Close down the Island's largest private trash hauler, the lawyers say, and you can expect chaos - garbage piling up on Island streets and businesses toppling under the weight of so much rubbish.
That's the threat being raised this week by the trash hauling powerhouse, Browning Ferris Industries (BFI), which faces a court order to clear out of its truck depot and office space on Pacific avenue in Oak Bluffs by the end of July.
Their lawyers have written a 13-page motion, arguing that the judge erred in his ruling and pleading with the court to hold off, or stay, the order until it can be appealed. According to the motion, the summer rush has already begun, and there's no time to find a new home. "Shutting down BFI's operation in mid-summer will likely result in garbage piles on the streets and alleys, posing a potential health and safety threat as well as serious odor, nuisance and other aesthetic problems," the motion states.
Just over a month ago on May 1, Superior Court Judge Thayer Fremont-Smith issued a scathing ruling that defended the rights of a residential neighborhood to enjoy peace and quiet and gave BFI 90 days to vacate the Pacific avenue depot.
Residents of the working class neighborhood near the old school have complained for years about the noise, smell and traffic coming from the trash hauling operation. Four years ago, Raymond Moreis, a retired housepainter, and his neighbors filed a lawsuit against the town zoning board, which sanctioned the use of the property and the property's owner, Frank Fenner. From the start, neighbors argued that the town should never have allowed business in the area, which has been zoned residential since 1948.
Mr. Moreis said yesterday that he knew BFI and Mr. Fenner would appeal the ruling, but he said his lawyer is prepared to fight back with a counter motion. According to the Boston attorney representing BFI and Mr. Fenner, F. Henry Ellis 3rd, a hearing could take place within the next two weeks.
For BFI, the clock is ticking. Efforts to find an alternative site have failed, mostly due to the time pressure. That leaves BFI in the position of trying to convince a judge that to enforce the 90-day order would not only do Mr. Fenner "irreparable and serious harm," but also would hurt the residents and business owners of the Island.
"There is no other trash collection and disposal company capable of absorbing BFI's collection routes," the motion states.
And indeed, even one competitor agrees. Gregory Carroll, owner of Bruno's Roll-off Inc. of Edgartown said, "They've got a lot of equipment and control 80 to 90 per cent of the business. I could take care of some of their clients, not all. I wouldn't even welcome the challenge." According to an affidavit from BFI manager Kathy Benoit, BFI trucks make about 22,000 garbage pick-ups per month in the summer. That translates into more than 1,500 tons of trash hauled away each summer month by BFI trucks, according to the manager.
Business owners predicted their operations would fold quickly without rubbish collection, according to other affidavits cited in the motion.
"Lola's Restaurant in Oak Bluffs estimates it will have to close down within 48 hours after BFI stops operations," according to the motion. "[Lola's] employs approximately 60 people in the summer season [and] generates approximately $100,000 per week during summer. If the restaurant is forced to close, its employees will be out of work and its owner will be faced with financial ruin." Over at Cronig's Markets, owner Steve Bernier told lawyers in an affidavit that BFI's closure would also sink his grocery operation. Mr. Bernier said he could find no other Island trash hauler that could handle his two stores' waste stream in the summer.
When Judge Fremont-Smith ordered BFI to move out, his ruling considered none of these consequences. Instead, the judge focused on what he said amounted to decades of injustice. Showing little sympathy for either town agencies or land owner, he wrote: "The detrimental impact upon the residential neighborhood which had at first been relatively small, grew incrementally over the years. The smell of garbage, the fumes from motor vehicles and traffic impact were at first minimal, increased under [Everett] Rogers, and greatly increased after the site was sold to Fenner in 1993 and was leased to BFI for use as a rubbish transfer station."
In chronicling the growing use of the site since the 1950s, the judge rebuked the town for permitting the illegal activity and implied that cronyism in town politics played a role. It was the late Everett Rogers, a selectman from 1952 to 1972, who bought one parcel of the property in 1958 from the town and proceeded to operate a trucking business there "without any permit," according to the judge. Mr. Rogers then bought an adjacent lot from the town in 1979, paved it and stored trucks there, again with no permit, the judge found.
Shortly after Mr. Rogers died in 1989, his nephew, Richard Mavro, was appointed building inspector. That same year, Mr. Fenner purchased the land from Mr. Rogers' estate. On July 6, 1989, Mr. Mavro issued Mr. Fenner a permit to build a commercial building on the site.
Judge Thayer-Smith took aim at how these events unfolded, writing: "Not only are the 1989 permits in clear contradiction of the zoning ordinance, insofar as they purported to permit a commercial use in a residential zone in the guise of a building permit, but are also of questionable legality in view of the personally conflicted position of the building inspector."
Challenging the judge's reasoning and ruling, the lawyer for BFI and Mr. Fenner argued in his motion this week that the judge overstepped his bounds. "The Court erred when it concluded that BFI operates a 'transfer station' at the site. . . . [T]he trial transcript will clearly indicate that BFI does not use the property as a transfer station and therefore the Superior Court ruling is flawed."
The motion also argues that neighbors waited too long to challenge a town ZBA decision that upheld BFI's right to commercial use of the property. Mr. Moreis' lawsuit came seven years after Mr. Fenner received his last permit allowing use of the property. State law mandates that challenges to a decision are valid within six years of an alleged violation.
"The Court misconstrues the purpose of the statute of limitations," according to the motion, which is clearly trying to lay the groundwork for an appeal. An appeal could take another three years in court, and BFI wants to hold its ground during the appeal.
According to the motion, the trash hauler has tried unsuccessfully to find another space on the Island in time for a July 31 relocation. BFI was looking into leasing space at the airport, but negotiations are protracted. And efforts to buy land would take at least a year "before a successful purchase and sale can be negotiated given the complicated zoning and environmental permitting issues that must first be addressed before BFI could possibly begin operations."
Working in BFI's favor could be the fact that Judge Fremont-Smith is retiring within the next week. Motions for a stay of judgment are usually heard by the judge who issued the ruling, but in this case the lawyers for BFI can hope to get a more sympathetic judge in the next round of litigation.