Notice of Appeal to Town of Romulus Zoning Board of Appeals
of Zoning Enforcement Officer Adam Schrader’s Interpretation Letters Regarding the
Proposed Circular enerG Incinerator
Feb. 1, 2018
To the Romulus Zoning Board of Appeals:
I am a resident of the Town of Romulus, living at 5915 East Lake Road. Circular enerG’s
proposed waste incinerator will impact my health and my neighborhood, as well as my property
values.
I am writing to appeal the interpretations of the Town Zoning Enforcement Officer (“ZEO”),
Adam Schrader, which were issued in response to inquiries from the proponents of a waste
incinerator to be built at the former site of the Seneca Army Depot.1
Specifically, I write to appeal
1) Schrader’s interpretation that the proposed waste incinerator, which would burn
trash to generate electricity, “would be classified under the Romulus Zoning Law as
‘Renewable Energy Production (Solar, Wind, Biomass, Geothermal, etc.) — Utility
scale,’” and
2) Schrader’s statement that the “Facility would not be prohibited under Article IV,
Section 4(A) of the Romulus Zoning Law as a ‘noxious or injurious’ use provided it
substantially complies with applicable environmental regulations.” 2
These interpretations are unreasonable and exceed the zoning officer’s authority.
The public first had notice of these interpretations when Circular enerG filed its Special Use
Permit Application with the Town Planning Board. The company mentioned the ZEO’s
interpretation letters in its presentation to the Town Planning Board on December 4, 2017.
Then, on December 7, 2017, the Special Use Permit Application was posted on the Town of
Romulus website.3 The letters were included as pages 640 and 641 of its permit application.

1

See Letter from Adam Schrader, Town of Romulus ZEO, to Earl Martin, Seneca Dairy Systems, & Michael Palumbo,
Flaum Management, Mar. 16, 2017 [hereinafter “Schrader Letter 1,” attached as Attachment 1]; Letter from
Schrader to Martin & Palumbo, Aug. 28, 2017 [hereinafter “Schrader Letter 2,” attached as Attachment 2].
2
Schrader Letter 1. Schrader’s second letter repeats these same interpretations. See Schrader Letter 2.
3
See Special Use Permit Application and Environmental Assessment, Circular enerG Facility, (dated Nov. 2017,
posted Dec. 7, 2017),
http://www.romulustown.com/pdfs/discussions/20171207115656~Final_Full_Permit_and_Assessment_for_Circul
ar_enerG_Facility.pdf [hereinafter “Special Use Permit App.”].

1

 Standing
As a neighbor who will be negatively impacted by this proposed incinerator, I am a “person
aggrieved” with standing to appeal the ZEO’s interpretations under N.Y. Town Law § 267-a(4).
My health will be impacted by the air pollution from this incinerator, which will emit lead,
mercury, dioxins, furans, acid gases and nitrogen oxides.4 My health and quality of life will be
affected by the greatly increased traffic in the area with 238 trucks per day entering and leaving
the facility. “The Project (trucks only and at full build out), is estimated to generate
approximately 176 waste hauling vehicles/day, 2 slaked lime trucks/day, 1 activated carbon
truck/day; 1 urea truck/day; 1 lubricating truck/day; 3 scrap ferrous metal trucks/day; 2 nonferrous metal trucks/day; and 52 ash or concrete sand trucks/day... This traffic would be limited
to state highways, either coming from the south on Routes 96 or 414, from the north, via the
New York State Thruway, on Routes 96, 96A or 414, or from the east and west on Route 5 (U.S.
20).” (See Special Use Permit, Page 29 and 31.) My property values are also likely to decline
because of undesirable air pollution and truck traffic from the facility, as well as the proposed
260-foot smoke stack, which will be visible at a great distance from the plant.
The ZEO’s Interpretations of the Zoning Code Are Unreasonable
First, I urge the Zoning Board of Appeals to overturn Schrader’s interpretation that the
proposed waste incinerator would be classified as “Renewable Energy Production” under
Romulus Zoning Law, and therefore eligible to apply for a Special Use Permit as an allowable
use in its zoning district. This interpretation is unreasonable because waste incineration is not a
renewable energy technology, a fact that has long been recognized by New York law.
In New York, waste-to-energy facilities are not considered “renewable.” Waste to energy
facilities are not considered renewable in the state’s Clean Energy Standard. 5 Prior to the
Clean Energy Standard, New York operated under the Renewable Portfolio Standard. When
Covanta Energy applied to have waste energy incinerators included as an eligible renewable
technology under NY State's Renewable Portfolio Standard, the NY Department of
Environmental Conservation (“NY DEC”) filed scathing comments against such a designation.6
The NY DEC's comments provide a detailed analysis of air emissions from ten existing trash
incinerators, and showed that they produced worse emissions than eight coal facilities in New
York (except for S02).7 In 2004, the NY Public Service Commission agreed with the NY DEC that
“waste-to-energy” facilities did not meet the criteria for eligible renewable resources under the
NY Renewable Portfolio Standard program.8 The basis for this determination was primarily the
NY Public Service Commission's concerns about air emissions from waste to energy facilities,
noting that there is “no dispute” that their “emissions of mercury and NOx exceed those of the
4

