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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
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JOSEPH E. KAROLYS DBA JOSEPH E. KAROLYS AND SONS,


JOSEPH KAROLYS AND RACHEL KAROLYS HIS WIFE AS
OWNERS OF 1446 ROUTE 212 SAUGERTIES, NEW YORK,
Petitioners,
DECISION/ORDER

-against- Index No. 19-0431


R.J.I. No. 55-19-0212
Richard Mott, J.S.C.
ALVAH L. WEEKS, JR., THE TOWN OF SAUGERTIES
BUILDING INSPECTOR, CODE ENFORCEMENT OFFICER
AND ZONING ADMINISTRATOR, THE TOWN OF SAUGERTIES
POLICE DEPARTMENT, TOWN OF SAUGERTIES ZONING
BOARD OF APPEALS AND TOWN OF SAUGERTIES,
Respondents.
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APPEARANCES:
Petitioners: Melvin T. Higgins, Esq.
195 Wall Street
Kingston, NY 12401

Respondents: John J. Greco, Esq.


Governor Clinton Building
1 Albany Avenue
Kingston, NY 12401
For Respondents Alvah L. Weeks, Jr., The Town of Saugerties
Building Inspector, Code Enforcement Officer and Zoning
Administrator, The Town of Saugerties Police Department and
Town of Saugerties

Mott, J.
PROCEDURAL BACKGROUND

After the Town of Saugerties Code Enforcement Officer, Alvah L. Weeks, Jr. (CEO)

issued stop-work orders to the Petitioners relative to the operation of its C & D processing
facility on Route 212, Saugerties, New York, and the dumping of C & D debris on

Petitioners’ Goat Hill Road and Fel Qui Road properties, Petitioners filed an application for

interpretation with the Zoning Board of Appeals (ZBA), challenging the stop-work orders

which had been issued.

Under Town of Saugerties Zoning Law (TSZL) § 245-37(A)(5) an appeal to the ZBA

stays all proceedings in furtherance of the action appealed from, unless the code

enforcement officer files a certificate of imminent peril with regard to life or property,

which he did here, thereby lifting the automatic stay.

This proceeding ensued by order to show cause (OTSC), dated February 7, 2019 and

verified petition, seeking a stay of all enforcement of the notice of violation and stop-work

orders and all proceedings herein until the final determination of the Petitioners’ appeal to

the ZBA. In the interim, this court issued a Temporary Restraining Order, (TRO) providing

that until the hearing and determination of the petition or further court order, Joseph E.

Karolys d/b/a Joseph E. Karolys and Sons (JK) would be permitted to operate his C & D

business between the hours of 7:00 A.M. and 3:00 P.M. Thereafter, Respondents filed their

verified answer with affirmative defenses and affidavit, to which Petitioners filed a reply.

On April 18, 2019, the ZBA denied Petitioners’ appeal challenging the issuance of the
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notice of violation and stop work orders filed on February 1, 2019. It held, inter alia, that a

solid waste processing facility such as is being operated by JK is not allowed in the

zoning district where the property is located, that waste collection and processing were not

1 Petitioners challenged the ZBA determination in a separate proceeding, but did not therein make application
for, or obtain, a TRO or preliminary injunction. That proceeding was dismissed by this Court. See, Decision
and Order dated November 26, 2019. Karolys v. Weeks, et al, Ulster County Index No. 19-1667.

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part of the business operated by Rothe, the prior owner and that the pre-existing business

designation for trucking and excavation only does not support a solid waste processing

operation.2

In light of the ZBA’s ruling, Respondents submitted an application to the court

requesting that the TRO be vacated and preliminary injunction denied. Petitioners

opposed and asserted that Respondents were selectively enforcing local laws against

Petitioners meriting the continuance of the TRO.

The court conducted a hearing thereon over numerous days, commencing August 7,

2019 through November 4, 2019, during which evidence was adduced in support of, and in

opposition to, the relief sought. The court has evaluated the testimony, credibility,

demeanor, character, and temperament of the hearing witnesses, considered all the

exhibits admitted into evidence, and reviewed the parties’ post-hearing submissions.

NOW, after due deliberation, the court makes the following findings of essential

facts which are deemed established by the evidence and reaches the following conclusions

of law.

