Opinion
Index No. 904080-23
04-11-2024
Sand Land Corporation AND WAINSCOTT SAND AND GRAVEL CORP., Plaintiffs/Petitioners, v. New York State Department of Environmental Conservation, Defendant/Respondent, and TOWN OF SOUTHAMPTON, 101CO, LLC; 102CO NY, LLC, BRRRUBIN, LLC; BRIDGEHAMPTON ROAD RACES, LLC; CITIZENS CAMPAIGN FOR THE ENVIRONMENT; GROUP FOR THE EAST END; NOYAC CIVIC COUNCIL; JOSEPH PHAIR, Intervenors/Defendants.
Gregory M. Brown, Esq. Fogel & Brown, P.C. Attorneys for Plaintiff/Petitioners Sand Land Corporation and Wainscott Sand and Gravel Corp. Stephen M. Nagle, Esq., Assistant Attorney General Office of the New York State Attorney General Attorneys for Defendant/Respondent New York State Department of Environmental Conservation The Capitol David H. Arnsten, Esq. The Law Offices of Thomas M. Volz, PLLC Attorneys for Intervenor/Defendant Town of Southampton Meave M. Tooher, Esq. Tooher & Barone, LLP Attorneys for Intervenors/Defendants 101Co, LLC, 102Co NY, LLC, BRRRubin, LLC, and Bridgehampton Road Races, LLC Zachary Murdock, Esq. Lazer, Aptheker, Rosella & Yedid, P.C. Attorneys for Intervenor/Defendant Joseph Phair, Claudia K. Braymer, Esq. Braymer Law, PLLC Attorneys for Intervenors/Defendants Citizens Campaign for the Environment, Group for the East End, and Noyac Civic Council
Unpublished Opinion
Gregory M. Brown, Esq.
Fogel & Brown, P.C.
Attorneys for Plaintiff/Petitioners Sand Land Corporation and Wainscott Sand and Gravel Corp.
Stephen M. Nagle, Esq., Assistant Attorney General
Office of the New York State Attorney General
Attorneys for Defendant/Respondent New York State Department of Environmental Conservation
The Capitol
David H. Arnsten, Esq.
The Law Offices of Thomas M. Volz, PLLC
Attorneys for Intervenor/Defendant Town of Southampton
Meave M. Tooher, Esq.
Tooher & Barone, LLP
Attorneys for Intervenors/Defendants 101Co, LLC, 102Co NY, LLC, BRRRubin, LLC, and Bridgehampton Road Races, LLC
Zachary Murdock, Esq.
Lazer, Aptheker, Rosella & Yedid, P.C.
Attorneys for Intervenor/Defendant Joseph Phair,
Claudia K. Braymer, Esq.
Braymer Law, PLLC
Attorneys for Intervenors/Defendants Citizens Campaign for the Environment, Group for the East End, and Noyac Civic Council
Hon. James H. Ferreira, Acting Justice of the Supreme Court
This CPLR article 78 proceeding is the most recent of many actions relating to the operation of a sand and gravel mine in the Town of Southampton (the Town), located in Suffolk County, New York. The mine is owned and operated by plaintiffs/petitioners Sand Land Corporation and Wainscott Sand and Gravel Corp (collectively "Sand Land" or "petitioners").
The facts of this matter are fully set forth in the related matter: Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 N.Y.3d 201 (2023) (also referred to as the "related matter"). Briefly,
[t]he mine has been operating continuously since the 1960s, at which time the zoning code allowed mining pursuant to a required permit. In 1972, the Town re-zoned the area where the parcel is located to a residential district in which mining is prohibited. In 1981, Sand Land's predecessor in interest obtained a Mined Land Reclamation Permit (MLRP) from [the Department of Environmental Conservation (DEC)], which was renewed in 1985. In 1998, DEC renewed the MLRP and transferred it to Sand Land, authorizing mining on 31.5 acres to a depth of 160 feet above mean sea level (amsl). In 1998, Sand Land also began receiving and processing vegetative organic waste materials in a 3.1 acre portion of the property known as the "stump dump." In 2011 and 2016, Sand Land obtained certificates of occupancy from the Town stating that the use of the site as a sand mine was a prior nonconforming use. DEC also renewed Sand Land's permit in 2003, 2008, and 2013.