See Special Use Permit App. at 15.
See NY's Clean Energy Standard, August 1, 2016 PSC Order, Case No.s 15-E-0302 and 16-E- 0270 at 31, 105 and
Appendix A.
6
See NYDEC August 19, 2011 comments in Case No. 03-E-0188.
7
Id. at 6-7.
8
September 24, 2004 Order, Regarding Retail Renewable Portfolio Standard, Case No. 03-E-0188 at 8, 37, and 39.
5

2

 dirtiest coal-type fossil fuel generation facilities.”9 The ZEO’s zoning code interpretation goes
against this long-standing precedent, and therefore it is unreasonable and should be
overturned.
Second, the Zoning Board of Appeals should overturn the ZEO’s statement that the waste
incinerator would not be prohibited as a ‘noxious or injurious use’ under Article IV, Section 4(A)
of the Romulus Zoning Law as long as it “substantially complies with applicable environmental
regulations.”10 This interpretation is unreasonable because it renders Section 4(A) meaningless.
Section 4(A) prohibits “[a]ll uses that may be noxious or injurious by reason of the production
or emission of dust, smoke, odor, noise, gas fumes, glare, vibration, or because of danger to the
general public due to hazards of fire or explosion.” The ZEO’s interpretation would mean that
this section prohibits only uses that are already prohibited by other local, state, or federal
environmental laws and regulations, and only to the extent that the impacts exceed those
regulations. But the provision clearly prohibits uses and impacts that would not be addressed
by those other laws, such as noise, glare, and vibration, as well as dangers to the general public
due to hazards of fire and explosion. The ZEO’s interpretation is unreasonable because it
renders Section 4(A) meaningless and would allow these uses that the Zoning Law plainly
restricts.
Further, it was unreasonable for the ZEO to apply this interpretation to the proposed
incinerator without first seeing detailed plans and studies of the incinerator’s proposed impacts
and emissions. Even if the proposed incinerator operates within the limits of future
environmental permits, it still likely to be “noxious or injurious” as defined by the Town of
Romulus because of its likely “emission of dust [particulate matter], . . . odor, [and] noise.”
Romulus Zoning Law, Section 4(A). In addition, it will have an inherent risk of fire and explosion
because it is a combustion facility.11 Without knowing the details of Circular enerG’s plant,
Schrader could not reasonably determine whether or not it would fall within Section 4(A)’s
prohibitions.
The Interpretations Exceed the Zoning Officer’s Authority
The ZEO did not have authority to give these interpretations of the Zoning Code, which were
made as advisory opinions about a specific proposed facility but without any details regarding
the proposed facility and well in advance of Circular enerG’s Special Use Permit Application. The
Zoning Enforcement Officer position is created under Town law with the following duties: 1)
approve, disapprove, or revoke zoning permits or certificates of occupancy; 2) interpret the
9

