Town of Niagara Board rescinds approval of asphalt plant

Negative SEQR declaration pulled; proposal will now go before Niagara County Planning Board

‘Back to square one’ for asphalt project

Asphalt applicant: ‘If the other 11 are allowed to operate, why can’t we?’

By Michael DePietro

Tribune Editor

The Town of Niagara Board unanimously voted Wednesday to rescind its approval of an asphalt project it had approved on July 21, 2020. The move comes amid significant public outcry to the project and pushback from neighboring communities. The facility was planned to be built at 4660 Witmer Road, near Niagara University’s southern entrance.

The Town Board went into a special session during its monthly work session and passed a resolution to rescind, revoke and cancel both its negative SEQR declaration and its approval of the final site plan request of 4660 Witmer Road LLC, the company behind the project. The resolution directs both board items be referred to the Niagara County Planning Board for review pursuant to the New York state general municipal law.

Attorney Michael Risman said afterward that, upon reviewing the case based on complaints the town received from the county and other neighboring municipalities, he determined the approved plans were indeed in violation of New York state general municipal law 239-M, which stipulates final site plan approval would have be made by the County Planning Board before any action could be taken by the town.

“We’ve received communications from the County Planning Department, we’ve also been contacted by Niagara University, the Town of Lewiston, and I think representatives from the City of Niagara Falls,” Risman said. “If it goes through the process again; if (the perspective purchaser of the property) still wishes to pursue it, there’d be a full opportunity both at the Planning Board and Town Board to submit new studies and new evidence against the project. So I put an item; I provided that all the approvals would be revoked and that any other approval actions that we took of any sort would be vacated, canceled, revoked, so that there be no question of what we’re trying to do here. We’re trying to get back to square one.”

Town Board member Samuel Gatto asked Risman whether the town’s decision to rescind leaves the municipality open to any litigation from the company behind the asphalt facility. Risman said he thinks it is “unlikely” the company would sue.

“I’ve talked to their attorney and I think they realize that there’s a legitimate issue there,” Risman said. “They have some argument that I think they were trying to claim that the plant is more than 500 feet from the town boundary of Lewiston, rather than the entire parcel. But I think the stronger argument is ours. The most that could happen would be ... they could bring a lawsuit; but there’s no potential claim for damages. We would have the support of the county planning department; I assume Niagara University and the Town of Lewiston. So, I’m not really concerned about a lawsuit.”

Risman then went on to indicate the project could potentially stall out due to an expired authorization notice.

“I’ve heard anecdotally that the owner’s contract to purchase the property may have expired,” he said.

Elsewhere, he noted, “It’s my understanding that the pursuer might not have a viable current contract to buy the property still but … I think it’s a legitimate issue that we should send it to the (County) Planning Board and start from scratch. And that’s why I thought we should do it as soon as possible; and that’s why I asked that we have it expedited at a special meeting today.”

Risman clarified his comments: “I don’t have that for sure, but whatever happens ... I’m not really particularly concerned about a lawsuit.”

However, the Tribune/Sentinel reached out to Roseanne DiPizio, a consultant on behalf of the applicant for the project, 4660 Witmer Rd. LLC. While the comment was pointed and brief, she disputed Risman’s claims.

“The property owner needed to provide an authorization to 4660 Witmer Rd. LLC to go to the town and file the application. She did provide that and the authorization does not have an expiration date. Any negotiations beyond that authorization letter is private and will remain private,” DiPizio said. She gave no indication the project was stalling outside of the procedural decisions the Town Board made during the meeting.

“We don’t control procedures; we didn’t control them the first time. The application for 4660 Witmer Rd. has not changed at all, so the outcome should be the same.”

While DiPizio reaffirmed her position to not comment on procedural matters, she admitted the company is certainly “not happy” it will be potentially missing out on the upcoming operating season and the effects will present a “difficult financial burden for the company.”

Per the town’s work session rules, general public comment was not permitted. Supervisor Lee Wallace said public comments would be permissible at the upcoming regular Town Board meeting to be held virtually via Zoom at 6:30 p.m. April 20.

However, Niagara University student Ellen Rajnisz was permitted to read an impassioned address on behalf of the student body pledging an ongoing commitment to oppose not only the proposed facility, but any proposal that would, “Seek to further damage the local environment and the families that live (in the surrounding areas).”

