CARRIER salvage/CNY SCRAP
WHAT USE ARE ZONING LAWS IF the TOWN BOARD IGNORES THEM?
Shown above, bottom left, is the original parcel for which the junkyard has a "grandfathered" permit. The Town Board's action is an attempt to expand the permitted area to two additional, adjacent parcels--which is illegal under Sterling zoning laws. The expansion would make the junkyard more than five times bigger. The junkyard is located in an area where any groundwater contamination might spread for miles northward.
Junkyards and scrapyards present potential risks to groundwater resources if they are not properly managed. The Town of Sterling's Land Use Regulations (LUR)--the local zoning laws adopted in 2014--do not allow junkyards or scrapyards except as part of a Planned Development District (PDD). But there is one facility in the Township that has been allowed to operate for decades as a "nonconforming, pre-existing" facility: Carrier Salvage/CNY Scrap (currently doing business as CNY Scrap Processing LLC and Carrier Salvage & Recycling LLC, formerly Wilbur's Junkyard).
In November 2023, for unexplained reasons, the Sterling Town Board doubled-down on unilaterally re-zoning the parcels on the junkyard/scrapyard property, effectively expanding the area in which the business can operate legally by more than five times--in violation of the Town's zoning laws and in defiance of the Town's Zoning Board of Appeals. The Town has also facilitated a legally questionable change from a grandfathered-in junkyard permit to a combined junkyard and scrapyard permit. The photo at left was taken in December 2023. The blue lines show the boundaries of the grandfathered-in, Town-permitted parcel.
Long history of violation: In 1969 the Town adopted a "Regulation of Automobile Junk Yards." By 2005, the Town was citing Wilbur's Junkyard in Martville for failure to apply for a junkyard license and other violations of the junkyard law. In 2006, local Justice Pete Blauvelt had issued an order requiring John Wilbur to clean up the property. In September 2006, for reasons that aren't clear given the violation history, the Town Board passed a resolution recognizing the Wilbur property as a "nonconforming, pre-existing lot provided it be maintained as per the original junkyard law." As a result, in 2006 a junkard permit was issued to John Wilbur for parcel 19.00-1-33.
In 2011, the NY State Department of Environmental Conservation (DEC) notified new owners Kevin and Shelley Carrier of violations of Solid Waste Facility Regulations. The Carriers told the Town Planning Board in February 2011 that they intended to clean up the property and to apply to establish a Planned Development District, as required under the Town zoning law. The Planning Board recommended issuance of a non-conforming use permit and transfer license from Wilbur's Junkyard to Carrier Salvage/CNY Scrap for purposes of addressing DEC violations before proceeding with the PDD process. This license also covered only parcel 19.00-1-33. The Carriers had also purchased two other parcels of land from John Wilbur earlier that year, and during their Planning Board appearance they stated that they intended in the future to combine all the parcels and operate on a total of 22 acres.
2014 DEC Enforcement: In January 2014, the State DEC issued a Notice of Violation to the Carriers regarding the storage of waste tires without a permit; fluid spillage and soil contamination; fluids not stored in proper containers, and failure to comply with annual reporting requirements. In June 2014, the DEC filed an additional Notice of Violation and required that the violations be corrected by August 30, 2014. DEC filed a third violation notice in October 2014. Inspections in 2015 seemed to go well, but by 2016 the DEC was requesting a legal Consent Order to address Carrier Salvage/CNY Scrap's failure to respond to violation notices. In May 2017 an Administrative Law Judge ruled affirmatively on four causes of action: disposing of construction & demolition debris without a permit; operation of a solid waste facility without a permit; unregistered petroleum bulk storage tank; and failure to submit an annual vehicle dismantling facility report. The Carriers were successful in getting the first two causes of action removed. It took until 2021, but the Carriers eventually were able to resolve their issues with the DEC by paying a $2,000 fine. The DEC has not conducted an on-site inspection of Carrier/CNY Scrap since 2021. Here is a summary of the results of a 2023 FOIL (Freedom of Information Law) of DEC records for Carrier Salvage/CNY Scrap.
2015 Sterling Code Violations: Despite the DEC enforcement efforts and the fact that Carrier/CNY Scrap had made no effort to proceed with the PDD process, during the 2011-2014 time period the Town continued to renew permits for parcel 19.00-1-33. Significantly, the initial permit had been for operating a junkyard, but now the permit was for a "scrap processing facility," which is an entirely different use under Town and State law. Finally, in January 2015 Town Code Enforcement Officer Bruce Applebee inspected the Carrier/CNY Scrap facility and denied its application for junkyard permit renewal. The Town issued a Cease and Desist Order that pointed out that the business had expanded from a junkyard facility to a scrap processing facility.