In 2014, Sand Land submitted an application to DEC to modify its permit. The application sought to increase the depth of mining by 40 feet, from 160 feet amsl to 120 feet amsl. The application also proposed mining on an additional 4.9 acres that had not been approved under prior DEC permits, comprised of a 1.8 acre "area of modification" and the 3.1- acre stump dump(id., at 205-206).
While the DEC initially denied Sand Land's 2014 permit modification application, before the administrative review of that denial was completed, the parties entered into a settlement agreement. As part of that agreement, Sand Land agreed to, among other things, cease the processing of vegetative organic waste materials, and the DEC agreed to, among other things, renew Sand Land's permit and allow Sand Land to increase its mining activity to 34.5 acres (see NYSCEF No. 902239-19, No. 43).
By its 2014 application, Sand Land sought to modify its permit to allow for mining on an additional 4.9 acres, and to excavate 40 feet deeper. On April 15, 2014, the DEC issued a negative declaration pursuant to SEQRA (see NYSCEF No. 902239-19, No. 43).
In 2016, after Sand Land was issued notices of violations that it had impermissibly mined outside of its approved Site Plan, the parties entered into an Order on Consent (2016 Order on Consent), wherein Sand Land agreed to pay a civil penalty and remediate the alleged violations pursuant to a Schedule of Compliance (see NYSCEF No. 83). As per that Schedule of Compliance, Sand Land was required to submit a remediation plan which included, the "[c]urrent topography and spot elevations for the entire Life of Mine Boundary. This shall include the lands contained in the 25-foot unaffected buffer, the historic stump dump, the reclaimed slopes on the east and north side of the mine, and the mine floor" (MYSCEF No. 83, page 11). Accordingly, as of 2016, the DEC and Sand Land agreed that the stump dump was included in the Life of Mine (LOM) .
" 'Life of Mine' is a term of art used by the DEC since 1987 that is defined as 'the total area to be mined and the length of time to exhaust the minerals intended to be excavated from that area, generally shown in the Minded [sic] Land Use Plan [MLUP]' "(NYSCEF No. 26, n. 3).
In March 2019, the DEC issued the renewed permit to Sand Land, permitting mining on the 34.5 acres, together with an amended negative declaration allowing an increase to the depth of mining, thus prompting the commencement of Matter of Town of Southampton v New York State Dept. of Envtl. Conservation. During the pendency of the related matter, and in response to Sand Land's subsequent application to revise the mining plan, in June 2019, the DEC issued a modified permit authorizing mining to a depth of 120 feet amsl - 40 feet more than the previously permitted depth (June 2019 modified permit) (see NYSCEF No. 78, page 94). Petitioners, in the related matter, then amended their petition to challenge the June 2019 modified permit. Also during the pendency of the related matter, in May 2020, the DEC issued a second modified permit (May 2020 second modified permit) that permitted Sand Land to
Petitioners in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation were comprised of a variety of individuals and entities, including neighboring landowners and civic groups, who sought to vacate and annul the settlement agreement entered into between Sand Land and the DEC, and the DEC's issuance of the 2019 renewal permit and the June 2019 modified permit.
Mine Sand and Gravel from 34.5 acres of a 34.5 acre Life of Mine (LOM) on a 50 acre property. Within the 34.5 acre LOM, the final mine floor will be at elevation 120 feet amsl. The site will be reclaimed to open meadow for equestrian or agricultural use...
This modification removes the provision allowing vegetative waste to be brought to the site for reclamation purposes. All future reclamation will be done using loam and sand that already exists on the site. Importation of products is limited to, crushed stone, crushed concrete aggregate and finished compost (created off site from yard trimmings) to create salable aggregate products and sand-based soils. All mining activities at the site will continue in accordance with the permit modification issued on 6/5/2019, which expires on 3/14/2024
(NYSCEF No. 7 [emphasis added]; NYSCEF No. 78, page 12).
By Decision dated February 9, 2023, the Court of Appeals in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation annulled the 2019 renewal and June 2019 modified permits (see id., at 214). The Court of Appeals remitted the matter to Supreme Court with directions to remand the issue of non-conforming use to the DEC, which "must first ascertain from the Town [ ] whether Sand Land's proposed use is within the scope of any prior non-conforming use" (id.).
