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NU attorneys request DEC to suspend asphalt plant permit review

Fri, Apr 23rd 2021 11:00 am

Neighboring communities voice opposition

By Michael DePietro

Tribune Editor

While there was virtually no discussion of the highly contested asphalt facility planned for 4660 Witmer Road during Wednesday night’s Town of Niagara Board meeting, it was very much still being discussed elsewhere.

On April 12, the Town of Lewiston passed a resolution affirming its opposition to the facility. The resolution opposed the construction of the plant due to its proximity with the town’s border, and to “support the opposition expressed by Niagara University, neighboring residents and other stakeholders in the area.”

The resolution noted the Lewiston Town Board “has an obligation to preserve and defend against issues pertaining to the quality of life of all its residents,” and the municipality “had not been previously consulted to provide any input or comment with respect to that asphalt plant.”

Councilman John Jacoby, who authored the resolution, said the Town Board “believes that the construction of such an asphalt plant would have a negative impact on the quality of life for the residents of the Town of Lewiston, the Niagara University community and other stakeholders in the area.”

The City of Niagara Falls also passed a resolution on April 14 affirming its opposition to the facility. Certified copies of this resolution were then sent to the New York State Department of Environmental Conservation (relative to its request for public comment) as well as to the Town of Niagara supervisor, the chairman of the Niagara County Legislature, the Niagara County Planning Board, Congressman Brian Higgins, New York State Sen. Robert Ortt and Assemblyman Angelo Morinello.

Morinello issued a statement this week opposing the site's location.

“It is abundantly clear that a project such as this should not be conducted in any proximity to our residences, Niagara University, or the Niagara Gorge, which we have spent years working to clean up and protect,” he wrote. I am proud of the public advocacy and community support to rescind this permit, and I will always work to protect our communities and the natural beauty of the 145th District.”

Perhaps the most noteworthy development related to the project was when attorney Stephen D. Daly of Lippes Mathias Wexler Friedman LLP, who represents Niagara University, sent a letter dated April 13 to DEC Regional Permit Administrator David S. Denk requesting the agency suspend the applicant on behalf of 4660 Witmer Rd. LLC’s air permit.

The letter cited a number of reasons for the request, including the general uncertainty surrounding the project and the fact the Town of Niagara Board voted last week to rescind all of its previous approvals for the project.

The letter also posits the project is incompatible with the town’s zoning code: "The project is located in the Town of Niagara's Heavy Industrial (‘HI’) zoning district. In addition to allowable uses in Light Industrial districts (which do not apply to the project), the Town Code authorizes uses under certain enumerated ‘classifications from the Standard Industrial Classification [SIC] Manual’ in the HI district. Town of Niagara Code § 245-26(A). The Developer's March 30th supplement to its Application indicates that the site's proposed use is characterized by SIC Code 2951, ‘Asphalt Paving Mixtures and Blocks.’ This is not one of the listed classifications permitted in the HI district under the Town's Code. Nor is it one of the types of uses that is eligible for a special use permit. Id. § 245-26(C). The University has raised this serious zoning issue with the Town of Niagara and expects that it will be an important part of the Town's reconsideration of the proposed project."

The letter also questions whether the developer submitted a "complete" application to NYSDEC: "It is our understanding that the Developer did not provide the SIC or NAICS codes to NYSDEC until March 30, 2021, nearly a month into the public comment period that commenced on March 3, 2021. In light of this oversight, NYSDEC should suspend the public comment period and confirm that the application is in fact now complete. At the very least, the Developer will need to revise its Application to reflect the fact that the Town of Niagara has rescinded all of its approvals for the project. See 6 CRR-NY 621.3(a)(6) (stating that an application ‘must include’ ‘a statement of the status of approval and SEQR review from any other agency or government’).”

The letter concludes by requesting that, if the DEC decides not to suspend the permit outright, it should extend the public comment period until July 2: “Without an extension until at least July, the public will be forced to comment on the Application before the Town of Niagara, the Town of Lewiston, and Niagara County will have completed their respective reviews of the project. Thus, members of the public will not have the benefit of knowing when they comment, for example, how the Town of Niagara will address the project's various zoning incompatibilities.”

Since the Town of Niagara rescinded its previous approvals for the project, the applicant will now head before the Niagara County Planning Board on Monday, May 17.

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