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Two Lawsuits Pending in Rockland County Supreme Court Challenge North River Shipyard’s Ongoing Operations; Shipyard Files For Mooring Permit Seven Years After Installation
The Legal Beat
The unresolved protracted battle between waterfront residents in Upper Nyack and North River Shipyard and Van Houten Holding Corporation, the owner and operator of North River, took another sharp legal turn this month.
After an exchange of angry letters earlier this summer between counsel for each group, a new lawsuit was filed on September 14 in Rockland County Supreme Court by the Friends of Upper Nyack Waterfront, an unincorporated association of affected neighbors, through its president, Upper Nyack resident Adam Budgor.
In correspondence from Friends’ counsel to the Shipyard in August, a demand was made by the Friends for the removal of what it terms “illegal” moorings, placed in navigable waters owned by New York State without permits from the Army Corp of Engineers. The Friends say that the moorings are dangerous to navigation and interfere with their views from their homes.
The Shipyard’s counsel, John Henry from Albany-based Whiteman, Osterman and Hanna, responded that the mooring “use” was consistent with relevant laws, rules and/or regulations.
Friends’ counsel filed a lawsuit against K. Graefe & Sons Corp., d/b/a North River Shipyard and Van Houten Holding Corporation, claiming that the commercial moorings were installed without permits from the US Army Corp of Engineers, that they are illegal, a danger to small craft, and public and private nuisance. The Friends allege that Graefe moors large commercial barges to the moorings, and that they sometimes sit moored for more than a month at a time.
In 2016, North River reached out to the US Army Corp. of Engineers regarding temporary moorings and was informed that “[t]emporarily mooring a barge in a designated mooring area does not require a permit from the Corps of Engineers.” Some seven years later, the moorings are still in place. After receiving a notice from the USACE in April of 2022, North River informed the USACE of the mis-information it received in 2016, and on Sept 27, the USACE put out a Public Notice detailing North River’s application for a permit.
The application asks for an “after-the-fact Department of the Army authorization to maintain as completed, the installation of three (3) mooring buoys in the Hudson River, in the Town of Clarkstown, Rockland County, New York… for the purpose of allowing large vessels to be held offshore for loading, awaiting repairs or transit.”
Public comments are open until October 27 and if no comments are received, the USACE will assume that there are no objections to the application. All comments and questions concerning the application should be directed to Brian.A.Orzel@usace.army.mil. The Notice Number is: AN-2022-00385-WRY.
The Friends have asked for a declaratory judgment authorizing their removal, and a permanent injunction against their use. The Friends are also suing for damages, costs and attorney’s fees, and have asked the court to set a hearing on their claims.
The Shipyard has yet to answer the complaint, with service only having been perfected on Graefe on September 19.
While the neighbors have taken it upon themselves to restrain the shipyard, the Village of Upper Nyack and the shipyard remain embroiled in ongoing litigation over whether the shipyard is obligated to apply for a special permit under changes in the law in 2022 to continue its operations.
Village of Upper Nyack
In a related case, also pending in Rockland County Supreme Court before Justice Amy Puerto, are competing motions for summary judgment between the Village and the Shipyard. The thrust of that case is whether or not the Special Permits issued to the shipyard back in 2010 and 2015 allow it to continue operating without having to reapply for a new permit under revisions to the Village of Upper Nyack Code.
In 2022, the Village passed a Local Law stating that all Special Permits expire five years after their issuance or renewal, or by May of 2022. The shipyard, in a nutshell, challenged that law as interfering with its investment and vested rights to use the property as the earlier Special Permit allowed, saying that the sunset of its existing Special Permit is illegal.
The Village disagrees, views its 2022 law as valid, and has requested the shipyard re-apply for a Special Permit with the Village Planning Department.
Also at issue is whether the shipyard has exceeded its permit by utilizing open-air spray painting and “boat-breaking” which is essentially the dismantling and salvage of water craft.
Relying on the pending litigation, the Shipyard has refused to engage with the Planning Board and file to have its permit renewed.
The “illegal” moorings complained of by the Friends of the Upper Nyack Waterfront are not part of the lawsuit between the shipyard and the Village of Upper Nyack.
Both sides, the Village and the Shipyard, have filed motions and memoranda of law in accordance with a schedule set up by Justice Puerto.