Hrazanek/VW Parts v. NYC DEP Stipulation of Settlement

7/28/2019 Hrazanek/VW Parts v. NYC DEP Stipulation of Settlement

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SUPREME COURT OF THE STATE OF NnW YORKCOU1\TTY OF DELAWARE------------------------------------------------------------------------xV.W. PARTS, INC.,

Plaintiff, STIPULATION OFSETTLEMENT ANDORDER-against-

THE CITY OF NEW YORK AND NEW YORK CITY INDEX NO. 2002-328DEPARTMENT OF ENVIRONMENTAL PROTECTIONDefendants,

----------------------------------------------------------------------xWHEREAS:

A. PlaintiffV.W. Parts, Inc. brought this action for money damages pursuantto the New York State Public Health Law 1105 and inverse condemnation regarding the use ofplaintiffs property, located within the New York Ci ty watershed, for a junkyard. Plaintiffsproperty is located at 1 Depot Street Fleischmanns, New York (the "Property"); and

B. Because of the Property 's location within an a rea that contributes surfacewater to the New York Ci ty water supply, ajunkyard within a certain limiting distance from awatercourse is subject to the New York City Rules and Regulations for the Protection fromComamination, Degradation and Pollution of the New York City Water Supply, 10 New YorkCodes, Rules and Regulations ("NYCRR") Part 128; 15 Rules of the City of New York("RCNY") Chapter 18 ("Watershed Regulations") which are enforced by defendant New YorkCity Department of Environmental Protection (NYCDEP); and

C. Plaintiff brought this action against defendant City of New York (the"City") and NYCDEP after NYCDEP denied plaintiffs variance application to locate ajunkyardinside a warehouse located on a portion of the Property. Plaintif f sought a variance because


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NYCDEP determined that the warehouse was located within 250 feet of awatercourse (the "Warehouse Area"). The Watershed Regulations (Section 18-41(a)) prohibitsiting ajunkyard within 250 feet ofwatercourse; and

D. NYCDEP has inspected the Warehouse Area, most recently on October19, 2005, and determined that the work in the Warehouse Area does not constitute a junkyard. Inaddition, :t\TYCDEP observed that the areas adjacent to the Warehouse Area within the 250 footlimiting distance are not being used for junkyard operations and were well maintained; and

E Plaintiff, by its representative William Hrazanek, President ofV.W. PartsInc., has indicated to :t\TYCDEP that plaintiff's intended and future use of the Warehouse Area isfor vehicle repair and/or storage and has agreed to use the Warehouse Area in a mannerconsistent with its current use in accordance with this Stipulation; and

F. Plaintiffhas agreed that NYCDEP may inspect the areas of the Propertywithin 250 feet of a watercourse, including the Warehousc Area, as part of the settlement of theinstant litigation and in accordance with this StipUlation; and

NOW THEREFORE, upon the stipUlation ofthe Parties and for good causeshown, it is hereby ordered, adjudged, and decreed as follows:

l. Each ofthe undersigned representatives of theParties to this Stipulation ofSettlement a..'1d Order (the "Stipulation and Order") certifies that heor she is fully authorized by the Party whom he or she represents to enter into the tenns andconditions of, and to execute, StipUlation and Order and to bind the Parties legally.

2. Plaintiff will continue to use the WarehouseArea, and other areas outside the Warehouse Area located within a 250 feet limiting distance of awatercourse, for purposes other than a junkyard as defined in Section 18-41 (a) of the WatershedRegulations. Plaintiffs use of this area will not be considered ajunkyard so as:


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(a) The vehicles in the Warehouse Area will be in substantially similar condition as thevehicles depicted in the annexed photographs taken by NYCDEP during its October 19,2005inspection including, but not limited to, vehicles that are recent models in, or capable ofbeingrepaired to, condition for use on public highways (See photographs annexed hereto as Exhibit"A"); and

(b) no vehicle fluids will be drained from vehicles on the Property or stored on theProperty including, bUl not limited to, transmission fluid, brake fluid and anti-freeze; and

(c) vehicles in the limiting distance of a watercourse will not contain any vehicle fluids;and

(d) no storm drains or floor drains will be installed in the Warehouse Area; and(e) a concrete floor will be maintained in the Warehouse Area; and(e) no junk vehicles, as defined in the Watershed Regulations shall be stored in any

outdoor area located within a 250 foot limiting distance from a watercourse or wetland on theProperty.

