [3rd Dept 2002]; Matter of King v County of Saratoga Indus. Dev. Agency, 208 AD2d 194 [3rd Dept 1995], lv denied 85 NY2d 809). While the court agrees that if there is conflicting evidence in the record then a Monroe analysis would be premature ( Town of Riverhead v County of Suffolk , 66 AD3d 1004 [2nd Dept 2009]; Town of Southampton v County of Suffolk, 27 Misc 3d 1235(A) [2010]), this court finds no such conflicting evidence on this record for the reasons set forth below.
With respect to the Fenton's attempt to raise factual questions regarding the contamination issue by way of an affidavit by Christopher J. Yacobucci sworn to on May 13th, 2009, the court finds it fails to raise any material issues of fact. As noted in Chenango's reply brief, Mr. Yacobucci's qualifications are not provided and the affidavit is almost two years old. Furthermore, the affidavit essentially consists of a hearsay recitation of a telephone conversation between Mr. Yacobucci and a DEC representative regarding the monitoring of a separate piece of private property unrelated to the property at issue here. In any event, nothing in Mr. Yacobucci's affidavit contradicts DEC's findings as part of the Permit noted under "Water Quality Certification" that the "[t]he NYS Department of Environmental Conservation hereby certifies that the subject project will not contravene effluent limitations or other limitations or standards under Sections 301, 302, 303, 306 and 307 of the Clean Water Act of 1977 (PL 95-217) provided that all the conditions listed herein are met" (DEC Permit dated August 7, 2008, p 3).
Next, Fenton attempts to raise factual questions regarding whether Fenton had notice of Chenango's application to the DEC for a permit; the DEC's subsequent issuance of that permit; and Chenango's construction of the pipe extension pursuant to said Permit. More specifically, Fenton asserts that Chenango's application incorrectly listed that the project was entirely located in Chenango so that Fenton did not receive the personal notice of said application that would have been required by DEC regulations.
The court has carefully reviewed the voluminous record and finds that Fenton is charged, at the very least, with constructive, if not actual, notice of Chenango's application to the DEC, the DEC's issuance of the Permit, and the subsequent construction thereunder. In this court's view there are two general time periods at issue. The first time period covers the 1980s through mid-2004 when Chenango, Fenton and the DEC were jointly attempting to repair the land berm breach and engaged in numerous discussions in that regard. The second time period at issue covers 2006 through 2008 when Chenango filed an application with the DEC, was granted a DEC Permit, and performed the construction extending the discharge pipe.
With respect to the first time period, there is no doubt that Fenton was an active participant in discussions from the mid-1980s through 2004. Fenton strenuously contends that its understanding throughout said time period was that, in the event the berm could not be repaired, the effluent discharge pipe would be moved downstream, not into the ponds (Millus Affidavit dated February 11, 2011, p 12). While this very well may have been Fenton's understanding, the record reflects that even during this first time period there were references to the possibility of extending the outfall pipe east into the main river flow — which was now the same as saying "the ponds". More specifically, the record reflects the following references to such an extension:
a.A DEC letter dated July 8, 2003 to Chenango's engineer and copied to then Fenton supervisor Edward Banks states "[b]ased on observations of DEC staff at the site, an alternative to relocating the outfall 3000 feet, would be to move the outfall to the main section of the river, approximately 500 feet away."
b.Chenango letter dated August 24, 2004 to the DEC and copied to then Fenton supervisor Edward Banks that extension estimate options included "the short route crossing into the ponds is $130,000."
c.Fenton letter dated September 16, 2004 from then Fenton supervisor Edward Banks to the DEC offering engineering support to Chenango in the continuing attempt to solve the dilution problem.
d.DEC letter dated December 23, 2004 to then Fenton supervisor Edward Banks and then Chenango supervisor confirming that either extension alternative proposed is acceptable to the DEC.
e.Press Sun Bulletin article dated September 27, 2005 showing then Fenton Councilman Bill Smith standing at the original discharge pipe with a caption stating "the Town of Chenango has plans to extend the discharge pipe over to the main river flow to correct the problem."
(Emphases added).