While the DEC's issuance of the May 2020 second modified permit was not briefed or addressed by the parties or the Court in the related proceeding, the May 2020 second modified permit authorized mining in accordance with the annulled June 2019 modified permit (see NYSCEF No. 78, page 12). The June 2019 modified permit authorized mining within a 34.5 acre LOM to a depth of 120 feet amsl - a 40-foot deepening over the existing footprint. In April 2023, the Town of Southampton advised the DEC that Sand Land had not established the extent of its pre-existing nonconforming use beyond the initial 20 acre footprint approved when zoning was enacted (see NYSCEF No. 27, page 9).
The Town, in the related action, stated that "[n]othing in this record suggests that Sand Land ever made the requisite evidentiary showing in any forum to obtain a determination that it had manifested an affirmative intent, prior to the area's 1972 upzoning, to mine beyond the then-approved 20-acre footprint[ ], or to mine as deep as it seeks to mine now with a DEC expansion permit. To the contrary, the record history of the parcel as a landfill and as the site for myriad non-mining uses after 1972 (including those held not preexisting nonconforming by the Second Department) refutes any suggestion that an intent to mine the entire parcel was manifested pre-upzoning. Sand Land has not established any nonconforming use rights beyond the extent of its permit as of the 1972 upzoning" (NYSCEF No. 27, pages 9-10).
As a result of the Court of Appeals' determination, the DEC took the position that the May 2020 second modified permit was extinguished by operation of law, and that the 2013 renewal permit applied to Sand Land's mining activities (see NYSCEF No. 61). The 2013 renewal permit authorized the mining of 31.5 acres of the 50 acre site, with the lowest bottom elevation of the mine to reach 160 feet amsl (see NYSCEF Nos. 4, 61,77, pages 8-13; and 78, page 246). On April 18, 2023, the DEC issued Sand Land a Notice of Violation asserting, among other things, that Sand Land failed to comply with its MLUP and mined below the authorized grade as per the 2013 renewal permit. The Notice also alleged that material was excavated from the stump dump, co-mingled with other materials that was excavated from below 160 feet amsl, and sold in violation of the 2013 renewal permit (see NYSCEF Nos. 11 and 77, page 34). On April 27, 2023, the DEC issued Sand Land a second Notice of Violation asserting, among other things, that Sand Land failed to, among other things, comply with its MLUP and improperly imported crushed stone onto the LOM from the East Coast Mines & Materials Corp. (ECMM), and improperly imported material from the stump dump to the LOM, where it was being blended with the material imported from ECMM in violation of 2013 renewal permit (see NYSCEF No. 13).
Indeed, while the May 2020 second modified Permit is also subject to local zoning review, the May 2020 second modified permit authorizing mining pursuant the June 2019 modified permit. Accordingly, the zoning review undertaken by the Town with respect to the June 2019 modified permit would be the same undertaken with respect to the May 2020 second modified permit.
Sand Land then commenced this action seeking a declaration that, notwithstanding the Court of Appeals determination in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, the May 2020 second modified permit remains effective absent the DEC's compliance with the administrative procedures for the suspension and revocation of the May 2020 second modified permit (see ECL 70-0115 [1]; 6 NYCRR 621.13). Sand Land also challenges the DEC's determination to apply the 2013 renewal permit to Sand Land's activities and to issue notices of violation pursuant to that permit as affected by error of law, arbitrary and capricious, irrational, and an abuse of discretion. Accordingly, Sand Land seeks, inter alia, an order annulling the notices of violation issued in April 2023.
Sand Land's complaint seeks declaratory relief and relief pursuant to CPLR article 78, including that 1) the May 2020 second modified permit is the controlling permit; 2) Sand Land may remove for sale the stockpiled materials at the mine below 160 feet amsl; 3) the DEC's issuance of the Notices of Violation pursuant to the 2013 renewal permit is affected by errors of law, arbitrary and capricious, irrational, and an abuse of discretion; 4) the DEC's demand that Sand Land provide additional surveying is affected by errors of law, arbitrary and capricious, irrational, and an abuse of discretion; and 5) the DEC is equitably estopped from prohibiting Sand Land from removing for sale stockpiled minerals (see NYSCEF No. 2).