3. Inspection of the Warehouse Area: Plaintiff acknowledges that it will grantNYCDEP full access to the Warehouse Area on one (1) occasion per year for each year thatplaintiff owns the Property, for the sole and specific purpose of confirming compliance with thisStipUlation. This annual inspection shall occur upon fifteen (I5) calendar days wrilten notice tothe plaintiff, by overnight mail or facsimile transmission from NYCDEP. The notice shall statethe date and time of the NYCDEP inspection and shall be delivered to the address or facsimiletransmission number below (the "Notice of Inspection"). NYCDEP shall be permitted tophotograph andlor videotape the interior rooms of the Warehouse Area and be allowed to viewand examine the contents of the Warehouse Area in its entirety, including all manifests and logs


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maintained by Plaintiff pursuant to local, state or federal law, for so long as is reasonable forsuch inspection. The Parties mutually agree that the inspection may occur on a da y other thanspecified in the NYCDEP Notice of Inspection upon good cause shown that such date is notmutually acceptable but in no case may the inspection be adjourned more than 72 hours beyondthe Notice ofInspection date.

4. Communications: all written communications required by this Stipulation andOrder shall be transmitted by mail, by private courier, by hand delivery or by fax followed bydelivery by mail, unless another means of transmission is specified herein, to the followingaddresses:

For V.W. Parts, Inc.:Peter J. HickeyAttorney for V. W. Parts, Inc.210 Great Oaks BoulevardAlbany, N.Y. 12203(518) 456-6456 (telephone)(518) 456-6056 (facsimile)

For the City:New York City Department of Environmental ProtectionWest of Hudson Engineering and Project ReviewAttn: Brenda Drake918 Ulster AvenueKingston, N.Y. 12401(845) 340-7633 (telephone)(845) 340-8657 (facsimile)

5. .00ad Faith Effort: The Parties acknowledge that each other will proceedin good faith and cooperation in the execution of this StipUlation and Order and will take allreasonable efforts to effectuate the tern1S and understandings contained herein.

6. Future Disputes: The Parties acknowledge that each will make good faithefforts to resolve future disputes. Prior to the issuance of a Notice of Violation in the event that

VIO! of the Watershed iJlions occurs on the Property, "J'r'CDFP


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7. Modification: No change in this Stipulation and Order shall be made orbecome effective except as set forth by a written order of this Court or by written agreement ofthe Parties.

8. Binding Effect: This Stipulation and Order shall apply to and be bindingupon the Parties, and upon their respective agents, successors and assigns.

9. Resolution of this Litigation. Based upon all of the foregoing, and inreliance upon the mutual representations and promises contained herein, plaintiff herebywithdraws all claims in this action and terminates the action against the City in accordance withthis Stipulation of Settlement and Order, with prejudice and without costs.

Dated: Z/zl PETER]. HICKEYZ Attorney for PlaintiffV.W. Parts, Inc.210 Great Oaks BoulevardAlbany, New Yo 03( 518) 45 -'-'-..-.-""

William HrazanekPresident, V.W. P

MICHAEL A. CARDOZOCorporation Counsel of the City of New YorkAttorney for Plaintiff71 Smith Avenue

Dated: YJ.A.,ck ( _ , 1/j/

ew York 124013.61

Lmda A. Geary \Assistant Corporation Counsel


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Hrazanek/VW Parts v. NYC DEP Stipulation of Settlement

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