Village to ICE: ‘Project is not viable’

The Village of Chester responded to last month’s Department of Homeland Security/ICE Notice of Activity with a 59-page document consisting of a letter from Mayor John Bell followed by various exhibits outlining why the village believes ICE is precluded from opening a processing facility at the site of the former Pep Boys warehouse located at 29 Elizabeth Drive.

The Jan. 16 document, which can be viewed in full on the village website, details concerns the village has pertaining to sewer capacity, restrictive covenant, zoning and a local residency law.

Village Clerk/Treasurer Angela O’Neill said the village had not received a response from the federal government as of Feb. 4. The mayor was not available for comment.

Sewer capacity

According to the village, Chester does not have any sewer capacity available for any new development or expansion on an existing project site. As part of the Moodna Sewer District, whose sewer capacity is governed by Orange County, the village says it has been restricted from utilizing any additional sewer capacity for years.

“The ICE proposal would increase the number of people currently accommodated for sewer capacity at the project site from approximately 150 people to 1,500 people (a 1,000 percent increase),” reads a portion of the document signed by Mayor Bell. “There is no dispute that the project, as proposed, would require a substantial increase in sewer capacity that is not currently available in the Village of Chester. Accordingly, for this reason alone, the project is not sustainable or permitted in the Village of Chester. While plans are in place to expand the Harriman Wastewater Treatment Plant, such additional sewer capacity is years away. We also note that this restriction is not a local zoning restriction, but the long-standing unavailability of sewer capacity, which remains a crisis in Orange County, in general.”

Bell added that sewer concerns are exacerbated due to the site being in a floodplain/wetland area, which was acknowledged in the Jan. 8 Notice of Activity on the Department of Homeland Security’s website.

Restrictive covenant

According to Bell, the site is subject to a Declaration of Restrictive Covenants – meaning, among other things, that uses on the site are limited to office, commercial or industrial research and developmental use. The restrictive covenant prohibits residential uses as well as any use that “unreasonably interferes with other property owners or which is a nuisance, among other prohibited uses.” In addition, according to Bell, the restrictive covenant provides that each lot owner agrees not to take or permit any action that would damage, delay or interfere with work performed or to be performed by other people in or around the park.

Village zoning

The site is an industrial park that is zoned in village’s M-1 District, which does not permit any residential use.

“The M-1 District does not permit any residential uses as of right or by special permit and such use is wholly prohibited and inconsistent with the permitted uses,” Bell wrote.

Temporary residency of vulnerable persons law

In 2023, the village enacted a local law requiring a special permit and a public hearing process along with other statutory requirements for uses that involve temporary residency of vulnerable people. There are various requirements for this type of use and a public hearing is required prior to the issuance of the special permit.

Mayor Bell concludes the letter with the following:

“The village is mindful of the potential supremacy/intergovernmental immunity issues that would typically arise in a project such as the current project proposed by ICE. However, even if the federal government could assert meritorious arguments concerning the local zoning based on an intergovernmental or supremacy argument, the complete unavailability of sewer capacity for the site is not a local zoning restriction that could be overcome by intergovernmental immunity or supremacy. Rather, such absence of sewer capacity is a public health, safety and welfare matter that applies to all uses – governmental or otherwise – and cannot be lawfully overcome by an assertion of governmental immunity or supremacy.

Accordingly, the proposed project in the Village of Chester is not viable for the reasons set forth herein and ICE should abandon any further consideration of the Village of Chester project site.”

Background

As previously reported, a Jan. 8 “Notice of Activity” was posted on the Department of Homeland Security’s website. It reads, in part:

“ICE is proposing to purchase, occupy and rehabilitate a warehouse property at 29 Elizabeth Drive, Chester, N.Y. in support of ICE operations. Proposed site improvements may include, but are not limited to, internal structural changes, surface parking area modifications, installation of a small guard building (approximately 150 square feet), establishment of an outdoor recreation area, utility and stormwater improvements, and fence line modifications. No site improvements are expected to be taller than the existing structure or expand beyond the current site boundaries, and all work and construction staging will occur within the parcel boundary. The new and modified facilities would occupy approximately 35.9 acres of land within the Village of Chester in Orange County.”

The facility, according to The Washington Post, would be part of a larger plan to house 80,000 individuals in warehouses across the country. Mayor Bell says the village has had no contact with the federal government prior to or after the Jan. 8 Notice of Activity.