FINDINGS OF FACT

1. JK operates a construction and demolition debris (C & D) processing facility at real

property at 1446 Route 212 in Saugerties (Route 212). At the Route 212 site, JK is

accepting ten or more eighteen-wheel truckloads of C & D per day. The C & D is then

reloaded onto trucks and dumped upon two other properties owned by the Petitioners

(Goat Hill Road and Fel Qui Road in the Town of Saugerties).

2 Petitioners purchased the Route 212 property from Roth in 2013.


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2. The court credits the testimony of Joseph Mihm, P.E., of Brinnier and Larios, P.C., that

the net volume of C & D placed at the 90 Goat Hill Road site from 2014 to 2019 is 46,216

cubic yards, that over 27,800 cubic yards of C & D have been dumped on the Fel Qui site,

and that dumping of C & D at both sites is ongoing.

3. Per hearing Exhibit A, (Report of the New York State Department of Environmental

Conservation (DEC), Region 3) and witness David Pollock. DEC engineer, whose

testimony the court credits, representative fill material samples from Petitioners’ three

property sites were collected on May 17, 2019 by qualified individuals. Such material

was placed in laboratory-supplied containers and shipped to Eurofins Test America

Buffalo Laboratory pursuant to a chain of custody.

4. The material arrived at the lab in good condition and JK’s fill was tested for

concentrations of semi-volatile organic compounds, pesticides, PCBs and heavy metals.

5. The laboratory testing demonstrated that the materials contained, inter alia, lead, zinc,

mercury, DDT, volatile organic compounds and PCBs in excess of the allowable limits

for unrestricted use properties such as Petitioners’.

6. Petitioners adduced no evidence of alternative testing of C & D samples from any of

their three property sites, notwithstanding having engaged civil engineer, Robert

Lopinto, (Lopinto), who inspected the three sites and testified at the hearing. Lopinto

merely questioned the method and means of the DEC sample collection, but did not

gather any samples or conduct tests on Petitioners’ behalf.

7. JK has neither applied for, nor obtained, a permit from the Town of Saugerties to

operate a C & D processing facility or a disposal facility.

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8. The court credits the testimony of Assistant Building Inspector Kevin Brown, (Brown),

Town of Saugerties Supervisor Fred Costello (Costello) and Joseph Mihm, P.E., (Mihm)

that JK’s C & D processing facility and dumping operations far exceed in size, scope and

duration, those of any other site in the Town of Saugerties (Town) which may contain C

& D and Brown and Costello’s testimony that JK is the only person in the Town

operating a C & D business.

9. JK complained to Brown and CEO about other sites in the Town which he believed

contained C & D, but did not file a formal complaint. Notwithstanding, Brown visited the

sites JK complained of and found only a small amount of C & D present on two (2) sites,

generated from the construction businesses operated by the property owners.

10. The Court credits Brown’s testimony that the Building/Code Enforcement Department

investigates alleged violations based upon complaints that are received by his office, as

well as random site inspections performed by the Department and investigation of sites

that are observed by Department personnel during the administration of their duties.

11. The Town of Saugerties did not have any zoning or land use regulations prior to 1989.

12. The Rothe family owned the Route 212 property from 1969 to 2013 and conducted a

trucking/excavating business thereon for many years pre-existing the adoption of

the Town Zoning Ordinances on or about 1989.

13. The use of Route 212 for such business was permitted as a pre-existing non-conforming

use at the time of its sale to Petitioners.

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14. On or about January 2019 the CEO issued a stop work order prohibiting Petitioners

from utilizing their Route 212 property as a C&D processing business.

15. The court credits the testimony of JK that if a preliminary injunction was not issued and

the TRO lifted he would be unable to conduct his business, and that if his business was

closed down in the interim and he ultimately prevailed on the merits of this proceeding,

he would be made whole by an appropriate award of money damages.

16. Petitioners filed complaints with the CEO in late February-early March 2019, noting the

absence of special use permits for approximately ten other businesses that JK averred

were similarly situated to his business. Respondents customarily investigated all

complaints received.

17. Petitioners failed to prove, in the first instance, that they were selectively treated by

Respondents as compared to others similarly situated, inasmuch as no credible

evidence was adduced at the hearing that there existed anyone or entity similarly

situated to Petitioners, as there were no C&D businesses at the time extant in the

Town of Saugerties.

18. Secondly, Petitioners failed to prove that the purported selective treatment was based

upon race, religion, intent to inhibit or punish Petitioners’ exercise of their

constitutional rights or by reason of a malicious or bad faith attempt to injure them on

the part of any Respondent.

19. Indeed, Respondents’ witnesses testified that the action taken against Petitioners was

brought solely based upon the size, scope and duration of JK’s operations, not because

of race, religion or any other discriminatory purpose.

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20. Respondent, the Ulster County Health Department and the N.Y.S. Department of

Environmental Conservation each, independently, determined JK’s operations to be in

violation of local, county and state law, respectively.

CONCLUSIONS OF LAW

THE RULING BY THE TOWN OF SAUGERTIES ZONING


BOARD OF APPEALS HAS RENDERED MOOT PETITIONERS’ CHALLENGE
AS TO PERMITTED USES ON ROUTE 212 AND THE VALIDITY
OF THE CERTIFICATES OF IMMINENT PERIL

1. At the time of commencement of this Article 78 proceeding, no decision yet had been

rendered by the ZBA with respect to the validity of the stop work orders. Therefore,

the only legal issue ripe for determination at that time was whether the certificates of

imminent peril issued by the CEO were valid. A proceeding challenging the stop work

orders themselves was not available to the Petitioners since they had not exhausted

their administrative remedies before the ZBA.

2. This proceeding has been rendered moot by the April 18, 2019 decision of the ZBA

on the issues of land use pertaining to Route 212 and the certificates of imminent

peril.3 Thus, there is no longer an automatic stay in effect pursuant to the TSZL.

PETITIONERS ARE NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER/


PRELIMINARY INJUNCTION BECAUSE THEY HAVE FAILED TO ESTABLISH
IMMEDIATE AND IRREPARABLE INJURY, LOSS OR DAMAGE, THEIR LIKELIHOOD OF
SUCCESS ON THE MERITS AND THAT THE EQUITIES WEIGH IN THEIR FAVOR .

3. Preliminary injunctive relief is a drastic remedy which is not routinely granted.

Marietta Corp. v. Fairhurst, 301 AD2d 734 (3rd Dept. 2003). A preliminary injunction

should be issued cautiously and the movant “must demonstrate a clear right to relief

3 See Karolys v.Weeks, et.al, Ulster County Index No. 19-1667, Decision and Order dated November 26, 2019.
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which is plain from the undisputed facts”. Related Properties, Inc. v. Town Board of the

Town/Village of Harrison, 22 AD3d 587, 590 (2nd Dept. 2005). “A party seeking a

preliminary injunction must demonstrate a probability of success on the merits,

danger of irreparable injury in the absence an injunction and a balancing of equities

in its favor.” Nobu Next Door, LLC v. Fine Arts House, Inc., 4 NY3d 839, 840 (2005);

Montour v. Guilford White, 212 AD2d 89l (3rd Dept. l995) (a party seeking a

preliminary injunction must show that it will suffer irreparable harm if the relief is

withheld). A finding of irreparable harm requires evidence establishing such harm to

be “imminent, not remote or speculative.” Family-Friendly Media, Inc. v Recorder Tel.

Network, 74 AD3d 738 [2d Dept. 2010].

4. Here, Petitioners have failed to establish irreparable injury, loss or damage which

cannot be cured by monetary compensation.

5. Where, as here, Petitioners can be compensated fully by a monetary award, an

injunction will not issue because economic loss, which is compensable by money

damages, does not constitute irreparable harm as no irreparable harm is sustained in

the absence of such relief. DiFibio v. Omnipoint Communications, Inc., 66 AD3d 635, 636-

37 (2nd Dept. 2009); Mar v. Liquid Management Partners, 62 AD3d 762 (2nd Dept. 2009).

6. Further, Petitioners have failed to show that they are likely to succeed on the merits

of their claim. The TSC § 204-3 prohibits the use of any lands other than the Town of

Saugerties Transfer Station for the dumping of, among other things, C & D or the

operation of a C & D debris processing facility without a special permit. Petitioners

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have neither applied for, nor obtained a special permit as required by the TSC. Thus,

as to the TSC dumping law violations, Petitioners have failed to establish a likelihood

of success on the merits.

7. Petitioners do not benefit from a pre-existing use for a C&D business at Route 212

See, Karolys v. Weeks, et al, Ulster County Index No. 19-1667, Decision and Order

dated November 26, 2019 (where this court upheld the ZBA’s determination that

Route 212’S pre-existing business designation for trucking and excavation only, does

not include a C & D processing facility).

8. Finally, to be entitled to temporary injunctive relief, the party seeking same must

establish a balancing of the equities in their favor. Aetna Insurance v. Capasso, 75

NY2d 860 (1990).

9. Here, the equities favor Respondents’ enforcement of the TSZL. Indeed, the balancing

of equities as to injunctive relief requires consideration of the “enormous public

interests involved,” Seitzman v. Hudson River Association, 126 AD2d 211, 214 (1st

Dept. 1987) including any injury to the parties and the public welfare. Stampp v.

Board of Supervisors, 141 Misc 487, 491 (Supreme Ct. Cayuga County, 1931);

Metropolitan Transportation Authority v. Tuckahoe, 67 Misc 2d 895, 900 (Supreme Ct.

Westchester County, 1971).

10. A Fortiori, there is a public interest in local control of solid waste management. MVM

Constr., LLC v Westchester County Solid Waste Commn., 162 AD3d 1036 [2d Dept 2018]

PETITIONERS HAVE FAILED TO SATISFY THE HEAVY BURDEN OF


PROVING CONSCIOUS, INTENTIONAL DISCRIMINATION REQUIRED
TO SUBSTANTIATE A CLAIM OF SELECTIVE ENFORCEMENT

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11. Petitioners’ defense of selective enforcement is similarly unproven. A violation of

equal protection arises where a person, compared with another similarly situated, is

selectively treated and that such treatment is based upon impermissible

considerations such as race, religion, intent to inhibit or punish the exercise of

constitutional rights or malicious or bad faith attempt to injure a person. Bauer

Associates v. Town of Pleasant Valley, 2 NY3d 617, 631 (2004).

12. Indeed, Petitioners have not demonstrated any malicious intent or any action with

intent to injure on Respondents’ part meriting an injunction. To succeed on a claim

of selective enforcement, the claimant must prove intentional or purposeful

discrimination, Snowden v. Hughes, 321 US 1 (1944) and the common exercise of

some selectivity in enforcement is not in and of itself a federal constitutional

violation. Petitioners have the burden of proving that the alleged selective

enforcement was based upon an unjustifiable standard such as race, religion or some

other arbitrary classification. DiMaggio v. Brown, 19 NY2d 283 (1967).

13. Here, Petitioners have failed to show that they were singled out with an “evil eye

and unequal hand,” so as practically to unjustly and illegally discriminate

between persons in similar circumstances. Bauer Associates v. Townof Pleasant Valley,

supra.

14. Petitioners have not proven the Town’s local zoning or its laws on processing and

dumping C & D were enforced against them because of race, religion or upon any

other impermissible or invidious personal classification.

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15. Petitioners adduced no proof of a coordinated effort by the Town, and/or the DEC

and/or the U.C. Health Department to selectively proceed against JK’s operations.

16. The fact that each of said three governmental agencies independently determined

that JK’s operations violate state, county or local law, respectively, belies Petitioners’

claim of selective enforcement.

17. It is presumed law enforcement is undertaken in good faith and without

discrimination. Latitude must be accorded authorities charged with making decisions

related to legitimate law enforcement interests. 303 West 42nd Street Corp. v. Klein, 46NY2d

686, 694 (l979). People v. Acme Markets, Inc., 37 NY2d 326 (1975) is inapposite as the

equal-protection violation there was based upon an interest group’s stated intent to

target a certain class of stores for enforcement. It noted that the burden of proving

discriminatory enforcement rests upon the complainant and that same is not lightly

met. Id., at 331. Thus, it does not stand for the proposition that any

complaint-based enforcement is impermissibly discriminatory.

18. Accordingly, the actions of the Town in “enforcing the Zoning Ordinance” did not

result in an unconstitutional taking of the Petitioner’s property without due process

of law and did not result in an unconstitutional interference with Petitioners’

property rights.

19. The TRO previously issued by this court, in all respects, is hereby vacated, and there

being no further justiciable controversy, these proceedings are hereby concluded.

Kingston, New York


December 6, 2019

Richard Mott, J.S.C.


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