"Your use of the property has expanded beyond a 'junk yard' to a scrap processing facility. Section 1 of the 1969 Junk Yard Law specifically provides that 'the term junk yard shall not be construed to mean an establishment having facilities for processing iron, steel or nonferrous scrap and whose principal produce is scrap iron, steel or nonferrous scrap for sale for remelting purposes only,'" the Cease and Desist order stated.
Because the use of the property as a scrapyard violated the 1969 Junk Yard Law and the "transfer license," the Town revoked the Carrier Salvage/CNY Scrap operating license and grandfathered status. Carrier/CNY Scrap was ordered to cease operation "until such time as you are in compliance with the Town of Sterling Land use Regulations adopted by the Town Board on June 23, 2014." The Cease and Desist Order also states that the failure to apply for a PDD constitutes a violation of the 2011 issuance of the non-conforming use permit and transfer license.
Lawsuit and mysterious payout: In February 2015, Carrier Salvage/CNY Scrap sued the Town, and, notably, sued Code Enforcement Officer Applebee personally as well. The public was kept in the dark while the case languished for years on the court docket. In November 2019 Judge Mark Fandrich submitted an order recommending mediation. The matter was settled in a 2020 mediated legal agreement that incorporated a letter from the Carrier's attorney Peter Rolph as "Exhibit A." For reasons that were never made public, the Town agreed to pay $22,500 to the business. Mediation seems to have resulted in a complete cave-in by the Town of Sterling officials. Court records indicate the court never took action on the case until the 2019 mediation recommendation. Here is the lawsuit filed by the Carriers. Here is the initial Answer filed by the Town's attorneys, who were provided by the Town's insurance company. How the Town went from defending itself in the initial answer to the complete cave-in represented by the mediated legal agreement remains a mystery. Why Judge Fandrich sat on the case for 4 years and then recommended mediation is also very unclear.
January 2021--New permit issued for three parcels: On January 1, 2021, Town Code Enforcement Officer Honore Yuhas issued a Junkyard/Scrapyard permit to CNY Scrap for three parcels: 19.00-1-33, 19.00-1-35.112, and 19.00-1-35-111. This effectively expanded the area in which the business could legally operate and also clearly stated they had license to operate as both a junkyard and a scrapyard. The public was completely unaware of this effective re-zoning and expansion of the scope of the transfer business licensing. All discussion among Town Board members was held in executive session.
Code Enforcement Complaint: Concerned citizens were unaware of the new permit until May 2021, when CNY Scrap posted its permit on Facebook. Morley Flynn and Lauren Crossett, members of a family that owns 300 acres adjoining Carrier Salvage/CNY Scrap, filed a code enforcement complaint in May 2021.
"Scrap processing facilities undoubtedly present threats to area property values, quality of life, and the surrounding environment. As such the Town of Sterling Land Use Regulations, as well as General Municipal Law 136 require a specific application for expansion and permitting for scrap processing facilities, which includes a review process to protect adjacent property owners and all town residents. This process legally requires numerus actions including approval from the Sterling Town Board, the Zoning Board, and the Zoning Board of Appeals," the complaint states. The complaint goes on to detail the specific laws and regulations that should be followed.
No response from Town officials: Flynn contacted Town Supervisor Scott Crawford about the complaint. Six months later, when there was no official response, Flynn requested a hearing before the Town's Zoning Board of Appeals (ZBA).
Junkyards and scrapyards present potential risks to groundwater resources if they are not properly managed. The Town of Sterling's Land Use Regulations (LUR)--the local zoning laws adopted in 2014--do not allow junkyards or scrapyards except as part of a Planned Development District (PDD). But there is one facility in the Township that has been allowed to operate for decades as a "nonconforming, pre-existing" facility: Carrier Salvage/CNY Scrap (currently doing business as CNY Scrap Processing LLC and Carrier Salvage & Recycling LLC, formerly Wilbur's Junkyard).
In November 2023, for unexplained reasons, the Sterling Town Board doubled-down on unilaterally re-zoning the parcels on the junkyard/scrapyard property, effectively expanding the area in which the business can operate legally by more than five times--in violation of the Town's zoning laws and in defiance of the Town's Zoning Board of Appeals. The Town has also facilitated a legally questionable change from a grandfathered-in junkyard permit to a combined junkyard and scrapyard permit. The photo at left was taken in December 2023. The blue lines show the boundaries of the grandfathered-in, Town-permitted parcel.
Long history of violation: In 1969 the Town adopted a "Regulation of Automobile Junk Yards." By 2005, the Town was citing Wilbur's Junkyard in Martville for failure to apply for a junkyard license and other violations of the junkyard law. In 2006, local Justice Pete Blauvelt had issued an order requiring John Wilbur to clean up the property. In September 2006, for reasons that aren't clear given the violation history, the Town Board passed a resolution recognizing the Wilbur property as a "nonconforming, pre-existing lot provided it be maintained as per the original junkyard law." As a result, in 2006 a junkard permit was issued to John Wilbur for parcel 19.00-1-33.