Id. at 39.
Schrader Letter 1.
11
Incidents of fires and explosions at other waste incinerators are well documented. See, e.g., Bill Smith, Lee
County Trash Plant Fire Stinks Up Buckingham, News-Press.com (Fort Myers, Fla.) (Dec. 23, 2017),
https://www.news-press.com/story/news/local/2017/12/23/firefighters-contain-blaze-lee-county-trashfacility/979357001/ (fire at trash plant in Lee County, Florida); Chris Gordon & Daniel Barnes, Trash Fire Finally
Extinguished at Garbage Disposal Plant in Lorton, NBC Washington (Feb. 6, 2017)
https://www.nbcwashington.com/news/local/3-Stories-Worth-of-Trash-Still-Smoldering-at-Garbage-DisposalPlant-in-Virginia-412935593.html (fire at Covanta incinerator in Fairfax, Virginia);.
10

3

 zoning district boundaries on the zoning map; 3) refer appropriate matters to the Zoning Board
of Appeals, Planning Board, or Town Board; 4) notify temporary permit holders when their
permits will expire; 5) investigate complaints and violations, issue stop work orders and
appearance tickets, and refer violations to appropriate authorities; and 6) report to the Town
Board the number of permits and certificates of occupancy issued; Town of Romulus Zoning
Ordinance, Art. XII, Section 7(B). In other words, the Zoning Enforcement Officer has the power
to enforce the Zoning Code, but is not given the power to issue advisory opinions interpreting
key terms in the Zoning Code. Thus, these interpretations were outside Schrader’s authority
and should be overturned by the Zoning Board of Appeals.
This Appeal is Timely
I am filing this appeal within the 60 days allowed by Town Law 267-a(5). The Department of
State’s Manual for Zoning Appeals states: “If you are a ‘third party,’ such as a nearby resident,
you may still bring an appeal more than 60 days after the permit is filed, if you file within 60
days after you've had a reasonable opportunity to find out about the planned project.”12
The public first had reasonable opportunity to learn of the ZEO’s interpretations during Circular
enerG’s December 4th presentation before the Town Planning Board. Then, the public first had
opportunity to read the letters when the Special Use Application was posted to the town’s
website on December 7th.13 This appeal is filed within 60 days of both dates.14

12

N.Y.S. Div. of Local Govt. Servs., Guidelines for Applicants to the Zoning Board of Appeals 5 (2015),
https://www.dos.ny.gov/lg/publications/Guidelines_for_Applicants_to_the_Zoning_Board_of_Appeals.pdf. See
also, Alan S. Knauf, Interpretations by the Zoning Board of Appeals 3 (2014), http://www.nyenvlaw.com/wpcontent/uploads/2014/11/Zoning-Board-of-Appeals-Interpretations.pdf (“[C]ase law has long made it clear that the
time to appeal to the ZBA does not begin to run for a neighbor until he or she receives actual notice of the
decision.”) (citing Pansa v. Damiano, 14 N.Y.2d 356, 251 N.Y.S.2d 665 (1964)).
13
See Special Use Permit App., supra.
14
The process around this proposed incinerator and the interpretations has been highly irregular and secretive.
Although the applicant might argue that the public had notice of the interpretations because of a notice published
in the Ovid Gazette, on X date, these notices shield the zoning interpretations from the public eye rather than to
notify them. An email between Alan Knauf, lawyer for Circular enerG and Patrick Morell, the Town Attorney, states
that the notices of the interpretations should be published “so that no one can claim they did not know about it
and claim the 60 days for the appeal did not run” but that “we don’t want to give a lot of details.” Email dated April
21, 2017, 8:50 AM (received in response to a Freedom of Information Law Request by Mary Anne Kowalski).
And indeed the notice did not give many details. It merely stated that “the Town of Romulus Zoning Officer has
issued an interpretation, dated March 16, 2017, regarding the meaning of "renewable energy production" under
the Town of Romulus Zoning Law,” and that the interpretation was on file with the ZEO. Public Notice, Ovid
Gazette (May 10, 2017). It did not mention that the law had been interpreted to say that waste incineration was
renewable energy. It did not mention that it interpreted the term “noxious and injurious use” or its application to a
waste incineration plant. And it did not say that the interpretation was given in regards to a specific proposal of a
waste incineration plant at a specific site, the Seneca Army Depot, details of which were already known to the ZEO
and the Town’s attorney. In short, the notice was not reasonably crafted to give notice to Romulus residents about
the nature of the interpretation.

