Nine Tuckahoe residents have launched a lawsuit against the village and state departments responsible for approving a remediation of a toxic site to build a 5-story Marriott hotel.
The residents are suing to overturn several decisions which paved the way for a developer, Bilwin Development Affiliates LLC, to remove contaminants from a 3.5-acre portion of a former industrial dumping site on Marbledale Road and then build a 163-room Marriott Springhill Suites hotel and a 6,400-square-foot restaurant on the property.
The action names several agencies which have signed off on pieces of the development plan since it was first proposed in December 2014, including the New York state Department of Environmental Conservation, DEC, the state Department of Health, the village Planning Board and the village building inspector.
The lawsuit alleges that each of the agencies involved made premature decisions that led to site plan approval for the development.
The Planning Board approved the site plan by a vote of 3-2 on Oct. 19, a month after it adjourned its decision for up to 60 days citing an ongoing study of the plan. Meanwhile, the DEC was overseeing additional site testing by an environmental firm hired by the developer.
“Both [state] agencies are deciding first and getting the information later,” said David Gordon, an attorney who is representing the plaintiffs. “And in the case of the Planning Board, they’re deciding first and asking another agency to get the information later.”
On Sept. 15, 2015, the village Planning Board ruled that the developer would not have to submit an environmental impact study of the site as long as it complied with the DEC’s Brownfield Cleanup Program, a program which allows independent developers to remediate a contaminated property under the supervision of the DEC for the purpose of developing it. The lawsuit alleges that this action is illegal because the Planning Board passed responsibility off to another agency.The lawsuit also claims that the DEC and the state health department, in their approval of the developer’s plan to remediate the site, failed to adequately protect public health.
The DEC-approved remediation plan does not address the process of leveling soil, known as deep dynamic compaction, which can cause dust to migrate and which the developer may consider using.
“The DEC has decided to approve a remedy when they don’t know how the site is going to be prepared and you’re looking at options, all of which are intrusive in one way or another to a toxic waste site,” Gordon told the Review. “The fact that they don’t yet know what [the developer is] doing means that there’s no way a Decision Document [the DEC’s plan of action for the developer to remediate the property] can be upheld as complete and rational in protecting public health.”
But Linda Shaw, an attorney for Bilwin Affiliates, told the Review that dynamic compaction will not be used on the site. She added that, while the DEC plan does not scrutinize some details of the proposed remediation, the developer must also adhere to the DER-10, a set of overarching guidelines that the DEC employs on all remediation projects.
The residents are also taking legal exception to the scope of the project in relation to the overall size of the former 7-acre landfill; the approved remediation only pertains to the 3.5-acre center portion. The remainder of the site is being considered for a separate DEC-regulated program.
Hundreds of Tuckahoe residents and more than 1,000 participants from surrounding municipalities had spoken out against the plans to remediate the site since the DEC released a draft of the remediation plan back in April. A group of protestors called the Marbledale Road Environmental Coalition has protested several details of the plan, citing the proximity to the Waverly School in nearby Eastchester, concerns over remediation of the larger site, and fears of unearthing unforeseen toxins or disturbing drums full of contaminants, which had been reportedly dumped into the site when it was used as a landfill from the 1950s through the 1970s. Before that, the site had been excavated as a marble quarry.
