Appeals court upholds New York asphalt plant decision

Court ends latest stage of fight over an asphalt plant in Russia, Herkimer County, New York.The state Supreme Court’s Appellate Division ruled Friday in favor of a prior court decision to uphold a stop-work order issued by the town codes enforcer on Troy Sand & Gravel’s construction of a hot asphalt plant in the town of Russia.

It’s a matter that has been moving through the court system for several years. Attorney William Schmitt, who represents the town’s Zoning Board of Appeals, said the company still has the option to take its case to the state Court of Appeals.

“The appellate division found that the Zoning Board of Appeals basically did their job, examined all the evidence and made the decision based on that,” Schmitt said. “They found it wasn’t arbitrary or capricious and it was done rationally.”

The company’s Albany-based attorney Andrew Gilchrist did not immediately return a request for comment.
In the Appellate Division’s decision, the court wrote that contrary to the petitioners’ claims, the board did not improperly consider evidence submitted to the town and noted that its “determination is supported by more than the generalized objections of neighbors.”

Town of Russia resident Jim Manning, who owns property near where the proposed hot asphalt plant would have been located, said he was relieved by the court’s decision.

“I believe, and a number of residents believe, that an asphalt plant would not be a permitted use and we felt that the company’s claim that an asphalt plant was a continuation of what they’ve been doing with dirt, sand and gravel was not a permitted option in the town,” Manning said. “It’s gratifying to see the court at all levels has agreed with us on that.”

Some residents were worried about environmental and health effects of the plant when the company first introduced the asphalt plant expansion to its already-existing mining operations in 2010. In November 2013, the Zoning Board of Appeals issued its stop-work order, complying with the past actions of the town’s codes officer.

In December 2012, the Town Board adopted a law prohibiting the asphalt plant. Previously, the governing body ruled in favor of Troy Sand & Gravel, contending asphalt production was a practice not permitted by the property’s zoning laws but was grandfathered in.

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