4

 In conclusion, I timely appeal the March 16, 2017 and August 28, 2017 interpretation letters
issued by the Zoning Enforcement Officer because they are unreasonable interpretations of the
Town of Romulus Zoning Code and because the ZEO had no authority to issue them. As a
remedy, the Zoning Board of Appeals should disavow the ZEO’s erroneous interpretations and
affirmatively state that these interpretations are invalid and inapplicable as to Circular enerG’s
proposed facility and other waste incineration facilities that may seek to locate in the Town of
Romulus.
Sincerely,

Alan Kiehle

5

 Town of Romulus
1435 Prospect Street
PJEI. Hon 
WIllard, New York. 14535
March m, 

i'u'lr. Earl Martin
Seneca Dairy Systems
3135 N. Hoster Road
Seneca Falls, MT 13143

Mr. Michael Palumbo
Flaum Management

I'l?Cl Ariel re w's St #5 DD
Rochester, N?r' 145E14-

Gentlemen:

?t'ou inquired whether a wasteato-energ'y facility {the ?Facility?l which, through combustion of
solld waste, would use the resulting heat from the combustion process to generate steam to powera
turbine to produce electric power, is an allowed use at the former Seneca Army Depot in the Town of
Rom ulus. The Facility would go ncrate slag, ash and ?ue gas, but would comply In all material respects
with applicable environmental regulations, including air pollution and solid waste management
sta rid ards enforced by the New "i'orls State Department of Enyiron mental Conse oration.

Please be advised that the Facility would be classified under Article Section 1 of the Town of
Romulus Eoning Law as ??Renewa ble Energy Production [Solar, Wlnd, Biomass, Geothermal, etc.) thllity
scale." The former Seneca Army Depot is located in the Tost Warehouse, Industrial, Transportation,
Energy District, the Facility would therefore be an allowed use if a special use permit was approved by
the Romulus Planning Board. Furthermore, the Facility would not be prohibited under Article 
Section 4th] of the Romulus Eoning Law as a "noxious or injurio us" use, proytded it substantially
compiles with ble enyironmEntal regulations.

This lnte retation may be appealed, within St) da ys of ?ling this letter with my office, to the
Town of Romulus Eoning Board of Appeals.

Yours truly,

?fe?eff

Adam rader
Town of Re mnlus Eonlng Ufficer

Attachment 1

Attachment 2

Town of Romulus
1435 Prospect Street
FLU. Bot-t 
Willard, New York 14533

August 23, Hill?

Mr. Earl Martin
Seneca Dairy Systems
3236 N. Hoster Road
Seneca Falls, NY 13148

Mr. Michael Palumbo
Flaum Management

4GB Andrews St 
Rochester, 1w 146ml-

Gentlemen:

This letter supplements my letter to you dated March 16, 201?, by which I Issued an
interpretation that a waste-to-e nergy facility {the "Facility"i, as described in that letter, would be
classified under Article W, Sectlon 1 ofthe Town of Ftomulus Eoning Lawr as "Renewable Enorgy
Production [Solar, Wind, Biomass, Geothermat, etc.} Utility scale.? I also stated that the Facility would
not be prohibited nder Article I'll". Section of the Romulus Zoning Law as a "noxious or injurious"
use, provided it substantially complies with applicable environmental regulations.

While my letter noted that the former Senbca Army Depot is located in the Tow n?s Warehouse,
Industrial, Transportation, Energy District, portions of the former Seneca Army Depot are located
in Industrialfwareheuse [lwi District. Forthe reasons set forth in my March IE, determination.
the Facility would be allowed at the former Seneca Army Depot in either the WITE District or the IW
District its special permit was approyed by the Ftomulus Planning Board. Further, in addition to
compliance with the applicable enylronmental regulations noted aboye, all uses within the ll.I'y'lTE and IW
Districts are subject to the Performance Standards contained in Article W, Section 3.

?r'ours truly,

?fM-

Adam Schrader
Town of Romulus Zoning Di?l?icer