The statement read, in part: “We cannot prioritize profit and industrialization over the health of residents, both current and future. Though we speak today to strongly discourage one proposed plant, rest assured this is one moment in a much larger movement. Through the rapid mobilization of resistance over the past two weeks, the people of Niagara Falls and the Town of Niagara, and the community organizations that support us have made it clear that the environment and our health matter. We will rally against future proposals that seek to further damage the local environment and the families that live here. And we will work to build sustainable initiatives that support the communities and wellbeing of the Niagara Region. We hope we can count on you, the elected officials, to join us in this commitment to our future.”

On Thursday, Niagara University President the Rev. James J. Maher, C.M., released a statement applauding the town’s decision to rescind, as well as indicating NU’s willingness to continue to oppose the plans.

“We have been working on this issue over the past few weeks, and we have had numerous discussions with our elected officials at the local, state, and federal levels,” he wrote. “We have also collaborated with our community partners to identify ways to advance our collective position against this project, and have been guided by outside counsel to develop our legal strategy with regard to concerns inherent in the approval process and the expected environmental impact of the asphalt plant. I express my appreciation to members of the faculty and Niagara students who are working together on these environmental and social justice issues, and learning about the advocacy and research that is needed in our community.”

A Facebook group called Niagara Residents Against the Asphalt Plant, which has been one of the most vocal outlets for resident concerns and frustrations surrounding the proposed facility, released a similar statement immediately following the meeting.

“(The Facebook group) is pleased with the decision of the Town of Niagara Board’s decision to unanimously rescind the previously approved application … (and) for listening to the voices of over 2,500 concerned citizens.”

Still, the group vowed to, “Keep its pulse on this issue for the greater good of our community. Our mission from the onset was to bring awareness to the project, and to demand transparency from our local government.”

Paul Kudela, a Niagara Falls resident who spearheaded the organization efforts against the facility, on Thursday said the efforts were simply a first step.

“We succeeded in our first step to bring awareness to the project. We can do a victory lap, but this is not over,” he said. “The second step is to make sure this process is transparent and following the policies, procedures and laws that are in place to protect against projects like this happening without any sort of public input. Now that it’s in the hands of the county, we hope that they’ll take the public’s input about where this proposed site is supposed to be and use that in their decision making.”

As the asphalt project heads toward Niagara County and the DEC mulls approving the company’s supplied studies and evidence, there is still a very real possibility the facility can be approved and opened.

Kudela said that, as long as the approval process is conducted in a more transparent way than it had been previously, and as long as resident concerns were heard and taken into account, should the overseeing agencies determine the project safe for the general public, he personally could live with that outcome.

“If it’s being done in a transparent way, and is taking input from the public, me personally, I’m willing to accept what the outcome is, as long as it’s taking all factors into account.” Kudela said.

However, he still questioned as to how the SEQR process could potentially find no issue with the facility as it borders three municipalities and Niagara University. He is still unhappy an opportunity wasn’t made previously to comment on the proposed location.

“I’m willing to accept the findings of the SEQR; I’ll accept if the county and the town’s planning boards have no issue. But I won’t accept the fact due diligence wasn’t done earlier on behalf of the residents and the children of this community,” Kudela said.

DiPizio said she “appreciates and respects” Kudela’s position. However, for the company’s part, she feels it has personally done everything to be transparent during the processes with the Town of Niagara, and studies it has provided should prove the plant operates within environmental regulations.

“I am happy to hear that he wants to hear the facts … if this delay means more people can ask questions and get their answers, so be it,” DiPizio said. “But I think if they read all of those (publicly available documents) they would come to the same conclusion that the Town of Niagara came to last year, and the NYS DEC came to this year. And that will be that it should get a negative declaration. Nothing has changed, so the same outcomes should be the same. …

“I am hearing public outcry, but it’s not factual. I have not seen facts to support the outcry positions. We have provided supported evidence. They’re publicly available through the town. We have nothing to hide. 4660 Witmer Rd. LLC wants to put up an asphalt plant and put it up prudently with respect for the environment and respect for the neighbors, and so that it operates within DEC required thresholds. We’re not looking to do anything that would hurt anybody. And if anyone wants to see how an asphalt plant works, there are 11 of them up in WNY. They’re all over the place. … This asphalt plant would not operate any different than those other 11.

“So I ask again, if the other 11 are allowed to operate, why can’t we?”

The next Town Board meeting will take place via Zoom at 6:30 p.m. April 20. The meeting will feature two public hearings. The first concerns a proposed local law regarding the regulation of small cellular wireless facilities in the town with action to be taken on May 7.

The second is in relation to local law change that would remove the residency requirement for the deputy superintendent of highways.