Based upon the foregoing, the court finds as a matter of law that during this first time period that Fenton was on actual notice that one of the approved options under consideration was the extension of the pipe crossing into the ponds, now the main river flow in the Town of Fenton. Despite receiving these actual notices of the alternate extension into the ponds, Fenton never evidenced any concerns or responded in writing.
Even assuming Fenton was not on actual notice of the possibility of extending the pipe into the ponds (now the main river flow) during the first time period, the record reflects that Fenton had constructive notice of Chenango's application to DEC during the second time period. Fenton claims that the DEC and Chenango provided improper notice of the pipe relocation project because the publication of the Notices in the Press Sun newspaper contained an improper description of the Project location as "located in the Town of Chenango, Broome County." However, the court finds that there was sufficient information in the Notices to provide constructive notice to Fenton. For example, the May 29th, 2006 Notice specifically refers to the "new outfall from the sewage treatment plant" of "472 linear feet" to a "new headwall at the current location of the Chenango River (emphasis added)." In and of itself, this language put Fenton on notice that the construction of an extension of the discharge pipe was imminent. More instructive, however, the Notice specifically references the short extension length of 472 linear feet and "the current location" of the Chenango River which was the equivalent of saying "the ponds". On June 9, 2007 another Notice was published in the Press Sun newspaper requesting sealed bid proposals for the pipe construction. In this court's view, for Fenton to argue it was oblivious of the proceedings and to have ignored these Notices because the language did not contain a specific reference to "the Town of Fenton" is irresponsible, at best, considering the Town's role as guardians of the municipal acquifer.
Finally, and equally compelling is the fact that during the construction of the extension pipe, all construction equipment was in full view of the general public including Fenton officials.
More specifically, the record establishes that construction took place in August and September 2008 and included activities such as "[d]igging in the River bed, cutting down trees, the construction of a turbidity curtain (which includes a filter fabric set in the River supported by ropes or cables and floats), the construction of a concrete headwall structure for the new discharge point in the River, and laying the new pipe" (Gent Affidavit sworn to February 12, 2010, ¶ 16). Additionally, the construction "[i]ncluded a bulldozer, a backhoe, several trucks and at least a half a dozen men" (Gent Affidavit sworn to February 12, 2010, ¶ 17).
Based upon the foregoing, the court finds as a matter of law that Fenton was on notice that Chenango had applied to the DEC for a relocation permit, that the Permit was granted, and construction undertaken under DEC authority. Finally, to the extent Fenton disputed the sufficiency of any Notice issued under DEC regulations and/or any DEC decision relating to the issuance of the Permit, Fenton should have challenged said rulings by way of an Article 78 proceeding.
For clarification, the court has addressed these issues at this stage to address Fenton's argument that questions of fact exist regarding Fenton's notice of the DEC permitting process. That having been said, however, the issues of Fenton's opportunity to be heard and intergovernmental participation in the project development process are proper factors for consideration as part of the Monroe analysis and will be referenced again hereinbelow.
B. MONROE ANALYSIS
Having dispensed with Fenton's threshold arguments, the court will next address the factors that comprise the Monroe balancing of public interest analysis. It bears repeating that Monroe requires "[a] balancing approach subject[ing] the encroaching governmental unit in the first instance, in the absence of an expression of contrary legislative intent, to the zoning requirements of the host governmental unit where the extraterritorial land use would be employed [citation omitted]" ( Id.). In other words, before review of the ten Monroe factors, a threshold question must first be addressed, namely whether or not there is specific legislative intent that would subject a project undertaken by one municipality to the zoning and land use regulations of another municipality. In this regard, Fenton argues that Town Law §§ 190 and 220 (4) constitute legislative intent prohibiting Chenango's actions in this case. The court disagrees.
Town Law § 190 states, in pertinent part, that "[u]pon a petition as hereinafter provided, the town board of any town may establish or extend in said town a sewer . . . district . . . and in any town bordering upon or containing within its boundaries any navigable waters of this state . . . and provide improvements or services, or both, in any such district, wholly at the expense of the district (emphasis added). . . ." However, nothing in this provision prohibits sewer lines outside a town's boundaries. In fact, to the contrary, Town Law § 64 (2) permits a town to acquire land either within or outside its boundaries for public purpose by expressly stating that a Town "[m]ay acquire by lease, purchase, in the manner provided by law, or by acquisition in the manner provided by the eminent domain procedure law, any lands or rights therein, either within or outside the town boundaries, required for any public purpose (emphasis added). . . ." Thus, Town Law § 190 does not limit Chenango's actions here.
