Opinion
2015-2912 S CR
12-05-2018
The PEOPLE of the State of New York, Appellant, v. WAINSCOTT SAND AND GRAVEL CORP. and Wainscott Sand and Gravel Corp. II, Respondents.
Devitt Spellman Barrett, LLP (David H. Arntsen of counsel), for appellant. Matthews, Kirst & Cooley, PLLC (Deborah Choron, Esq.), for respondent.
Devitt Spellman Barrett, LLP (David H. Arntsen of counsel), for appellant.
Matthews, Kirst & Cooley, PLLC (Deborah Choron, Esq.), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V. BRANDS, JJ
ORDERED that the order is reversed, on the law, defendants' motion to dismiss the four accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.
In September 2013, the People charged defendants, in four separate accusatory instruments, with violating, on different dates, section 330-177 (A) of the Code of the Town of Southampton, alleging that, while defendants had a permit to conduct a sand mining and extraction operation at a specified premises, they had violated the certificate of occupancy therefor by, among other things, allowing road construction debris, including concrete and asphalt, to be deposited and processed at the mining premises. Defendants moved to dismiss the accusatory instruments, arguing that the supersession clause in the New York State Mined Land Reclamation Law (MLRL) (see ECL 23-2701 et seq. ) preempted the authority of the Town of Southampton to regulate sand mining operations and activities ancillary thereto, via local zoning rules (see ECL 23-2703 [2 ] ). Defendants further argued that they are permitted to have the construction debris deposited, received crushed and processed at the mining premises pursuant to a permit filed in accordance with the Department of Environmental Conservation's regulations (6 NYCRR part 360), and that the Justice Court was precluded from making findings that the depositing, receiving, crushing and processing of construction debris would constitute an illegal change of use (citing Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton , 43 Misc.3d 1202[A], 2014 N.Y. Slip Op. 50453[U], 990 N.Y.S.2d 439 [Sup. Ct., Suffolk County 2014] ). In addition, defendants argued that there is nothing contained in the certificate of occupancy determining what activities are permitted on a legally existing sand and gravel mine that precludes them from having such construction debris deposited, received, crushed and processed at the premises. The People opposed the motion, arguing that defendants had violated the certificate of occupancy by depositing, receiving, crushing and processing various construction debris. By order entered July 24, 2015, the Justice Court granted defendants' motion, and the People appeal.
We cannot agree with defendants' contention that the Town's regulation of land use activities at defendants' premises violates the state's preemption policy. The determination of whether a "supersession clause" preempts local zoning laws requires consideration of three factors, "(1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history" ( Matter of Wallach v . Town of Dryden , 23 N.Y.3d 728, 744, 992 N.Y.S.2d 710, 16 N.E.3d 1188 [2014] ; see also Matter of Frew Run Gravel Prods. v. Town of Carroll , 71 N.Y.2d 126, 524 N.Y.S.2d 25, 518 N.E.2d 920 [1987] ). The declared purpose of the MLRL is "to foster and encourage the development of an economically sound and stable mining industry, and the orderly development of domestic mineral resources and reserves necessary to assure satisfaction of economic needs compatible with sound environmental management practices" and, among other enumerated things, "to provide for the conservation, development, utilization, management and appropriate use of ... natural resources" ( ECL 23-2703 [1 ] ). This provision has been construed, in the case of mining operations, to apply "only [to] those laws that deal ‘with the actual operation and process of mining’ [that] are superseded" ( Matter of Hunt Bros. v. Glennon , 81 N.Y.2d 906, 909, 597 N.Y.S.2d 643, 613 N.E.2d 549 [1993], quoting Matter of Frew Run Gravel Prods. v. Town of Carroll , 71 N.Y.2d at 131, 524 N.Y.S.2d 25, 518 N.E.2d 920 ), and not "local zoning