Recycling Inc. saga meanders on: Another court hearing Jan. 7
Recycling Inc. has filed three court cases in its continued legal battle to operate a 45,000-square-foot recycling facility on a 6.7-acre site at 990 Naugatuck Avenue, which is located in the Housatonic Design District.
The company, which also identifies itself as Housatonic Terminal LLC, filed an appeal on Dec. 16, 2015, seeking to overturn a unanimous Dec. 8, 2015 vote of the Zoning Board of Appeals (ZBA).
The ZBA vote upheld a decision by Milford Zoning Enforcement Officer Stephen Harris ordering the company to remove certain materials from the site.
Harris issued an enforcement order on Oct. 27, 2015, after asphalt millings were deposited at 990 Naugatuck Avenue, and due to the ongoing presence of oil barrels and a small amount of junked cars. Harris told Recycling Inc. that it had to remove these items from the property to correct what he viewed as a violation of zoning regulations.
At the Dec. 8 ZBA meeting, Attorney Stephen Bellis, representing Recycling Inc., told the board that these items were consistent with the prior use of the site as a salvage operation. Bellis said a contractor hired by the city had created the asphalt millings.
Speaking on behalf of Recycling Inc., Darlene Chapdelaine told the board that asphalt millings are not regulated by local municipalities, commenting that the millings do not pose a hazardous waste threat.
Chapdelaine said Superior Court Judge Arthur Hiller had issued a ruling exempting such items from local regulation. Chapdelaine had managed the facility at 990 Naugatuck Avenue before it was shut down by the state.
Joseph Barrett, who is listed as the member and agent of the Housatonic Terminal LLC, told the ZBA at the July 14, 2015 meeting that he held a mortgage on the property and regained ownership from Recycling Inc. through foreclosure and forbearance. The company had previously been owned and operated by Gus Curcio Sr. Barrett told the board he did not intend to abandon any past uses when he sold the property.
In response to the Recycling Inc. appeal, Harris told the board at the Dec. 16 meeting that the Department of Energy and Environmental Protection (DEEP) had revoked Recycling Inc.’s permit to construct a volume reduction facility on the property, so any references to what might be permitted were moot.
Harris said the appeal to the ZBA was filed 16 days after his order, which is outside the 15-day window of appeal. Harris further told the board that the applicant had not demonstrated that these uses had been legally established and that any non-conforming use had long been abandoned.
In the lawsuit filed on Dec. 16, Bellis asked the court to overturn the ZBA decision, writing, “There was not substantial evidence in the record to support the stated reasons for the denial of the application by the defendant” and “The regulations of the ZBA regarding abandonment of a non-conforming use are illegal in that they establish timeframes and other improper standards which have no bearing on the penultimate issue of the owner’s intent.”
At its Sept. 8 meeting, the ZBA unanimously supported a decision by Harris to revoke a Certificate of Zoning Compliance (CZC) to allow a “limited processing recycling facility.”
Harris issued the CZC on May 22, 2015 and then revoked it on July 14, 2015, when he learned that the DEEP had revoked Recycling Inc.’s permit to construct a volume reduction facility on the property.
Recycling Inc. filed a lawsuit on Sept. 30 in Superior Court, seeking to overturn the ZBA decision on that permit revocation.
The CZC would have allowed the company to “receive, store, and process only recyclable materials in accordance with the limits of the DEEP permit” of Aug. 16, 2010 that was revoked on Feb. 5, 2015.
DEEP Decision Appealed
Recycling Inc. appealed the DEEP permit revocation on March 20, 2015. A hearing is scheduled on this appeal in New Britain Superior Court on Jan. 7, 2016.
In the appeal, Recycling Inc. Attorney Alan M. Kosloff challenged the DEEP decision on numerous procedural matters, stating, “Each substantive finding of fact in this proceeding was reached utilizing the wrong standard of review; a significant number of the key findings are also based on an erroneous standard of proof, and misassignment of the burden of proof.”
DEEP Commissioner Robert Klee submitted a brief on Nov. 9 defending the Feb, 5, 2015 decision rendered by Susan K. Whalen, DEEP deputy commissioner.
In turn, Whalen supported a decision by Janice Deshais, hearing officer for the DEEP, who conducted a hearing in 2014, and issued a 45-page finding on Aug. 25, 2014, in which she recommended the DEEP revoke the permit for Recycling Inc. because the application did not identify Curcio as being associated with the company. DEEP regulations require that officers and stockholders be listed on a permit application.
In his decision, Klee described Chapdelaine as the “purported owner” of Recycling Inc., noting that in April 2012, Gus Curcio Sr. had filed a lawsuit against Chapdelaine asserting his ownership of the company, which was affirmed by the court on Oct. 23, 2012.
Klee said the DEEP made its decision based on the fact that Recycling Inc. “provided false, incomplete and incorrect information in its applications,” and that it “demonstrated a pattern and practice of unwillingness or inability to achieve and maintain compliance.”
Among these issues, Klee wrote that the company “failed to disclose Gus Curcio Sr.’s role in the daily operations of the company.” Klee also said there was “the notarized document in Gus Curcio Sr.’s possession that avers that Chapdelaine was the owner of RCI in name only.” Klee said there was “the tangled web of undisclosed financial arrangements all tied to assets controlled by Gus Curcio Sr.”
The DEEP had concerns about Curcio’s involvement with the company, in part due to enforcement action it took against him and his son Gus Curcio Jr. for operating a waste processing facility at 990 Naugatuck Avenue in 2007 without a permit.
The city of Milford is an intervenor in the case, and supports the decision by the DEEP to deny the permit.
In its brief, Attorneys David A. Slossberg and Amy E. Souchuns wrote, “RCI’s lack of truth and candor jeopardizes the regulatory framework established by state statutes and implemented by the DEEP. IF RCI cannot be truthful in its application, there can be no question that it was not truthful in the operations it did not control and will not be truthful in any expanded operation.”
City Inland-Wetlands Officer issued a permit extension to Recycling Inc. for its permit to operate within 100 feet of the Housatonic River. The original permit was issued April 7, 2010, and expired April 7, 2015. The extension moves the expiration date to April 7, 2019.
The Dec. 16 court documents may be read at http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=AANCV166019888S.
The Oct. 27 court documents may be read at http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=AANCV156019430S.
The documents for the DEEP case may be read at http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=HHBCV156028562S.