NIMBY Notes: Not-so-Free Reign

When we sit down with developers whose projects we’ve helped to win a permit over the years, one of the things we like to hear about is their progress, if any, toward expansion of their existing facility. For the ones who are trying to expand, we hear something like this over and over again: “After the initial approval battle, I was bracing for another exhausting round of NIMBY opposition. But for some reason, this time it seems easier, calmer. Almost neighborly.” That’s not to say that they always have a smooth path to expansion, but it happens a lot more often than you’d think.

This attitude doesn’t really surprise us any more. When a developer gets the rezoning he needs, for example, there’s a night of popped champagne and backslapping all around. But the next day, we  impress upon them how important it is that they live up to all the promises we made during the initial campaign. Those commitments to be a good neighbor aren’t just rhetoric; they are your word, and you have to live up to it. The biggest mistake you can make, post-approval, is thinking you’re scot-free and can run your business without worrying about the impression you are leaving in the minds of neighbors and the press.

Most developers understand this. But there are always a few who don’t. Take, for example, the long-running debacle in North Bergen, N.J.

There, Eagle Recycling, which owns a recycling plant in the area, has been embroiled in one controversy after another. The company’s poor neighborhood relations have resulted in a community uproar, with abutters describing Eagle as “the neighbor from Hell” in one particularly colorful news story. Their complaints about dust, poor business practices and safety code violations have percolated up into the municipal government, which is not blind to the political contours of this debate. A spokesman for North Bergen took the extraordinary step of saying on the record that the township was doing everything it could to put the company out of business.

That might sound excessive, but if anyone’s earned it, it’s Eagle. The company pled guilty last year to the illegal dumping of more than 8,000 tons of construction and demolition debris (including asbestos) and then attempting to destroy documents to conceal it. Five months before that, they were cited for OSHA violations. And more recently, they were forced into a private, out-of-court settlement with North Bergen township, resulting in Eagle paying more than $200,000 in unpaid hosting fees.

This toxic mix of bad headlines and poor community relations has convinced the local government that there is no downside to going after Eagle Recycling with gusto. The town notes that it has “been vigilant in imposing fines and closures on Eagle Recycling and has fined them over $50,000 in the last year alone for fire violations.” They brag about “[spending] over $20,000 in legal fees to determine how [we] can shut Eagle down permanently,” and in July, local commissioners voted to ban trucks over 5 tons gross weight from a very narrow couple of blocks —coincidentally, right in Eagle Recycling’s neighborhood.

All this drama over a recycling facility, one of the most popular facilities in the solid waste industry (compared to landfills and transfer stations). If Eagle were to seek an expansion, they’d be dead in the water. As it is, they’re dealing with crippling fines and regulations.

This fiasco should serve as a powerful object lesson to developers happily clutching their newly minted permit. Even after you’ve gotten permission to get up and running, the way you conduct your business matters. It can impact your ability to secure an expansion down the road, but even if you have no plans to expand, local governments have the ability to make running your facility much more expensive, arduous and unpleasant than it has to be. And if you upset the neighbors too much, you’ll give a vote-seeking local councilmember the perfect justification for doing so.