In 2011, the NY State Department of Environmental Conservation (DEC) notified new owners Kevin and Shelley Carrier of violations of Solid Waste Facility Regulations. The Carriers told the Town Planning Board in February 2011 that they intended to clean up the property and to apply to establish a Planned Development District, as required under the Town zoning law. The Planning Board recommended issuance of a non-conforming use permit and transfer license from Wilbur's Junkyard to Carrier Salvage/CNY Scrap for purposes of addressing DEC violations before proceeding with the PDD process. This license also covered only parcel 19.00-1-33. The Carriers had also purchased two other parcels of land from John Wilbur earlier that year, and during their Planning Board appearance they stated that they intended in the future to combine all the parcels and operate on a total of 22 acres.
2014 DEC Enforcement: In January 2014, the State DEC issued a Notice of Violation to the Carriers regarding the storage of waste tires without a permit; fluid spillage and soil contamination; fluids not stored in proper containers, and failure to comply with annual reporting requirements. In June 2014, the DEC filed an additional Notice of Violation and required that the violations be corrected by August 30, 2014. DEC filed a third violation notice in October 2014. Inspections in 2015 seemed to go well, but by 2016 the DEC was requesting a legal Consent Order to address Carrier Salvage/CNY Scrap's failure to respond to violation notices. In May 2017 an Administrative Law Judge ruled affirmatively on four causes of action: disposing of construction & demolition debris without a permit; operation of a solid waste facility without a permit; unregistered petroleum bulk storage tank; and failure to submit an annual vehicle dismantling facility report. The Carriers were successful in getting the first two causes of action removed. It took until 2021, but the Carriers eventually were able to resolve their issues with the DEC by paying a $2,000 fine. The DEC has not conducted an on-site inspection of Carrier/CNY Scrap since 2021. Here is a summary of the results of a 2023 FOIL (Freedom of Information Law) of DEC records for Carrier Salvage/CNY Scrap.
2015 Sterling Code Violations: Despite the DEC enforcement efforts and the fact that Carrier/CNY Scrap had made no effort to proceed with the PDD process, during the 2011-2014 time period the Town continued to renew permits for parcel 19.00-1-33. Significantly, the initial permit had been for operating a junkyard, but now the permit was for a "scrap processing facility," which is an entirely different use under Town and State law. Finally, in January 2015 Town Code Enforcement Officer Bruce Applebee inspected the Carrier/CNY Scrap facility and denied its application for junkyard permit renewal. The Town issued a Cease and Desist Order that pointed out that the business had expanded from a junkyard facility to a scrap processing facility.
"Your use of the property has expanded beyond a 'junk yard' to a scrap processing facility. Section 1 of the 1969 Junk Yard Law specifically provides that 'the term junk yard shall not be construed to mean an establishment having facilities for processing iron, steel or nonferrous scrap and whose principal produce is scrap iron, steel or nonferrous scrap for sale for remelting purposes only,'" the Cease and Desist order stated.
Because the use of the property as a scrapyard violated the 1969 Junk Yard Law and the "transfer license," the Town revoked the Carrier Salvage/CNY Scrap operating license and grandfathered status. Carrier/CNY Scrap was ordered to cease operation "until such time as you are in compliance with the Town of Sterling Land use Regulations adopted by the Town Board on June 23, 2014." The Cease and Desist Order also states that the failure to apply for a PDD constitutes a violation of the 2011 issuance of the non-conforming use permit and transfer license.
Lawsuit and mysterious payout: In February 2015, Carrier Salvage/CNY Scrap sued the Town, and, notably, sued Code Enforcement Officer Applebee personally as well. The public was kept in the dark while the case languished for years on the court docket. In November 2019 Judge Mark Fandrich submitted an order recommending mediation. The matter was settled in a 2020 mediated legal agreement that incorporated a letter from the Carrier's attorney Peter Rolph as "Exhibit A." For reasons that were never made public, the Town agreed to pay $22,500 to the business. Mediation seems to have resulted in a complete cave-in by the Town of Sterling officials. Court records indicate the court never took action on the case until the 2019 mediation recommendation. Here is the lawsuit filed by the Carriers. Here is the initial Answer filed by the Town's attorneys, who were provided by the Town's insurance company. How the Town went from defending itself in the initial answer to the complete cave-in represented by the mediated legal agreement remains a mystery. Why Judge Fandrich sat on the case for 4 years and then recommended mediation is also very unclear.
