Sand Mining Hits Rock Bottom: LI’s Local Laws May Prohibit Future Operations
June 06, 2021
Last month, the Appellate Division, Third Department, held the Mined Land Reclamation Law (“Mining Law”), as amended, does not preempt certain local zoning laws which prohibit mining. Specifically, in Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351 [3d Dept 2021], the Appellate Division held the statute “clearly recognizes that the local laws of the municipality are determinative as to whether an application [for mining] can be processed.”
The Mining Law, as Amended
The Mining Law is codified in Article 23, Title 27, of the Environmental Conservation Law (“ECL”), and grants the New York State Department of Environmental Conservation (“NYSDEC”) broad authority to regulate the mining industry state-wide. To encourage sound mining, manage depletable resources, and assure reclamation of mined land, the Legislature enacted the Mining Law to adopt standard and uniform restrictions and regulations to replace a patchwork system of local ordinances.
Notably, in 1991, the Legislature amended (“Amendment”) the Mining Law to prohibit a state agency from considering an application for a mining permit 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 ordinance prohibit mining uses within the area proposed to be mined (ECL § 23-2703).
Mining Operations, Applications, and the Settlement
Sand Land Corporation (“SLC”) is the owner and permittee of a sand and gravel mine located on a 50-acre parcel (“Property”) situated in the Town of Southampton (“Southampton”). Wainscott Sand and Gravel (“WSG”) is the operator of the mine. In 2014, SLC and WSG applied to the NYSDEC for a modification permit seeking a vertical and horizontal expansion of mining operations. In April 2014, the NYSDEC issued a negative declaration pursuant to the State Environmental Quality Review Act, but, in 2015, denied the permit application.
SLC and WSG requested a hearing to challenge the NYSDEC’s 2015 denial. An Administrative Law Judge issued two decisions: one in January 2018, regarding a procedural issue, and the other in December 2018, which denied the relief sought. Both decisions held the Amendment prohibited the NYSDEC from processing the permit applications because Southampton, located within Suffolk County, has a local law prohibiting mining.
In September 2018, during the time period between the two decisions, the NYSDEC issued notice of an intent to modify to SLC and WSG – that it would modify the existing permit to require them to cease all mining activity other than reclamation. In October 2018, SLC and WSG submitted an application to the NYSDEC to renew the mining permit, and to modify the permit to increase mining depth by 40 feet.
In February 2019, the NYSDEC and SLC and WSG entered into a settlement agreement (“2019 Agreement”), whereby, among other things, the NYSDEC agreed to (i) rescind its notice to modify and (ii) issue a renewal permit for an expanded life of the mine boundaries, and (iii) process the October 2018 permit application to deepen the mine by 40 feet. In March 2019, the NYSDEC issued the renewal permit. Also in March 2019, the NYSDEC relied upon the 2014 negative declaration to issue an amended negative declaration with respect to deepening the mine, and, in June 2019, issued the modification permit to deepen the mine. Apparently, the NYSDEC interpreted the Amendment to apply only to new permits or permits seeking substantial modifications.
Petitioners’ Article 78 Proceeding and Appeal
In April 2019, Southampton, several civic organizations, and neighboring landowners (collectively, “Petitioners”) commenced an Article 78 proceeding seeking to annul the 2019 Agreement, the renewal permit, and the amended negative declaration. In June 2019, Petitioners filed a supplemental petition seeking to annul the modification permit. The Supreme Court, Albany County, dismissed the petition. Petitioners appealed, and the Appellate Division modified.
The Appellate Division considered Petitioners’ claims in the context of the Mining Law and Amendment. In order to assure uniformity in restrictions and regulations across the State, the Legislature included an express supersession clause, which provides that the Mining Law shall supersede all local laws relating to the extractive mining industry. However, the court noted that in Frew Run Gravel Prods., Inc. v Town of Carroll, 71 NY2d 126 , the Court of Appeals distinguished between local laws which were superseded and those which were not. Local pertaining to the actual operation and process of mining were subject to the supersession clause, but other local laws fell outside the supersession clause’s preemption. To hold otherwise would curtail a town’s power to adopt zoning regulations and to decide whether a mining operation, like other uses governed by a zoning ordinance, should be permitted in a particular zoning district.
The Appellate Division also noted that, although Southampton prohibited mining, SLC’s and WSG’s operation is a preexisting, nonconforming use. While preexisting, nonconforming uses are constitutionally protected and permitted to continue (notwithstanding contrary provisions of an ordinance), such uses are considered detrimental to a zoning scheme, and overriding public policy aims at their reasonable restriction and eventual elimination.
Moreover, the court emphasized the Amendment to the Mining Law: “The [A]mendment is an outlier in a statute whose purpose is to promote uniformity, as it articulates a mandate directed at a specific geographic area – Long Island, where [Southampton] is located and where zoning laws prohibit mining.”
SLC and WSG, et al., argued that, per the NYSDEC’s interpretation, the Amendment applies only to new permits or permits seeking substantial modifications, and the 40-foot expansion within the existing mine footprint was immaterial because it did not request a horizontal expansion. Although the Supreme Court agreed and held an alternative characterization would be “nonsensical,” the Appellate Division disagreed.
When interpreting a statute, courts first turn to the text as the best evidence of the Legislature’s intent. Generally, a statute’s plain language is dispositive. The court held “[the Amendment] is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by [the NYSDEC], an application received from an area protected under [the Amendment] must be put on hold until the status of the local laws is determined.”
The Amendment contains no qualifications on what type of permit must be put on hold – it applies to all applications. Courts cannot amend statutes by inserting words that are not there, and if the Legislature intended to limit the type of permit applications to which the Amendment applied, it would have done so. “After all,” the court noted, the Amendment “very precisely limited the geographic area to which it applies.”
The Appellate Division also held that, given the unambiguous text and the question of pure statutory interpretation, deference to the NYSDEC’s competence or expertise was not required; such a question depends only on an accurate apprehension of Legislative intent.
Here, the Amendment clearly recognizes the local laws of Southampton are determinative regarding whether applications can be processed. Southampton’s zoning ordinance prohibits mining, and so the NYSDEC cannot process the application – let alone issue the permit. Therefore, the NYSDEC’s act of issuing the permits contravened the Amendment and, as such, was arbitrary and capricious.
 The Court noted in a footnote that it is undisputed Suffolk County is an area with a population of over one million that draws its primary drinking water from a sole source aquifer.