By JOSEPH KELLARD
During the interim, however, the Hempstead Town Board passed a new code that has altered the process of the hearing.
Whereas recyclers were once essentially subject to the standard that their operations would not be ³noxious and offensive² to neighbors, the new code demands that recyclers within 500 feet of a residential area obtain a special use permit, which holds more specific standards on a host of issues, from dust, traffic and light to noise, vibration and drainage.
Nevertheless, William Cohn ‹ attorney for Serota Properties, the Valley Stream-based company proposing to reopen a former recycling facility for construction and demolition materials at Brown Court in Oceanside¹s industrial zone ‹ maintains that the New York State Department of Environmental Conservation (DEC) has already approved the proposed enclosed facility. The DEC determined that the facility meets the standard that materials recycled there will not be noxious and offensive to its neighbors. Cohn also maintains that Serota is only before the zoning board to obtain a permit to raise the roof of the existing building 16 feet to perform its indoor recycling operations, a variance the town¹s building department had denied the company.
³This new ordinance has no effect on our application,² Cohn said at the May 24 hearing. ³We don¹t have to present any new evidence about use. We don¹t need the board¹s approval. If we were seeking a whole new facility, we would go under the new ordinance.²
Anthony Iovino, the attorney representing residents of the Oceanside Cove condominium complex on Daly Boulevard, opposes the facility on the grounds that there are already too many recycling businesses in Oceanside¹s industrial zone, and another would only add to factors from airborne dust to heavy traffic in and around the area. Iovino argued that Serota became the owner of the former recycling facility at the Brown Court site, Gator Recycling Corporation, which was closed in 2003 for incurring fines for code violations; therefore, their reapplication to open a new facility should require Serota to abide by the standards under the new town code. ³This is a whole new case,² Iovino said.
Cohen pointed to a 2003 case involving Rieco Properties in Oceanside, whose application to open a facility on nearby Hampton Road the town zoning board denied, based on the noxious-and-offensive standard. But the board¹s decision was overturned. The court of appeals determined that the noxious-and-offensive standard is ³arbitrary and capricious,² Cohn argued, adding that an appellate court affirmed this when it ruled in Reico¹s favor.
Gerald Wright, the zoning board chairman, said that while he¹s bound by the appellate court¹s decision, he ³doesn¹t believe [the Reico case] pertains to this one,² and that he would accept both sides¹ arguments as different strategies in the hearing.
The board and lawyers devoted most of the March 24 hearing going over these issues, followed by some brief testimony from Serota¹s expert engineer, Jim Tsavaras of J.T. Consulting Services, whose testimony extended through most of the subsequent May 31 hearing.
While Iovino cross examined Tsavaras on various parts of his testimony about the proposed facility, the lawyer kept his questions tied to the standards of the new code, and Cohn objected to certain questions based on his position that they are unrelated to Serota¹s proposal to raise the roof of the facility. Iovino questioned Tsavaras on everything from dust and odor to noise and traffic.
Tsavaras said that the facility will feature a dust suppression system that continuously emits a mist that will carry airborne particles back down on the recyclable materials or the ground. Iovino questioned Tsavaras about the six roll up doors that trucks will go in and out of when dropping their debris, and how during the summer the non-climate-controlled facility will likely keep its doors open, thus allowing dust to escape.
³None of the dust and odor are going to come out?² Iovino asked. ³There¹s no guarantee it won¹t,² Tsavaras said, noting that some of the dust will likely also exit the venting system.
Tsavaras testified that the facility will be open from 7 a.m. to 4:30 p.m. each weekday, and an average of 57 trucks will likely come and go there daily.
Referring to the new code¹s standard regarding a facility¹s potential impact on the surrounding community, such as a nearby bus depot, Iovino questioned the number of trucks that would likely line up outside the facility before the facility opens each morning. Iovino asked if the facility¹s scale master, who will weigh the materials each truck hauls to the site, will be able to see how far the trucks will be line up.
³There¹s no obligation on their part to do this, and no other business is regulated like this,² Cohen objected. The board determined that Serota¹s traffic expert should testify on this issue after Tsavaras finished his cross examination.
Iovino also questioned whether the unknown operator that Serota would sell the facility to will have to abide by the same standards, particularly that the operator may welcome in more tons of debris at the site.
³Whoever operates this facility has to operate within the conditions of the permit,² said Michael Cassidy of Serota Properties, ³and if they don¹t there are extreme penalties,²
The date of the next hearing is expected to be scheduled this week.