January 2021--New permit issued for three parcels: On January 1, 2021, Town Code Enforcement Officer Honore Yuhas issued a Junkyard/Scrapyard permit to CNY Scrap for three parcels: 19.00-1-33, 19.00-1-35.112, and 19.00-1-35-111. This effectively expanded the area in which the business could legally operate and also clearly stated they had license to operate as both a junkyard and a scrapyard. The public was completely unaware of this effective re-zoning and expansion of the scope of the transfer business licensing. All discussion among Town Board members was held in executive session.
Code Enforcement Complaint: Concerned citizens were unaware of the new permit until May 2021, when CNY Scrap posted its permit on Facebook. Morley Flynn and Lauren Crossett, members of a family that owns 300 acres adjoining Carrier Salvage/CNY Scrap, filed a code enforcement complaint in May 2021.
"Scrap processing facilities undoubtedly present threats to area property values, quality of life, and the surrounding environment. As such the Town of Sterling Land Use Regulations, as well as General Municipal Law 136 require a specific application for expansion and permitting for scrap processing facilities, which includes a review process to protect adjacent property owners and all town residents. This process legally requires numerus actions including approval from the Sterling Town Board, the Zoning Board, and the Zoning Board of Appeals," the complaint states. The complaint goes on to detail the specific laws and regulations that should be followed.
No response from Town officials: Flynn contacted Town Supervisor Scott Crawford about the complaint. Six months later, when there was no official response, Flynn requested a hearing before the Town's Zoning Board of Appeals (ZBA).
2021 ZBA ruling: Flynn's presentation to the Zoning Board of Appeals (ZBA) at its December 16, 2021 meeting was compelling. The ZBA ruled that "the Code Enforcement Officer was in error in including the two additional properties...for the 2021-2022 building operating permit...and the Code Enforcement Officer shall provide a corrected building/operating permit to include only tax map #19.00-1-33." The ZBA resolution states, "the Members of the ZBA were in unanimous agreement that the issuance of a building permit for the three parcels was incorrect, noncompliant, and incongruous with the intentions of the Town's Land Use Regulations for property development and zoning."
County Court overturns ZBA on a technicality: The Carriers appealed the ZBA resolution. In May 2023, a Judge Thomas G. Leone, Acting Supreme Court Justice overruled the ZBA decision because Flynn does not live on the property adjacent to the junkyard, thus does not have legal standing. It is important to understand that the Court did not rule on the merits of the ZBA's decision, but rather upheld the Carriers' contention that because Morley Flynn did not own property, or live on property, adjacent to Carrier/CNY Scrap, he did not have legal standing to bring the case to the ZBA on behalf of his father, Glenn Flynn, and other family members who do live on the Martville property. In other words, the case was thrown out on a technicality. The Sterling Land Use Regulation allows any resident of the Town of Sterling to file an appeal with the ZBA, making the court ruling especially difficult to understand.
January 2023: In January 2023, Town of Sterling Code Enforcement Officer Jonathan Anna issued another permit. The good news is that the 2023 permit is for only for one parcel: tax map #19.00-1-33, The bad news is that both junkyard and scrapyard operations are permitted.
November 2023--Town doubles-down with new agreement with CNY Scrap: In November 2023, the Town Board approved a Memorandum of Understanding (MOU) ostensibly to clarify the Town's 2020 mediated agreement with Carrier Salvage/CNY Scrap, The original 2020 agreement referred only to "the property." The new MOU defines "the property" as all three parcels, and specifically allows use as both a junkyard and a scrap processing facility. The discussion regarding the MOU were held in private (Executive Session), citing "pending litigation." The public was never given an explanation or otherwise informed about the reasoning behind the MOU, or, in fact, any negotiations between the Town and the Carrier's business.
As the November 2023 Town Board meeting minutes attest, Karen Haas of Sterling Water Stewards questioned how the new MOU that the Town Board had just approved related to the Zoning Board of Appeals (ZBA) findings. "Supervisor Crawford stated the document that was just passed was to clarify the memorandum of understanding (sic). He stated this memorandum of understanding does not have anything to do with the ZBA decision," according to the meeting minutes. And that is the extent of any public information about any of this. Video of the exchange between Ms. Haas and former Supervisor Crawford is worth watching--there was much more to the discussion than the minutes reflect. See the video at https://youtu.be/2XzdjmD0YNE starting at 1:15:40.
Town officials claim MOU will "make enforcement easier": When questioned later, several Town officials (Andrew Joyce, Jonathan Anna, and Caren Thompson) said consolidating the parcels would "make enforcement easier." It is very difficult to understand the argument that combining parcels illegally--or illegally expanding a grandfathered land use to permit an additional use--"makes enforcement easier."
January 2024: ZBA Chair calls MOU "Arbitrary and Capricious": Sterling Zoning Board of Appeals (ZBA) Chair Rich Palmieri went on record about the MOU at the January 2024 Sterling Planning Board meeting. Here are the meeting minutes (see page 4).
