Posted by: Patricia Salkin | January 11, 2018

NY Appellate Court Upholds Denial of Special Use Permit to Quarry

This post was authored by Matthew Loeser, Esq.

In 2003, plaintiff Troy Sand & Gravel Company, Inc. applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau, Rensselaer County. Plaintiff also applied for a special use permit and site plan approval from defendant Town of Nassau. As lead agency for the coordinated State Environmental Quality Review Act (“SEQRA”) process, DEC issued a positive declaration and Troy Sand prepared a draft environmental impact statement (“EIS”) in 2006. After a public hearing and comment period, Troy Sand prepared a final EIS in 2007 and the DEC issued its SEQRA findings approving the project and granting the mining permit. A preliminary injunction that precluded the Town from conducting its own review of the environmental impact of the proposed quarry as part of its zoning determination was issued by the Supreme Court, which was then reversed by the Appellate Court. The Town Board rescinded its determination that the permit was complete, and the plaintiffs commenced an appeal from an order of the Supreme Court action seeking a declaration that the Town was bound by DEC’s SEQRA findings. In that 2015 appeal, the court found that although the Town Board retained the authority to undertake an independent review of Troy Sand’s application, it was not permitted to evaluate the proposed quarry’s environmental impact based on information collected outside of the SEQRA process. The Town Board then denied Troy Sand’s application, and petitioners then commenced this CPLR article 78 proceeding seeking to annul the Town Board’s determination. The Supreme Court of New York dismissed the petition, upholding the Town Board’s denial of a special use permit, and petitioners appealed.

On appeal, petitioners contended that nearly every conclusion in the Town Board’s determination was arbitrary and capricious because it was contrary to the final EIS and not founded in the SEQRA record. In evaluating Troy Sand’s application, the Town Board first recounted the history and development of the Town in order to convey the historic and desired nature and character of its community, and then evaluated Troy Sand’s compliance with the general performance standards and other universally applicable land use regulations as well as the special use permit standards of Local Law No. 2. At the outset, the court noted that the Town Board’s determinations regarding the general land use standards were either founded on information outside of the SEQRA record or entirely inconsistent with the final EIS. Nevertheless, the court find that the Town Board’s denial of Troy Sand’s application was properly based upon three of the four special use permit standards in the final EIS.
Here, the court determined, there was ample evidence in the SEQRA record that the proposed quarry will be a sizable operation, and the final EIS supports the Town Board’s determination that the project would create a highly intensive industrial land use in an area where only one small commercial entity currently existed. The court also found that the Town Board was justified in concluding that the probability of decreased property values associated with the proposed land use rendered the second special use standard unsatisfied. As that standard was not satisfied, the Town Board relied on a property value impact analysis prepared by an expert whose qualifications had not been challenged. The Town Board also rationally concluded that the proposed project would alter the essential character of the Town and the immediate neighborhood, which is comprised of residential lots and undeveloped forest land. Accordingly, the Supreme Court’s holding in favor of the Town was affirmed.

Troy Sand and Gravel Co., Inc. v Fleming, 156 A.D. 3d 1295 (3 Dept. 12/28/2017)

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: