Posted by: Patricia Salkin | April 22, 2016

NY Appellate Court Finds Petitioners Had Standing and Upholds Grant of Extraordinary Hardship Waiver for Sand and Gravel Mine in LI Pine Barrens

Respondent Westhampton Property Associates, Inc., owns and operates a sand and gravel mine partially located within the “core preservation area” of the Long Island Central Pine Barrens and also within the Town of Southampton. In November 2011, Westhampton applied to the Central Pine Barrens Joint Planning and Policy Commission for an extraordinary hardship waiver to permit it to vertically expand the mine depth from 44 feet above sea level to 26 feet above sea level. In a determination dated October 17, 2012, the Commission granted Westhampton the extraordinary hardship waiver. The Long Island Pine Barrens Society, Inc., Richard Amper, in his capacity as the Society’s Executive Director and in his individual capacity, and Robert McGrath and Thomas Casey, as members of the Board of Directors and in their individual capacities, commenced this article 78 proceeding to review the Commission’s determination. The Supreme Court denied the petition on the ground that the petitioners lacked standing to maintain the proceeding, and, in the alternative, held that the challenged determination was not arbitrary, capricious, or an abuse of discretion.

The court first determined that the Supreme Court erred in holding that the petitioners lacked standing to challenge the subject determination. Here, the petitioners established that Amper, in both his individual and professional capacities, used and enjoyed the Pine Barrens to a greater degree than most other members of the public. The threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens fell within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993. Additionally, the Society met the second and third prongs of the organizational standing test, in that its interests in the instant proceeding were germane to its purposes, and that neither the asserted claim nor the appropriate relief required the participation of the individual members. Thus, both Amper and the Society had standing to challenge the determination at issue.

Regardless of this error, the court was found to have properly dismissed the challenge on its merits. Here, the record demonstrated that Westhampton’s proposed expansion, located in the “core preservation area,” required an extraordinary hardship waiver. The court found the Commission’s determinations that Westhampton established that any hardship was not self-created, and that Westhampton had no other beneficial use of the property absent the hardship waiver were not arbitrary and capricious. The record likewise supported the Commission’s determination that the subject property, used as a mine since 1981, would be subject to various zoning restrictions if the property were used as anything else other than as a mine. Accordingly, the Supreme Court was held to have correctly denied the petition and dismissed the proceeding.

Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning and Policy Commission, 2016 WL 1576954 (NYAD 2 Dept 4/20/2016)


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