ordinances that are addressed to subject matters other than extractive mining and that affect the extractive mining industry only in incidental ways" ( Matter of Hunt Bros. v. Glennon , 81 N.Y.2d at 909, 597 N.Y.S.2d 643, 613 N.E.2d 549 ; see e.g. Troy Sand & Gravel Co., Inc. v. Town of Nassau , 101 A.D.3d 1505, 957 N.Y.S.2d 444 [2012] ; Town of Riverhead v. T.S. Haulers , 275 A.D.2d 774, 713 N.Y.S.2d 740 [2000] ; Preble Aggregate v. Town of Preble , 263 A.D.2d 849, 694 N.Y.S.2d 788 [1999] ). The "supersession clause" is not intended to "limit municipalities' broad authority to govern land use" by means of their "local zoning authority," but to "withdraw from municipalities the authority to enact local laws imposing land reclamation standards that were stricter than the State-wide standards under the MLRL" ( Matter of Gernatt Asphalt Prods. v. Town of Sardinia , 87 N.Y.2d 668, 681-682, 642 N.Y.S.2d 164, 664 N.E.2d 1226 [1996] ). As "[o]ne of the most significant functions of a local government is to foster productive land use within its borders by enacting zoning ordinances" ( DJL Rest. Corp. v. City of New York , 96 N.Y.2d 91, 96, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001] ), a zoning law will be invalidated on preemption grounds only where there is a "clear expression of legislative intent to preempt local control over land use" and even where, as here, the legislature has provided an express preemption clause, it is only when local zoning ordinances affect "the details or procedure[s]" established by state law for such operations that the preemption rules apply ( Matter of Norse Energy Corp. USA v . Town of Dryden , 108 A.D.3d 25, 32-34, 964 N.Y.S.2d 714 [2013], affd sub nom. Matter of Wallach v . Town of Dryden , 23 N.Y.3d 728, 992 N.Y.S.2d 710, 16 N.E.3d 1188 [2014] ). Traditional land use considerations, such as "compatibility with neighboring land uses, and noise and air pollution" are not subject to preemption, express or implied ( id. at 37, 964 N.Y.S.2d 714 ). "A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole" ( Matter of Gernatt Asphalt Prods. v. Town of Sardinia , 87 N.Y.2d at 684, 642 N.Y.S.2d 164, 664 N.E.2d 1226 ).
Pursuant to ECL 23-2705 (8),
" ‘Mining’ means the extraction of overburden and minerals from the earth; the preparation and processing of minerals, including any activities or processes or parts thereof for the extraction or removal of minerals from their original location and the preparation, washing, cleaning, crushing, stockpiling or other processing of minerals at the mine location so as to make them suitable for commercial, industrial, or construction use; exclusive of manufacturing processes, at the mine location; the removal of such materials through sale or exchange, or for commercial, industrial or municipal use; and the disposition of overburden, tailings and waste at the mine location. ‘Mining’ shall not include the excavation, removal and disposition of minerals from construction projects, exclusive of the creation of water bodies, or excavations in aid of agricultural activities."
Indeed, the depositing, receiving and processing of road construction debris, including concrete and asphalt—for which activities defendants acknowledged they had obtained a separate permit in accordance with the Department of Environmental Conservation's regulations (see 6 NYCRR part 360)—which are unrelated to mining under the Environmental Conservation Law, are not included in the definition of mining in the ECL 23-2705 (8). Consequently, as the land use violations charged herein do not implicate the actual operation and process of defendants' mining operation under the Environmental Conservation Law, they are subject to local regulation and to enforcement by the Town of Southampton.
Accordingly, the order is reversed, defendants' motion to dismiss the four accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.
The decision and order of this court dated April 5, 2018 ( 59 Misc.3d 67, 75 N.Y.S.3d 782 (2018) ) is hereby recalled and vacated (see motion decided simultaneously herewith).
MARANO, P.J., and GARGUILO, J., concur.
BRANDS, J., taking no part.