Palmieri said he is worried about the impacts of the Town Board overriding the work and decisions of the ZBA, and possibly the Planning Board. "It would appear that a legal foundation has been made for arbitrary and capricious handling of an SUP (Special Use Permit)," Palmieri said.
On January 19, 2024 the Flynn family (Morley, Glenn and Leslie) filed a second appeal to the Zoning Board of Appeals. The appeal application includes a letter from the Flynn's attorney that explains in detail how the Town Board's action "was premised on clear legal error."
Every seat was filled for the Feb 22, 2024 Sterling Town Board meeting. After the Pledge of Allegiance, attendees waited 25 minutes while the Board signed vouchers. Then the floor was opened for comments from the public. Joanne Hunt Piersma, Esq, a Sterling Water Stewards board member, addressed the Board regarding the legal issues related to the Town Board's illegal attempt to allow Carrier Salvage/CNY Scrap to expand from 3.7 acres to over 19 acres. Town Supervisor Andrew Joyce interrupted her after 3 minutes and gave her 30 seconds to conclude her comments. She was not able to complete her remarks but...... Here is the text of Ms. Piersma's statement. Here is the Attorney General Advisory Opinion she referenced. Susan Gateley then addressed the Town Board regarding the environmental risks to groundwater potentially posed by junkyards. She noted that there is potential for any contaminants spilled at the junkyard to migrate into deep groundwater flows and travel for miles. Carolyn Waterman asked whether the attorney who wrote the Memorandum of Understanding (MOU) that attempts to expand the junkyard was Town Attorney Kevin Cox, or the New York MIR counsel. Supervisor Joyce said that the Town Board worked with Kevin Cox. New York Municipal Insurance Reciprocol is an insurance program for municipalities (including the Town of Sterling), and it provides legal counsel that the Town Board can use if it chooses. At the end of the meeting, the floor was again opened for public comments, as is customary. Stephen House asked the Board whether it planned to rescind the MOU, and if not, why not? Supervisor Joyce replied that they need time to consult with Town Attorney Kevin Cox.
Paul Garland said that it is his understanding that the Planning Board and the Zoning Board of Appeals have jurisdiction over implementation of land use regulations, and the Town Board does not. Susan Gateley rose a second time to ask Supervisor Joyce whether he understands the letter that Sterling Water Stewards has submitted to the Town Board regarding this issue. Supervisor Joyce replied, "I understand the letter." Ms. Gateley said she would echo Paul Gardland's comments--there is a legal process for this (that does not include the Town Board). John Pupparo said that the Town Board should have the issue properly taken care of by the Zoning Board of Appeals. He added that he does not feel the Town Board has accomplished much in the past year "as far as being honorable." Glenn Flynn said he has written a letter to the Town Board asking the justification for all the deals they have made in relation to the Carrier Salvage/CNY Scrap property that bypassed the Zoning Board of Appeals (ZBA). "I'd like a written response," he said VIDEO of the Feb 22 Town Board meeting is at the following link:
https://www.youtube.com/channel/UCGdWnzM_8vGbPnTAEkbN4kQ
The initial public comments start at 25:23
The final public comments start at 1:14:13
On Feb 29, 2024, the Town Board held a Special Meeting about CNY Scrap and approved a resolution that read as follows: "RESOLVED: authorizing the Town Attorney to institute a legal process for CNY Scrap seeking enforcement of the terms of the October 2020 agreement subject to legal review." As has been the case since 2015, Town officials are silent, citing "attorney-client privilege" and refuse to explain what the resolution means. Only five days later............
On March 5, 2024, Code Enforcement Officer Jonathan Anna issued a 2024 Operating Permit to Carrier Salvage/CNY Scrap for all three parcels, and for operation of both a junkyard and a scrapyard, citing the Nov. 20, 2023 MOU. The Flynn family promptly withdrew its ZBA Appeal in order to re-work it to include the issuance of the operating permit.
At the March 18, 2024 Town Board meeting, ZBA CHAIR RICH PALMIERI rose at the end of the meeting to ask what "pending litigation" underpins the Town Board's executive sessions (non-public meetings) to discuss legal matters related to CNY Scrap.
SUPERVISOR JOYCE said, "Nothing has been filed yet." Palmieri said, "If an attorney has concern that you are going to be sued, that is not a reason to go into executive session." WATCH THE VIDEO: Go to 1:18:07 of the Town Board video at the link below.
https://www.youtube.com/watch?v=IofdBVXC_vY&t=7s .
