Town of Southampton v. N.Y.S. Dep't of Envtl. Conservation

• Decision Date: 27 May 2021
• Docket Number: 529380, 532083
• Citation: 149 N.Y.S.3d 589,194 A.D.3d 1310
• Parties: In the Matter of TOWN OF SOUTHAMPTON et al., Appellants, et al., Petitioner, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents. County of Suffolk, Proposed Intervenor—Appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1310

149 N.Y.S.3d 589

In the Matter of TOWN OF SOUTHAMPTON et al., Appellants, et al., Petitioner,

v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.County of Suffolk, Proposed Intervenor—Appellant.

529380, 532083

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 9, 2021

Decided and Entered: May 27, 2021

Law Offices of Thomas M. Volz, PLLC, Nesconset (David H. Arntsen of counsel), for Town of Southampton, appellant.

Tooher & Barone, LLP, Albany (Meave M. Tooher of counsel) and Braymer Law, PLLC, Glens Falls (Claudia K. Baymer of counsel) and Lazer, Apthekar, Rosella & Yedid, PC, Melville (Zachary Murdock of counsel), for 101CO, LLC and others, appellants.

Dennis M. Cohen, County Attorney, Hauppauge (Elaine M. Barraga of counsel), for County of Suffolk, proposed intervenor-appellant.

Letitia James, Attorney General, Albany (Patrick A. Woods of counsel), for New York State Department of Environmental Conservation, respondent.

Matthews Kirst & Cooley, PLLC, East Hampton (Brian E. Matthews of counsel), for Sand Land Corporation and another, respondents.

Whiteman Osterman & Hanna LLP, Albany (John J. Henry of counsel), for Town of East Hampton and others, amici curiae.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeals (1) from an order of the Supreme Court (Ferreira, J.), entered September 13, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied a motion by the County of Suffolk to intervene, and (2) from a judgment of said court, entered September 3, 2020 in Albany County, which, among other things, dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review two determinations of respondent Department of Environmental Conservation granting certain Mined Land Reclamation permits to respondent Sand Land Corporation.

Respondent Sand Land Corporation is the owner and permittee¹ of a sand and gravel mine located on a 50–acre parcel of property in the Town of Southampton, Suffolk County, and respondent Wainscott Sand and Gravel Corporation operates the mine. In 2014, Sand Land and Wainscott Sand and Gravel (hereinafter collectively referred to as Sand Land) applied to respondent Department of Environmental Conservation (hereinafter DEC) for a modification permit seeking, as relevant here, a vertical and horizontal expansion of its mining operations. The proposed horizontal expansion consisted of 4.9 acres – 1.9 acres of previously unmined land and three acres known as the "stump dump."² The vertical expansion sought to mine 40 feet deeper to a level of 120 feet above mean sea level. In April 2014, pursuant to the State Environmental Quality Review Act (see ECL art 8), DEC issued a negative declaration. A year later, DEC denied the permit.

Sand Land requested a hearing to challenge the denial of the 2014 permit application. The hearing produced two decisions from the Administrative Law Judge – a January 2018 ruling on a threshold procedural issue and a December 2018 ruling, among other things, denying Sand Land's motion to renew and reargue. Both rulings held that ECL 23–2703 prohibited DEC from processing mining permits for mines located in an area with a population of over one million people that draws its primary drinking water from a designated sole source aquifer,³ and that petitioner Town of Southampton has a local law prohibiting mining in the Town. In between these two administrative decisions, DEC, in September 2018, issued a notice of intent to modify to Sand Land, which stated that DEC was modifying the existing permit to require Sand Land to cease all mining activity other than reclamation.⁴ Also, in October 2018, Sand Land submitted an application to renew its mining permit.

This application specified that 31.5 acres were to be included in the life of the mine and sought an increase in the depth of the mine by 40 feet.

In February 2019, DEC and Sand Land entered into a global settlement agreement settling all pending administrative proceedings. As relevant here, under the terms of the agreement, DEC agreed to rescind its notice to modify and issue a "renewal" permit for an expanded life of the mine boundaries and process Sand Land's October 2018 permit application to deepen the mine by 40 feet. The settlement was made expressly contingent on DEC's issuance of said permit, which it did. DEC issued the renewal permit in March 2019. Also, in March 2019, and relying on the prior 2014 negative declaration, DEC issued an amended negative declaration with respect to the permit to deepen the mine. In June 2019, DEC issued the modification permit granting Sand Land the authority to deepen the mine by 40 feet.