By Decision and Order dated September 22, 2023 (see NYSCEF No. 95), this Court denied Sand Land's Order to Show Cause seeking a preliminary injunction enjoining the DEC from prohibiting it from removing stockpiled minerals for sale and otherwise engaging in mining activities that are otherwise permitted by the May 2020 second modified permit, and granted the DEC's Order to Show Cause seeking a preliminary injunction preventing Sand Land from operating under any permit other than the 2013 renewal permit, and specifically, based upon the limitations set forth in the 2013 renewal permit, enjoining Sand Land from importing materials into the LOM and removing stockpiled minerals for sale.
In opposition to the petition, the DEC has submitted an answer with affirmative defenses and counterclaims, the underlying record, and the affidavit of Catherine A. Dickert, the Director of the DEC's Division of Mineral Resources (see NYSCEF No. 43), through which the DEC argues that the 2013 permit (see NYSCEF No. 77, page 9), and not the May 2020 second modified permit (see NYSCEF No. 78, page 12), is the operative permit for the mine, and Sand Land is judicially estopped from arguing otherwise. By its counterclaims, the DEC seeks 1) a declaratory judgment holding that the 2013 permit governs mining at the Site, and that Sand Land may only engage in mining activities and reclamation activities in accordance with the terms and conditions of the 2013 permit, 2) an order holding Sand Land liable for violating the 2013 permit, and compelling Sand Land to comply with the 2013 permit and cure the violations set forth in the notices issued in April 2023 and, 3) an order declaring that Sand Land has exceeded the 160 feet amsl depth of mine restriction set forth in the 2013 permit, and that there is no sand remaining within LOM under the 2013 permit that may be legally mined. Sand Land has submitted an answer to DEC's counterclaims (see NYSCEF No. 81).
The DEC also argues that, since Sand Land has asserted claims under Article 78, which can fully vindicate its interests, its claims for a declaratory judgment must be dismissed or converted. Sand Land, in its reply, argues that a declaratory judgment action is appropriate to challenge DEC's contention that the May 2020 second modified permit was annulled by operation of law. "A primary difference between CPLR article 78 proceedings and declaratory judgment actions is the presence or absence of a judicially-imposed remedial order. In a declaratory judgment action, the court does not direct a party to do an act or refrain from doing an act. In a declaratory judgment action, the court merely declares the prevailing party's rights with respect to the matter in controversy for the purpose of guiding future conduct, and then, as colloquially described by Professor David Siegel, 'let[s] things go at that' (Siegel, NY Prac. § 436, at 738 (4th ed.]; CPLR 3001). By contrast, in a CPLR article 78 proceeding, the court affirmatively directs a party, if unsuccessful, to perform an act or refrain from doing so" (Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 A.D.3d 83, 89 [2d Dept 2011]). In this case, Sand Land seeks both declaratory relief and relief pursuant to CPLR Article 78. The DEC, through its counterclaims, seeks declaratory relief, enforcement of the terms of the 2013 renewal permit, together with an order enjoining the importation of materials into the LOM and the sale of stockpiled materials.
The DEC argues that the May 2020 second modified permit was annulled by operation of law when the Court of Appeals annulled the 2019 renewal and June 2019 modified permits, since there can be no modification of a non-existent permit. The DEC notes that the Court of Appeals annulled all of Sand Land's "permits" which, according to the DEC, includes the May 2020 modified permit. The DEC points to the May 2020 second modified permit, which expressly states that "[a]ll mining activities at the site will continue in accordance with the permit modification issued on 6/5/2019" (NYSCEF No. 78, page 12). The DEC argues that the May 2020 second modified permit was dependent on the June 2019 modified permit and, once the 2019 modification was struck down by the Court of Appeals, the May 2020 second modified permit cannot be the subject of administrative proceedings under the Uniform Procedures Act (UPA) (see ECL 70-0115 and 6 NYCRR 621.13).
The DEC argues that Sand Land's authority to mine is not derived from the May 2020 second modified permit, but rather from the annulled 2019 permits, and that the 2020 modified permit simply prohibited the receipt and use of vegetative waste for reclamation purposes.
The DEC also argues that the provisions set forth in ECL 70-0115 and 6 NYCRR 621.13 (a) for modification, suspension, revocation of permits, are inapplicable since the May 2020 second modified permit was not modified, revoked, or suspended by the DEC, but rather, was annulled by the Court and by operation of law. Finally, the DEC argues that the 2013 permit became the operative permit upon the Court of Appeals' annulment of the 2019 renewal and modified permits.