PALMIERI informed the Town Board that the Zoning Board of Appeals (ZBA) wishes to consult an attorney regarding the expected re-filing of an appeal by the Flynn family. SUPERVISOR JOYCE said the Town Board could not address Palmieri's request for permission to hire an attorney because the matter was not on the agenda for the March meeting. Palmieri said that Town Attorney Kevin Cox "may have a little conflict" in providing advice to the ZBA regarding the MOU, since Cox was involved in writing the MOU. Palmieri said the ZBA members wish to consult a different attorney. Board member Joan Kelley noted that the Town budget includes money for the ZBA and the Planning Board to hire consultants, and said she understands why the ZBA would like to hire an independent attorney. She noted that as a quasi-judicial body, the ZBA may not need the Town Board's permission to go ahead. Supervisor Joyce said he needed to look into the matter. ZBA Chair Palmieri noted that postponement of the decision regarding an attorney would postpone scheduling of any ZBA hearing on the CNY Scrap matter. WATCH THE VIDEO: Go to 27:00 of the Town Board video at the link below.
https://www.youtube.com/watch?v=IofdBVXC_vY&t=7s
On March 20, 2024, Glenn, Leslie and Morley Flynn filed a lawsuit against the Town of Sterling, the Sterling Town Board, CNY Scrap Processing LLC, and Carrier Salvage and Recycling LLC, challenging the Town's "Illegal MOU" and the permit issuance. Here is the filing. A May 14, 2024 court date has been set. The suit is an Article 78 petition, and was filed within the 4-month window allowed for filing objections to an administrative action of the Town Board. By ignoring the many calls to rescind the Nov 20, 2024 Memorandum of Understanding (MOU), the Town Board will now spend taxpayer dollars to defend its back-room actions.
County Court overturns ZBA on a technicality: The Carriers appealed the ZBA resolution. In May 2023, a Judge Thomas G. Leone, Acting Supreme Court Justice overruled the ZBA decision because Flynn does not live on the property adjacent to the junkyard, thus does not have legal standing. It is important to understand that the Court did not rule on the merits of the ZBA's decision, but rather upheld the Carriers' contention that because Morley Flynn did not own property, or live on property, adjacent to Carrier/CNY Scrap, he did not have legal standing to bring the case to the ZBA on behalf of his father, Glenn Flynn, and other family members who do live on the Martville property. In other words, the case was thrown out on a technicality. The Sterling Land Use Regulation allows any resident of the Town of Sterling to file an appeal with the ZBA, making the court ruling especially difficult to understand.
January 2023: In January 2023, Town of Sterling Code Enforcement Officer Jonathan Anna issued another permit. The good news is that the 2023 permit is for only for one parcel: tax map #19.00-1-33, The bad news is that both junkyard and scrapyard operations are permitted.
November 2023--Town doubles-down with new agreement with CNY Scrap: In November 2023, the Town Board approved a Memorandum of Understanding (MOU) ostensibly to clarify the Town's 2020 mediated agreement with Carrier Salvage/CNY Scrap, The original 2020 agreement referred only to "the property." The new MOU defines "the property" as all three parcels, and specifically allows use as both a junkyard and a scrap processing facility. The discussion regarding the MOU were held in private (Executive Session), citing "pending litigation." The public was never given an explanation or otherwise informed about the reasoning behind the MOU, or, in fact, any negotiations between the Town and the Carrier's business.
As the November 2023 Town Board meeting minutes attest, Karen Haas of Sterling Water Stewards questioned how the new MOU that the Town Board had just approved related to the Zoning Board of Appeals (ZBA) findings. "Supervisor Crawford stated the document that was just passed was to clarify the memorandum of understanding (sic). He stated this memorandum of understanding does not have anything to do with the ZBA decision," according to the meeting minutes. And that is the extent of any public information about any of this. Video of the exchange between Ms. Haas and former Supervisor Crawford is worth watching--there was much more to the discussion than the minutes reflect. See the video at https://youtu.be/2XzdjmD0YNE starting at 1:15:40.
Town officials claim MOU will "make enforcement easier": When questioned later, several Town officials (Andrew Joyce, Jonathan Anna, and Caren Thompson) said consolidating the parcels would "make enforcement easier." It is very difficult to understand the argument that combining parcels illegally--or illegally expanding a grandfathered land use to permit an additional use--"makes enforcement easier."
January 2024: ZBA Chair calls MOU "Arbitrary and Capricious": Sterling Zoning Board of Appeals (ZBA) Chair Rich Palmieri went on record about the MOU at the January 2024 Sterling Planning Board meeting. Here are the meeting minutes (see page 4).
Palmieri said he is worried about the impacts of the Town Board overriding the work and decisions of the ZBA, and possibly the Planning Board. "It would appear that a legal foundation has been made for arbitrary and capricious handling of an SUP (Special Use Permit)," Palmieri said.
On January 19, 2024 the Flynn family (Morley, Glenn and Leslie) filed a second appeal to the Zoning Board of Appeals. The appeal application includes a letter from the Flynn's attorney that explains in detail how the Town Board's action "was premised on clear legal error."
