Agenda - Planning Commission - 06/02/2011

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April 25, 2011 1 Volume 5 J No. 8 Zoning Bulletin The Background/Facts: New York & Atlantic Railway Company ("NYAR") was a short -line railroad that ran the freight operation of the Long Island Rail Road ("LIRR"). In 2002, Coastal Distribu- tion, LLC ("Coastal") and NYAR entered into an agreement to re- furbish a rail yard in the Town of Babylon (the "Town") to handle the transloading of construction materials, mainly building materi- als and construction and demolition debris (the "Facility"). The Town's zoning ordinance (the "Ordinance") forbids the op- eration of a waste transfer facility anywhere in the Town except for an area remote from the Facility and inaccessible by rail. As work on the new Facility neared completion, a Town build- ing inspector served Coastal with a stop work order. The inspec- tor had determined that the Facility violated the Ordinance. Coastal appealed to the Town's Zoning Appeals Board (the "ZBA"). The ZBA upheld the stop work order, finding the Facility constituted an impermissible use. NYAR and Coastal then sued in federal district court. They asked the court to enjoin the stop work order. They argued that: the Town's zoning Ordinance was pre-empted under the Interstate Commerce Commission Termination Act of 1995 ("ICCTA"); and that the Facility fell within the exclusive jurisdiction of the STB. The court issued a preliminary injunction barring the Town from enforcing the stop work order. The United States Court of Appeals, Second Circuit, upheld the injunction but allowed the parties to bring the matter to the STB for a determination as to whether the Facility did, in fact, fall within its exclusive jurisdiction. The Town and the lessor of the rail yard, Pinelawn Cemetery Corporation, (hereinafter, collectively, the "Town") asked the STB to declare that: the Town's zoning Ordinance was not pre-empted; and that STB did not have jurisdiction over the Facility. The STB did so declare. The STB found that its exclusive jurisdiction "ex- tends to the rail -related activities that take place at transloading fa- cilities if the activities are performed by a rail carrier or the rail car- rier holds out its own service through the third -party as an agent or exerts control over the third-party's operation." Here, the STB de- termined that NYAR was not involved with Facility and that Coast- al "exercised almost total control over the [F]acility." Thereafter, the Town asked the district court to vacate the pre- liminary injunction. NYAR and Coastal objected. Among other things, they argued that the "newly passed Clean Railroads Act of 2008 (the "CRA"), 49 U.S.C. S 10909, preempted [the Town's Or- dinance]." The CRA "requires that solid waste rail transfer facilities follow the same state and federal laws and regulations that apply to 4 © 2011 Thomson Reuters