Posted by: Patricia Salkin | May 30, 2021

NY Appellate Court Concluded DEC Was Not Authorized to Renew a Mining Permit

This post was authored by Olena Botshteyn, Esq.

Sand Land owns and operates a sand and gravel mine in the Town of Southampton. In 2014, Sand Land applied to NYSDEC for a modification permit, seeking to expand its mining operations both vertically and horizontally. DEC denied the permit, and Sand Land challenged the denial in court. In 2018, the court ruled that the Mined Land Reclamation Law (“Law”) prohibited DEC from processing mining permits for mines located in the area with population over one million people that consume water from a sole source aquifer, and that the Town of Southampton had a local law in place, prohibiting mining activities. In February 2019, DEC and Sand Land entered into a settlement agreement and DEC agreed to renew Sand Land’s permit including the 40-foot vertical expansion of the mine.

In April 2019, the Town of Southampton commenced an action to annul the settlement agreement and the renewed permit, citing the Law and stating that DEC could not issue the said permit. In September 2020, Supreme Court dismissed the petition finding that the Law only applies to initial applications, not a modification application, as in the case at hand, which proposes only mining deeper within the existing footprint. The Town appealed.

On appeal, the court concluded that DEC acted in violation of the said Law, when it issued the permit, and reversed. The court first determined that the Law does not supersede Town’s zoning laws, therefore, the Town’s local law, prohibiting mining activities, would prohibit a new mine in the area, but the Sand Land’s mine is considered a legal prior nonconforming use, and therefore, would be allowed to continue operating. The court then referred to the provision of the Law, stating “No agency of this state shall consider an application for a permit to mine … within counties with a population of one million or more which draw their primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Respondents argued that this provision applies only to new permits or permits seeking substantial modifications, and the 40-foot vertical expansion is not substantial. The court disagreed, stating that based on the plain language of the statute DEC was not authorized to issue the said permit, as the applicant’s mine falls within the area described in the Law. The court thus reversed the judgment of Supreme Court.

Judge Pritzker dissented, concluding in his opinion that the stated above provision of the Law is applicable only to newly applied permits. He also stated that the part of the provision “if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” being applied here, means that although the Town generally prohibits mining uses in the area, Sand Land’s mine is not prohibited as a legal prior nonconforming use “within the area proposed to be mined”. Since prior nonconforming uses may be expanded through exploitation of reserves, which is exactly what was proposed here, Judge Pritzker stated that in his opinion, judgment of Supreme Court should be affirmed.

Town of Southampton v NYSDEC, 2021 WL 2148413 (NYAD 3 Dept. 5/27/2021)


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