Every seat was filled for the Feb 22, 2024 Sterling Town Board meeting. After the Pledge of Allegiance, attendees waited 25 minutes while the Board signed vouchers. Then the floor was opened for comments from the public. Joanne Hunt Piersma, Esq, a Sterling Water Stewards board member, addressed the Board regarding the legal issues related to the Town Board's illegal attempt to allow Carrier Salvage/CNY Scrap to expand from 3.7 acres to over 19 acres. Town Supervisor Andrew Joyce interrupted her after 3 minutes and gave her 30 seconds to conclude her comments. She was not able to complete her remarks but...... Here is the text of Ms. Piersma's statement. Here is the Attorney General Advisory Opinion she referenced. Susan Gateley then addressed the Town Board regarding the environmental risks to groundwater potentially posed by junkyards. She noted that there is potential for any contaminants spilled at the junkyard to migrate into deep groundwater flows and travel for miles. Carolyn Waterman asked whether the attorney who wrote the Memorandum of Understanding (MOU) that attempts to expand the junkyard was Town Attorney Kevin Cox, or the New York MIR counsel. Supervisor Joyce said that the Town Board worked with Kevin Cox. New York Municipal Insurance Reciprocol is an insurance program for municipalities (including the Town of Sterling), and it provides legal counsel that the Town Board can use if it chooses. At the end of the meeting, the floor was again opened for public comments, as is customary. Stephen House asked the Board whether it planned to rescind the MOU, and if not, why not? Supervisor Joyce replied that they need time to consult with Town Attorney Kevin Cox.
Paul Garland said that it is his understanding that the Planning Board and the Zoning Board of Appeals have jurisdiction over implementation of land use regulations, and the Town Board does not. Susan Gateley rose a second time to ask Supervisor Joyce whether he understands the letter that Sterling Water Stewards has submitted to the Town Board regarding this issue. Supervisor Joyce replied, "I understand the letter." Ms. Gateley said she would echo Paul Gardland's comments--there is a legal process for this (that does not include the Town Board). John Pupparo said that the Town Board should have the issue properly taken care of by the Zoning Board of Appeals. He added that he does not feel the Town Board has accomplished much in the past year "as far as being honorable." Glenn Flynn said he has written a letter to the Town Board asking the justification for all the deals they have made in relation to the Carrier Salvage/CNY Scrap property that bypassed the Zoning Board of Appeals (ZBA). "I'd like a written response," he said VIDEO of the Feb 22 Town Board meeting is at the following link:
https://www.youtube.com/channel/UCGdWnzM_8vGbPnTAEkbN4kQ
The initial public comments start at 25:23
The final public comments start at 1:14:13
On Feb 29, 2024, the Town Board held a Special Meeting about CNY Scrap and approved a resolution that read as follows: "RESOLVED: authorizing the Town Attorney to institute a legal process for CNY Scrap seeking enforcement of the terms of the October 2020 agreement subject to legal review." As has been the case since 2015, Town officials are silent, citing "attorney-client privilege" and refuse to explain what the resolution means. Only five days later............
On March 5, 2024, Code Enforcement Officer Jonathan Anna issued a 2024 Operating Permit to Carrier Salvage/CNY Scrap for all three parcels, and for operation of both a junkyard and a scrapyard, citing the Nov. 20, 2023 MOU. The Flynn family promptly withdrew its ZBA Appeal in order to re-work it to include the issuance of the operating permit.
At the March 18, 2024 Town Board meeting, ZBA CHAIR RICH PALMIERI rose at the end of the meeting to ask what "pending litigation" underpins the Town Board's executive sessions (non-public meetings) to discuss legal matters related to CNY Scrap.
SUPERVISOR JOYCE said, "Nothing has been filed yet." Palmieri said, "If an attorney has concern that you are going to be sued, that is not a reason to go into executive session." WATCH THE VIDEO: Go to 1:18:07 of the Town Board video at the link below.
https://www.youtube.com/watch?v=IofdBVXC_vY&t=7s .
PALMIERI informed the Town Board that the Zoning Board of Appeals (ZBA) wishes to consult an attorney regarding the expected re-filing of an appeal by the Flynn family. SUPERVISOR JOYCE said the Town Board could not address Palmieri's request for permission to hire an attorney because the matter was not on the agenda for the March meeting. Palmieri said that Town Attorney Kevin Cox "may have a little conflict" in providing advice to the ZBA regarding the MOU, since Cox was involved in writing the MOU. Palmieri said the ZBA members wish to consult a different attorney. Board member Joan Kelley noted that the Town budget includes money for the ZBA and the Planning Board to hire consultants, and said she understands why the ZBA would like to hire an independent attorney. She noted that as a quasi-judicial body, the ZBA may not need the Town Board's permission to go ahead. Supervisor Joyce said he needed to look into the matter. ZBA Chair Palmieri noted that postponement of the decision regarding an attorney would postpone scheduling of any ZBA hearing on the CNY Scrap matter. WATCH THE VIDEO: Go to 27:00 of the Town Board video at the link below.
https://www.youtube.com/watch?v=IofdBVXC_vY&t=7s
On March 20, 2024, Glenn, Leslie and Morley Flynn filed a lawsuit against the Town of Sterling, the Sterling Town Board, CNY Scrap Processing LLC, and Carrier Salvage and Recycling LLC, challenging the Town's "Illegal MOU" and the permit issuance. Here is the filing. A May 14, 2024 court date has been set. The suit is an Article 78 petition, and was filed within the 4-month window allowed for filing objections to an administrative action of the Town Board. By ignoring the many calls to rescind the Nov 20, 2024 Memorandum of Understanding (MOU), the Town Board will now spend taxpayer dollars to defend its back-room actions.
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ENVIRONMENTAL CONCERNS:
Potential Impacts on Intermediate and Deeper Regional Groundwater Quality Carrier Salvage/CNY Scrap is located in the southern part of the Town of Sterling, an area of relatively higher groundwater elevations. Groundwater generally flows toward the north in the Town of Sterling. Surface water and groundwater both flow with gravity toward lower elevations (i.e., ultimately Lake Ontario in this case). Where permeable geologic materials (e.g., sand and/or gravel) are present in areas of higher elevation, these areas typically tend to be areas of significant inflow/recharge to groundwater. Some permeable geologic materials have been mapped previously in the area of Carrier/CNY Scrap by government agencies (including the Natural Resources Conservation Service, the United States Geological Survey, and the New York State Geological Survey). Additionally, electrical resistivity (ER) geophysical data collected in 2023 suggest there may be a relatively thick layer of saturated sand and/or gravel present in the vicinity of the Carrier/CNY Scrap parcels that possibly extends down to bedrock. The combination of higher topography and permeable subsurface geology would likely facilitate significant vertical downward groundwater gradients/flow in southern portions of the Town of Sterling. Therefore, it is likely that the Carrier/CNY Scrap parcels and the surrounding area is a groundwater recharge area for intermediate and deeper groundwater flow. As depicted in the illustration at right, deeper groundwater flows typically extend over increasingly broad areas. Contaminants that leach into the ground have the potential to affect aquifers and wells miles away from the source of the contamination. |
Shown above is photographic evidence of an unreported spill discovered by DEC during a 2014 inspection.
Vehicle dismantling facilities such as Carrier Salvage/CNY Scrap routinely handle a variety of potential contaminants associated with automobiles-- including petroleum (fuels, oil, grease), metals, volatile organic compounds (VOCs), and others. Has groundwater quality been affected by Carrier/CNY Scrap past spills or other site operations? Chlorinated volatile organic compounds (CVOCs), commonly used as solvents and degreasers, have higher density than water and tend to sink into the subsurface until they encounter impermeable geologic materials such as unfractured clay, glacial till, or bedrock. In 2014, DEC issued a Notice of Violation requiring corrective action on several violations, including cleanup of stained soil observed at the surface (see photo above). The Notice included a Schedule of Compliance for the corrective action. The Schedule of Compliance required the submission of documentation associated with site cleanup activities, such as receipts documenting the amount of stained soil excavated and transported off site for recycling or disposal at a permitted waste management facility. 
Sterling Water Stewards submitted a public records request in 2023 for NY State Department of Environmental Conservation (DEC) records related to Carrier Salvage/CNY Scrap. We found no evidence in the documents we received as a result of the FOIL that provided details of any cleanup, or subsequent confirmation by soil or groundwater testing. We were left wondering whether groundwater quality beneath the facility had been affected by past spills or other site operations.
Sterling Water Stewards contacted the Regional Engineer for DEC’s Division of Materials Management (DMM), which is in charge of permitting vehicle dismantling facilities like Carrier Salvage/CNY Scrap, to see whether DEC may be willing to request collection of a groundwater sample from the on-site private water supply well. DMM suggested that documentation of past spill cleanups at the property would likely be in files at the DEC’s Division of Environmental Remediation (DER). We FOILed the DER files specifically referencing the cleanup called for in the Schedule of Compliance, and received only some nonhazardous bills of lading for removed tires. We circled back to DMM and advised that there is no documentation of soil clean-up or groundwater testing that was provided by DER, and again requested that they consider testing of the on-site water supply well. DMM indicated they do not believe DEC has the authority to require private water well testing. The Town Code Enforcement Officer, County Dept. of Health, or State Dept. of Health are next on our call list. |