In April 2019, petitioners – the Town, several civic organizations and three neighboring landowners⁵ – commenced this CPLR article 78 proceeding seeking to annul the February 2019 settlement agreement, DEC's March 2019 amended negative declaration and DEC's March 2019 issuance of a renewal permit. Following DEC's issuance of another modification permit, in June 2019, petitioners filed a supplemental petition seeking to annul that permit. Meanwhile, in May 2019, the County of Suffolk moved to intervene and submitted a proposed petition asserting the same legal claims as the original petition. Respondents opposed the motion. In September 2019, Supreme Court denied the County's motion finding that the County lacked capacity to bring the claims set forth in the proposed petition against DEC as a subsidiary of the state. The County appeals from this order. In September 2020, Supreme Court dismissed the petition finding, as relevant here, no violation of ECL 23–2703(3), as it does not apply to a modification application such as this one, which proposes only mining deeper within its existing footprint. Petitioners appeal from this judgment.

Initially, Supreme Court did not err in denying the County's motion to intervene. The County argues that authorization to intervene can be inferred from ECL 23–2703(3) and 23–2711(3) in conjunction with the County's role in protecting and monitoring groundwater quality. However, these statutes refer to the municipality that enacts local zoning laws. As such, the Town rather than the County would have the capacity to sue DEC. Likewise, the County's assertion that Suffolk County Charter § C16–2 confers capacity upon it is meritless, as "a generic grant of authority to sue or be sued [is] insufficient" ( Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 386, 67 N.Y.S.3d 547, 89 N.E.3d 1227 [2017] [internal quotation marks omitted]; see Matter of Bethpage Water Dist. v. Daines, 67 A.D.3d 1088, 1090–1091, 888 N.Y.S.2d 273 [2009], lv denied 14 N.Y.3d 707, 2010 WL 1707404 [2010] ). Although "[c]ourts may allow other interested persons to intervene in special proceedings, ... this permissive determination lies within the court's discretion" ( Matter of Pace–O–Matic, Inc. v. New York State Liq. Auth., 72 A.D.3d 1144, 1145, 898 N.Y.S.2d 295 [2010] [internal quotation marks and citation omitted]). We find no abuse of discretion in Supreme Court's decision.

Turning to substantive matters, the Mined Land Reclamation Law (see ECL 23–2701 et seq. ) grants DEC broad authority to regulate the mining industry in the state. The law looks to encourage a sound mining industry, provide for the management of depletable resources and assure the reclamation of mined land. The Legislature sought to achieve these purposes through "the adoption of standard and uniform restrictions and regulations to replace the existing patchwork system of local ordinances" ( Matter of Wallach v. Town of Dryden, 23 N.Y.3d 728, 745, 992 N.Y.S.2d 710, 16 N.E.3d 1188 [2014] ). In order to assure this uniformity, the law contains an express supersession clause, which provides that the Mined Land Reclamation Law shall supersede all "local laws relating to the extractive mining industry" ( ECL 23–2703[2] ). However, the Mined Land Reclamation Law does not supersede all local laws. In Matter of Frew Run Gravel Prods., Inc. v. Town of Carroll, 71 N.Y.2d 126, 524 N.Y.S.2d 25, 518 N.E.2d 920 (1987), the Court of Appeals clarified the applicability of this supersession clause and differentiated between local laws pertaining to the actual operation and process of mining, which were subject to the clause, and other local laws, which fell outside its preemptive orbit. In determining that zoning ordinances are not subject to this clause, the Court stated that to do otherwise "would drastically curtail [a] town's power to adopt zoning regulations granted in [ Statute of Local Governments § 10(6) ] and in Town Law § 261. Such an interpretation would preclude [a] town board from deciding whether a mining operation – like other uses covered by a zoning ordinance — should be permitted or prohibited in a particular zoning district" ( id. at 134, 524 N.Y.S.2d 25, 518 N.E.2d 920 [citations omitted]).

Although a review of the record evidences that the Town's local zoning laws prohibit mining, because Sand Land's predecessor began operating in the 1950s – prior to the zoning restrictions now in place – mines such as Sand Land's are generally considered to be a legal prior nonconforming use and will be "permitted to continue, notwithstanding the contrary provisions of the ordinance" ( Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127, 135, 897 N.Y.S.2d 677, 924 N.E.2d 785 [2010] [internal quotation marks and citation omitted]). At the same time, although "prior nonconforming uses in existence when a zoning ordinance is adopted are, generally, constitutionally protected[,] ... the law ... generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in [this s]tate and elsewhere is aimed at their reasonable restriction and eventual elimination" ( Buffalo...