Government

Fight Between Somers Landscaper, Neighbors in ZBA's Court

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Residents near Whispering Pine Landscape Supply Yard say the business is ruining their quality of life. Credits: Jodi Weinberger
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Some residents say their homes shake from the impact of rock crushing and jackhammering at Whispering Pine Landscape. Credits: Jodi Weinberger
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SOMERS, N.Y.-On Tuesday, March 20, the Somers Zoning Board of Appeals will continue a hearing on a years-long fight between Whispering Pine Landscape Supply Co. and residents in Somers, Mahopac and Yorktown who say the loud, intrusive activities at the business are ruining their lives and neighborhoods.

Whispering Pine Landscape, at 1 Windsor Road, Yorktown Heights, sits at the intersection of Mahopac, Yorktown and Somers and has drawn vitriol from residents in all three towns.

About 18 years ago, the Whispering Pine business—owned by the Kuck family since 1956—split into two entities: Whispering Pine Garden Center and Florist, owned by Kathleen Kuck, and Whispering Pine Landscape Supply Co., owned by her cousin, Thomas Kuck. Although the businesses are on the same property, they operate independently and residents’ complaints are directed solely at the landscaping business.

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Both Thomas Kuck and his attorney, Linda Whitehead of McCullough, Goldberger & Staudt, declined to discuss the complaints against the business. Gerald Reilly, the attorney for the town of Somers and the Somers Zoning Board of Appeals (ZBA), also declined to comment, as did all members of the ZBA.

In 2016, Somers residents Anthony and Catherine Porco of Brianna Lane sued Whispering Pine Landscape and the town of Somers over the noise emanating from such activities as rock crushing, tub grinding and jackhammering, along with the movement of big stones and trucks on the property.

Porco, a captain in the Yonkers Fire Department, works nights and the constant loud noises coming from the business prevent him from sleeping during the day, thereby affecting his work and home life.

“I go to work; pay my taxes on time. I work nights and weekends, so I try to be home days so I can get my kids on the bus. I come home at 8:30 a.m. and the noise is so loud…It’s like living next to an IndyCar racetrack at times, the noise is so unbearable,” Porco said.

He had a noise expert at his house who said the noise coming from the landscaping business is nearly 80 decibels when measured inside his home. In comparison, a garbage disposal is about 80 decibels, a passing diesel truck is about 85 decibels and a lawn mower is about 90 decibels.

As Dr. Mehrdad Alaie, another resident of Brianna Lane and an emergency medical doctor at St. Barnabas Hospital who works nights, put it, “I lived in Iran. We were bombed during the ’80s. The noise coming from Whispering Pine is” louder.

Alaie lives with his elderly parents, who moved in last year to help take care of his 6-year-old daughter after his wife died. He said the noise is affecting his family “in a very tragic way.”

“To me and my family, it’s more than the lawsuit; it’s about the inhumane way and how these people–I can’t even believe they call it Whispering Pine. There is no whispering,” said Alaie, who recorded the noise. “If you listen to this audio and you’re not convinced, I’ll give you my two kidneys. These guys should be stopped. These people have to be exposed.”

Linda Calimeri of Carey Street, Mahopac, has lived next to Whispering Pine Landscape for 44 years and saw it turn from a local nursery beloved by the community to a neighborhood nuisance when the landscaping business split from the garden center.

“It’s disturbing the peace,” Calimeri said.

She hears the loud noises coming from the property first thing in the morning inside her bedroom and when she gets home from work. Plus, she can no longer see the sunrise from her house because the mounds of dirt on the property block her view.

“They started piling dirt and dirt and dirt, and you hear the machines, the backhoes and things like that. That’s not too bad, but now over the past four or five years, you hear the jackhammering and the machines and it’s loud and echoes throughout the woods,” Calimeri said. “The smell of whatever they’re making there, and whatever flies around in the air, you have stuff flying around, we’re not that far away from there…and they’re getting closer and closer.”

The lawsuit brought by the Porcos against the business and the town of Somers focused on an agreement between the town and Whispering Pine Landscape on when the company could run operations such as rock crushing and jackhammering; and the noise that emanates from the property, which the Porcos claim constitutes a nuisance.

On June 16, 2017, Westchester County Supreme Court Judge Joan Lefkowitz dismissed the complaint against the town, kicking it back to the Somers Zoning Board of Appeals; the claim that activities at Whispering Pine Landscape constitute a nuisance is still pending in court.

In February, the Zoning Board of Appeals held a jurisdictional hearing on the Porcos’ complaint, considering whether it should be before the board. The hearing was continued to Tuesday, March 20.

At the first hearing, the Porcos’ attorney, Michael Caruso, asked Reilly to recuse himself from the proceedings because he negotiated the agreement in question between Thomas Kuck and the town. Reilly has not done so.

The agreement was negotiated between Somers and Thomas Kuck as part of a settlement after the town issued summonses to Whispering Pine Landscapes in response to noise complaints in 2013.

However, residents say they were never told about the settlement and believe it runs afoul of the Somers master plan.

The settlement specified where and when Whispering Pine could continue its rock crushing and tub grinding operations. It restricted those activities to between 8 a.m. and 4 p.m. from Feb. 1 to June 30 and Sept. 1 to Dec. 15 annually–a total of 26 weeks per year.

The agreement was signed on March 7, 2014, by Reilly and Thomas Kuck and approved by Judge Denis J. Timone of the Westchester County Justice Court.

But according to the Porcos’ 2016 lawsuit, Thomas Kuck had not obeyed the terms of the agreement and continued to “violate its terms and restrictions; specifically the days and hours of operation and certain activities.”

The residents say that if Whispering Pine Landscape is allowed to continue, properties surrounding the business will lose value as the result of the noise and air pollution and negative aesthetic intrusions “on an otherwise pastoral setting,” the suit said.

Whispering Pine Landscape violates property owners’ rights to a clean and healthful environment, the suit contended.

The suit further said that the way in which the settlement was negotiated–without a public hearing–was “done in an attempt to avoid the rigors of Town Law…requiring a public hearing before amending zoning regulations, restrictions and boundaries and requiring a simple majority vote of the Town Board to otherwise effectuate such changes.”

“Plaintiffs, as interested members of the public and immediate neighbors of (the property), were unlawfully denied an opportunity to be heard on the changes of use and rezoning effectuated by the order [settlement],” the suit reads. “The order and its terms were never properly presented to the interested public such that they could be the subjects of a written protest in violation of town law.”

“It’s affected my health, my relationship with my kids and wife…it’s insane that they would allow this to go on,” Anthony Porco said.

Camille Lucia of Rosemary Court, Somers, said Whispering Pine Landscape is right behind the Stone Ridge Community where she lives.

“Whatever they are doing should not be allowed to be done so close to where we live,” Lucia said. “It is constant, very loud, obtrusive noise from early in the morning until night. Awful smells and dust most days of the week all months of the year.”

Alice and Gil Seda of Carey Street, Mahopac, said their home shakes from the activities at the landscape business.

“I don’t work. I’m home. It makes it hard for me to go outside because of the noise and the dust,” Gil Seda said. “I used to do gardening in the back. I had to stop because of all this dust.”

Alice Seda chimed in, “It’s sad.”

“We used to have deer come through here; it doesn’t happen anymore,” Alice Seda said. “When you look up, they have these piles that block the sunlight. It was such a beauty when I moved here 18 years ago and that is all gone.”

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