Next, Fenton argues that contrary legislative intent is revealed by way of analogy in Town Law § 220 (4) which states that "[u]pon the adoption of a resolution therefor, subject to a permissive referendum, the town board may . . . [e]stablish one or more public dumps or dumping grounds within or without such town, and acquire the necessary land therefor. No such land shall be acquired within the corporate limits of any city, village or other town for such purchase without the consent of the governing body of the city, village or town in which such land is situated." In other words, Fenton argues that if one town must obtain permission of a neighboring town for a public dump, the Legislature must have expected the same procedure for a wastewater treatment plant. However, the court agrees with Chenango's analysis that the absence of such a similar provision regarding sewer lines or sewer districts underscores the absence of a legislative intent to prohibit Chenango's actions here. As such, the court will now address the ten Monroe factors.
Factors No. 1-3 : (1) The nature and scope of the instrumentality seeking immunity ;
(2) The kind of function or land use involved ; and (3) The extent of the public interest to be served thereby .
The court accepts Fenton's statement that Chenango and Fenton are co-equal municipalities. That said, the essence of these factors is consideration of whether or not the land use involved — here, the continued discharge of effluent from the pipe as extended at its current location — would serve the public interest.
Initially, this court is bound by the Hon. Phillip R. Rumsey's determination that "[i]t is beyond dispute that operation of a wastewater treatment plant is a proper public use [citations omitted]" ( In re Town of Chenango, 29 Misc 3d 1216[A], 2010 NY Slip Op 51852[U], p 9). A natural consequence of that determination must be that the location of the wastewater treatment plant's discharge pipe is so intertwined with that purpose as to be deserving of the same conclusion.
Nevertheless, even without Justice Rumsey's determination, this court finds the case law overwhelmingly supports the finding that the land use for the continued discharge of effluent from the pipe as extended at its current location is clearly a proper public use and serves the public interest. The operation of a wastewater treatment plant and the location of the effluent discharge pipe may be equated to land uses such as telecommunications towers, sludge landfill, electric generating turbines, housing for the homeless, police radio antennas, and water storage tanks, all of which have been deemed to serve the public interest as proper public uses ( Matter of Crown Communication NY., Inc. v Department of Transp. of State of NY , 4 NY3d 159 , cert denied 546 US 815 [communications towers]; Town of Hempstead v State of New York , 42 AD3d 527 [2nd Dept 2007], lv denied 10 NY3d 703 [telecommunications towers]; Matter of King, 208 AD2d 194 [paper sludge landfill]; Concerned Homeowners of Rosebank et al., 2001 NY Slip Op 40096 (U) [2001] [electrical generating facility]; Town of Queensbury v City of Glens Falls, 217 AD2d 789 [3rd Dept 1995] [water supply and distribution system]). Here, there is no dispute that the WWTP currently services the majority of Chenango including over 2,500 households (approximately 6,500 individuals) and commercial establishments and thus serves the public interest.
Based on the foregoing, the court finds that these three factors (the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, and the extent of the public interest to be served thereby) all support the conclusion that the proposed land use — the continued discharge of effluent from the pipe as extended at its current location — clearly serves the public interest as a proper public use. Accordingly, these three factors weigh in favor of granting Chenango immunity from Fenton's Aquifer Law.
Factor #4 : The effect local land use regulation would have upon the enterprise concerned
In the event Chenango were found subject to Fenton's Aquifer Law, then Chenango would have to submit a development permit application to the Fenton Planning Board pursuant to the Aquifer Law and, potentially, remove the extended pipe from the current location. Chenango argues that if it were required to submit a development permit application to the Fenton Planning Board pursuant to the Aquifer Law, the determination of the Planning Board is already a foregone conclusion — a denial. While this may or may not be the case, the court finds that the possibility of such a denial and thus a relocation of the discharge pipe would not serve the public interest because of the potential for a shutdown of the existing WWTP, the cost of the previously reviewed southerly extension option, as well as the cost and time involved with any additional environmental review process and engineering analysis. Accordingly, this factor weighs in favor of granting Chenango immunity from Fenton's Aquifer Law.
