Residents and business owners are promising a lengthy legal battle if Hardscrabble Supply moves forward with its desire to use a rock crusher on its property.

But times have changed and technology has improved, according to Marcy Miller, a representative for Hardscrabble Supply and sister of Tim Butler, owner of the business, who is seeking to apply for a zoning amendment that would permit him to use a rock crusher on their property. 

Before entertaining the possibility of even discussing such a proposal, Supervisor Warren Lucas said at the Aug. 28 Town Board meeting that he would meet with town attorney Roland Baroni, who negotiated a stipulation agreement 10 years ago that prevented a former business from engaging in the practice. 

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Lucas’ response came after residents and business owners in the same neighborhood as Hardscrabble Supply promised a fight if the town moved forward with considering an amendment.  

Though no formal application has been submitted, attorneys representing surrounding businesses and homeowners came to the meeting to state their objections.

Butler sent a letter to the town in July asking about how to proceed with getting an amendment to the code to allow for bringing in a rock crusher after he purchased the business, formerly Clearwater Excavating Corp., in April. 

“While many facets of the Hardscrabble Supply business (110 Hardscrabble Road) are similar to the previous Clearwater operations, it is essential for some aspects of the new operation to vary due to basic economic principles,” Butler wrote in the letter. “As times change, it is important for any business to adapt to market conditions in order to remain viable and successful.”

Butler said there is demand for recycled and repurposed products, and Hardscrabble Supply could help fill that demand “if permitted to accept locally sourced materials that can then be crushed into usable construction and landscaping products and offered to customers in the surrounding area at a competitive price.”

Hardscrabble Supply is flanked by Hardscrabble Farms and Harvest Moon Farm and Orchard. Both businesses, along with Knights of Knee LLC, which owns the property for Harvest Moon, were represented at the meeting by co-counsel Richard Marin of Marin Goodman and Robert DiSciullo of DiSciullo and Eckhaus.

Attorney David Feureisen of Bartles and Feureisen, representing the Colley family, was also there to object, along with Hardscrabble Road resident Peter Bliss.

Gill Shott, who has a mortgage on the property, was represented by Don Rossi of Hogan and Rossi Law Firm. 

At the crux of the issue, according to the attorneys, is that rock crushing was prohibited 10 years ago under a stipulation agreement after a group of residents and business owners sued the town when it granted a zoning amendment to then-Clearwater Excavation in 2007.

Stipulation settlement

Ten years ago, a group called the Concerned Residents of North Salem and the Colley family (individually, and as executor of the estate of Charles Mandelstam and Riverkeeper Inc.) litigated this exact issue in the state Supreme Court of New York against Clearwater Excavating, Shott, the town and the town’s Planning Board.
 

Shott had filed applications for a conditional use permit, a wetlands permit and a site development plan approval. 

The town voted to rezone the three parcels of land on Hardscrabble Road owned by Shott from a residential district to a contractor’s business zoning district, prompting the group of residents and the Colley family to challenge the legality of that decision. 

The legal battle ended with a stipulation agreement which mandated the town to change the property back to an R-1 zone, but allowing for a contractor’s business and storage yard limited to the Clearwater property.

The stipulation allowed for processing of natural materials, including separating and screening of soils, stump and tree grinding.

But, according to the stipulation, processing “shall not include rock crushing or the manufacture of cement or ready-mix.”
With the stipulation agreement finalized, the Concerned Residents of North Salem and the Colley family withdrew its lawsuit. 

Going forward

The attorneys representing both sides, along with the business itself, acknowledged at the Town Board meeting that the current code does not allow rock crushing.

However, Miller, Butler’s sister, and Rossi, the attorney representing Shott, believe that the stipulation in 2008 doesn’t preclude the board from hearing the request from Hardscrabble Supply.

“The stipulation doesn’t bind the town to any future course of conduct,” Rossi said. “I think it would be a real stretch to think that the town would have bound itself to the particular zoning of this piece of property. There is nothing that would stop you from considering an application to amend the existing approvals.”

The other attorneys disagreed.

“The point is, the parties have been through this entire process already,” Feureisen said. “Mr. Colley has been through it, the town has been through it and the prior owner has been through it.”
 

Feureisen said he believes the parties are “contractually stopped” from moving forward.

“I just see a ton of legal problems if this application goes forward and my clients will vigorously oppose it,” Feureisen said. 

Further, Feureisen said he doesn’t believe Hardscrabble Supply could apply for a hardship component because the zoning law which prohibits rock crushing is public record “and certainly the land was purchased knowing that this is not a permissible use.”

Peter Bliss, a resident who said he’s lived on Hardscrabble Road for 45 years and was involved in the lawsuit with Clearwater, urged the Town Board not to hear Hardscrabble Supply’s request.

“Rock crushing was a huge reason that the plaintiffs (The Concerned Residents of North Salem and the Colley family) agreed to this stipulation and to just somehow say it doesn’t count, well maybe that’s the legal answer, but it just doesn’t make any sense,”

Bliss said. “I would say to you, in this whole process, instead of wasting your time going through it, you could just use the old phrase from television, ‘just say no.’” 

Miller addressed the board again at the end of the meeting saying that Hardscrabble Supply did not come with a lawyer because “the idea was to put the feelers out and gather information and decide what course to go.”

She argued that Hardscrabble Supply should be allowed to apply for an amendment and then work out with the town the days and times rock crushing could be permitted. She said the company is not looking to buy a rock crusher to have on site all the time, but rather rent one to bring in once in a while.

“When I grew up, what Outhouse Orchard did is not what Harvest Moon does today,” Miller said. “We all know things change and I think the advice and route Mr. Rossi was saying is, we understand we can’t, but that’s why we’re here to ask.”

Miller said Hardscrabble Supply would be willing to supply data as to the decibels of sound the rock crusher would generate and compare it to, for example, the music from Harvest Moon.

“We’re asking how to proceed now and maybe it’s in a neighborly way that we can do it at certain times,” Miller said. 
In an email following the meeting, Miller said Butler is a sixth generation resident of North Salem and wants to “respect the rural nature of the surrounding area.”

“Mr. Butler looks forward to providing the town with new information about how rock crushing equipment has been improved to address past misconceptions,” Miller wrote. “With good equipment, responsibly and conscientiously operated, Mr. Butler is confident that he will be able to provide a wide range of natural rock material that is increasingly in demand for projects that address improved water quality and mitigate the negative impacts of peak storm events.”