Residents of the town of Carroll hoping to prevent the establishment of a landfill were optimistic about Sealand Waste LLC’s recent claim withdrawal. “A group of people, citizens, got together and drafted a law with our attorney’s help that has stood the test of time here and several court battles,” Supervisor Russ Payne said. P-J photo by Jay Young

FREWSBURG — It is the position of the town of Carroll that Sealand Waste LLC’s challenges to a 2007 waste disposal law should be dismissed due to the recent withdrawal of a claim.

The issue concerns the former Jones-Carroll Landfill that was established on Dodge Road in 1984. After the original owners of the landfill dropped out of the proceedings, Sealand intervened on their behalf in an effort to reestablish the facility. The result has been a decades long back-and-forth legal battle between the company and the town.

Most recently, Sealand had served an intervening complaint that alleged three claims. The first two of these concerned constitutional arguments that the property was taken without due process and through regulatory action, and the third was an argument for an ethics violation regarding the passage of the 2007 law.

In a Nov. 26, 2019, decision by the Chautauqua County Supreme Court Appellate Division, the first two of Sealand’s three causes of action were dismissed regarding how the property was taken.

“The (appellate division) court reinstated a claim that Sealand had made that the law was unconstitutional on an ethics violation,” said Carroll Town Attorney Paul Webb. “We made a motion in Chautauqua County Supreme Court to dismiss that claim on the grounds that there was no conflict. That the law was properly enacted and it was a frivolous cause of action.”

On a recent return date for argument of the case, Sealand withdrew the remaining claim that the law was “arbitrary and capricious” and its passage stemmed from an ethics violation.

The court has not had an opportunity to rule on the claim following the withdrawal. There had originally been a court date set for Feb. 18 to review the third remaining claim, but that has since been taken off of the calendar following Sealand’s withdrawal.

The development is being viewed in a positive light by those who have fought for years to prevent the landfill, such as the Carroll Concerned Citizens.

“That group has worked tirelessly along with Paul Webb and the town to try and keep Sealand out of here,” said Carroll Supervisor Russ Payne. “That last issue came before the court, I think on Feb. 4, and with no fight from Paul the judge denied it. They tried to claim (the 2007 law) was arbitrary and capricious. The judge determined no.”

Payne said he is pleased that this decision upholds precedents for the power of local municipal law in New York.

“In my experience in 16 years of this, municipal home rule has never been defeated in the state of New York in a court of law,” he said. “It has always been upheld. That bodes well for people in small towns like us. A group of people, citizens, got together and drafted a law with our attorney’s help that has stood the test of time here and several court battles.”

Jim Daigler of Daigler Engineering, the company representing Sealand Waste, did not return a request for comment by press time.

ETHICS VIOLATION

The ethics violation in question concerned former board member Michelle Lingenfelter. The complaint made the argument that because of Lingenfelter’s association with the Carroll Concerned Citizens, her role in the passage of the law rendered it “arbitrary and capricious.”

Payne noted that both Lingenfelter and himself had purposefully resigned from that committee before taking office.

“Her being town councilman had no effect on her decision on implementing that law. They (Sealand) thought it was an ethics violation,” Payne said. “They probably had no way of knowing that she had resigned her position on the Carroll Concerned Citizens committee before she took office. They filed suit saying that was an ethics violation. She had already previously resigned her position, so there was no impact. I did the same thing for the same reason. I don’t want there to be, someone to say down the road well ‘Russ Payne was a member the Carroll Concerned Citizens’. Yes I was, but I resigned my position before I took my oath of office.”

HISTORY

In 1989, the town’s Zoning Board of Appeals granted Jones a variance to use the plot of land as a construction and demolition landfill. Afterward, the Department of Environmental Conservation granted Jones a permit to use less than 2 acres of the property as a construction and demolition landfill. The DEC would again grant a permit for further expansion of one acre in 1996.

Active opposition by the town’s citizens began when the town was informed Sealand Waste of Monroe County intended to purchase the Jones-Carroll Landfill. Sealand Waste had applied for a DEC grant to expand the landfill to the entire property.

In 2005, the Carroll Town Board amidst growing public opposition to the landfill unanimously passed an amendment to the town’s zoning laws that eliminated landfills from being operated with special-use permits, and prohibited further expansion of current landfills. Jones-Carroll’s attorneys petitioned the state Supreme Court in Mayville, attempting to cancel the amendment on technical grounds.

In September 2005, the state Supreme Court ruled that portions of the town’s law were invalid in regard to the landfill operated by Jones-Carroll Inc.

Webb made an appeal to the Appellate Division, Fourth Department, in early 2007.

The Appellate Division concluded that it previously erred and that the town had “rationally exercised their police power in declaring that landfills (in the agricultural and residential zoning district) … should be eliminated.”

The Appellate Division also concluded that the town of Carroll had fully complied with all aspects of the Environmental Conservation Law. Jones-Carroll attorneys attempted to renew motions against a 2007 town law that prohibited the construction of any solid waste management facility in the town. The court sided with the town of Carroll again.