Factor #5 : The impact upon legitimate local interests
Clearly, Fenton's concerns that the continued effluent discharge threatens — now and in the future — its drinking water are legitimate concerns. However, as noted by Justice Rumsey, "[t]he court is unwilling, at this time [as of the preliminary injunction decision], to substitute its judgment on technical matters for that of the DEC, which, on the present record, has consistently concluded that discharge of WWT effluent in its present location poses no threat to plaintiff's water supply" ( Town of Fenton v Town of Chenango, 23 Misc 3d 1140[A], 2009 NY Slip Op 51207[U], p 9). On this motion, Fenton has submitted nothing to suggest the DEC's conclusion has (or should be) changed. Rather, this court — and Justice Rumsey before — has been presented with a history showing three studies (the DEC, the Broome County Department of Health, and Hunt Engineers) all of which concluded that there was no evidence that the treated discharge has or will have a detrimental impact on Fenton's water supply. Additionally, the DEC permit authorizing the discharge relocation certifies that the project met federal Clean Water Act standards and will be tested bi-monthly.
The court finds that while Fenton possesses a legitimate local interest in protecting its water supply, now and in the future, continued DEC regulation of said discharge under the permit and attendant environmental analysis of said discharge will safeguard Fenton's interests. Thus, the court finds that this factor weighs in favor of granting Chenango immunity from Fenton's Aquifer Law.
Factor #6 : The applicant's legislative grant of authority .
As previously outlined hereinabove, Chenango had the legislative authority for crossing its border for the construction and maintenance of a wastewater treatment facility and the acquisition of land for that purpose pursuant to Town Law § 64 (2). The court finds this factor weighs in favor of granting Chenango immunity from Fenton's Aquifer Law.
Factors #7 8 : 7.Alternative locations for the facility in less restrictive zoning areas
8.Alternative methods of providing the needed improvement .
These two factors require a review of alternative locations and methods for the discharge pipe and dilution of the effluent. In Monroe, a distinction was noted between improvements to an existing facility, as here, compared to construction of a new facility. Here, the WWTP pre-dates the effective date of Fenton's Aquifer Law. In any event, as part of the DEC relocation permit analysis, four separate alternatives were identified including: (1) repairing of the breach; (2) leaving the discharge pipe in its original location and upgrading the WWTP; (3) relocating the discharge pipe 3,000 feet downstream at a cost of approximately $800,000; and (4) relocating the discharge pipe 500 feet to the new main channel at a cost of approximately $107,000. The court finds that Chenango adequately reviewed alternatives and selected the most viable plan subsequently approved by the DEC. This factor weighs in favor of Chenango.
Factors #9 10 : 9.Intergovernmental participation in the project development process
10.An opportunity to be heard .
As detailed hereinabove, from the mid-1990s through 2004, Fenton actively participated in joint efforts with Chenango and the DEC to repair the breached land berm during which time Fenton was fully aware of the option of extending the Chenango WWTP discharge pipe into the main river flow, namely the ponds. Thereafter, from 2006 through 2008, Fenton was on constructive notice of Chenango's permit application to the DEC by way of published legal notices in May 2006 and June 2007 as outlined above. While the published Notices might have been clearer, based upon the extensive history including Fenton's direct and indirect participation throughout this matter, this court finds that Fenton was provided a full and fair opportunity to participate in the project development process and had an opportunity to be heard. These two factors weigh in favor of Chenango.
Parenthetically, the record is devoid of any proof that DEC would have denied Chenango's application were Fenton to have actively participated in the DEC permitting process.
When taken together, upon consideration of the balancing approach, this court finds that all the factors weigh in favor of granting Chenango immunity from Fenton's Aquifer Law.
CONCLUSION
Based upon the foregoing, defendant the Town of Chenango's motion for summary judgment is GRANTED and the complaint is dismissed.
It is so ordered.