The DEC argues, as it did in support of its application seeking a preliminary injunction, that Sand Land should be judicially estopped from arguing that the May 2020 second modified permit applies based on a prior inconsistent position Sand Land is alleged to have taken in a motion to dismiss a 2021 complaint (see 101CO, LLC et al. v. Sand Land Corporation et al., Index No. 905127-21 [Albany County Sup Ct] ["Citizen Suit"]). The Court disagrees, since Sand Land's position in the Citizen Suit was not sufficiently definite to render Sand Land's position in this matter inconsistent (see Dato Jewelry v Western Alliance Ins. Co., 238 A.D.2d 193, 193 [1st Dept 1997], lv denied 90 N.Y.2d 805 [1997]; Inter-Power of NY v Niagara Mohawk Power Corp., 208 A.D.2d 1073, 1075 [3d Dept 1994]).
The DEC submits the supplemental affidavit of Catherine A. Dickert, sworn to on "June 20, 2013[sic]" (NYSCEF No. 79). Ms. Dickert, the Director of the DEC's Division of Mineral Resources, attests that a permanent injunction enjoining Sand Land's violations of the 2013 renewal permit is needed to assure the proper reclamation of the mine and to prevent a risk of environmental harm. Ms. Dickert states that DEC's April 2023 site inspections revealed, among other things, the importation of stone which was mixed with materials excavated from below 160 feet amsl. Ms. Dickert attests that Sand Land's actions makes reclamation much more difficult, and the unpermitted importation of materials into the LOM risks environmental violations, since sand mines can be the destination points for contaminated waste. The DEC concludes that, in applying the 2013 renewal permit, Sand Land exceeded the depth of mine restriction set forth in the 2013 renewal permit by mining below 160 feet amsl, by selling stockpiled sand excavated below 160 feet amsl, and by importing materials into the LOM without authorization.
Ms. Dickert attests that, pursuant to Condition 6 of the 2013 renewal permit's MLUP, Sand Land is prohibited from processing and selling sand mined from below 160 feet amsl and, pursuant to Condition 1, Sand Land is prohibited from importing materials into the Life of Mine without authorization. Condition 1 provides that "[a]ll activities authorized by this permit must be in strict conformance with the approved plans submitted by the applicant or applicant's agent as part of the permit application. Such plans were approved by Mark Carrara on 11/5/13 and consist of the following items: a topographic survey prepared by David Fox" (NYSCEF No. 61, page 4). Although unclear, the Court notes that the language set forth in the Notice of Violation and the DEC's submissions indicate that part of the DEC's complaint includes allegations of Sand Land's importation and mining of materials from the stump dump, regardless of the depth.
In reply, Sand Land argues that the May 2020 second modified permit was not annulled by the Court of Appeals Decision and, since there is no judgment annulling the May 2020 second modified permit, its revocation, suspension, or modification is subject to the due process protections set forth in the UPA (see ECL 70-0115 and 6 NYCRR 621.13). Sand Land argues that the DEC improperly issued notices of violations based on the 2013 renewal permit without first obtaining a determination under the UPA to suspend or revoke the 2020 second modified permit. Sand Land also notes that the Court of Appeals Decision in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation held that, since ECL 23-2703 (3), has been held to apply to both new permit applications and applications for modification and renewal, that each application and corresponding permit stands on its own, thus rendering the May 2020 second modified permit subject to the UPA.
With respect to Sand Land's current activities, Sand Land submits the affidavit of its president, John B. Tintle, who attests that Sand Land ceased operation as a result of the Court of Appeals issuing its Decision in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, and it has not excavated or imported materials as provided for under the May 2020 second modified permit. With respect to the April 18, 2023 Notice of Violation, which alleges that material excavated from below 160 feet amsl was comingled with imported material, Mr. Tintle attests that any comingling occurred prior to the Court of Appeals' Decision and that, within one day of that Decision, Sand Land ceased excavating, importing, and selling stockpiled materials. The DEC then requested and was provided with an updated topographical survey, which showed remaining reserves and stockpiled material in the stump dump above 160 feet` amsl. Mr. Tintle states that, based on the new survey, Sand Land resumed operations on April 10, 2023, but ceased operations the same day after being informed that the DEC interpreted the MLRL as requiring Sand Land to identify the depth at which all the materials stockpiled were excavated. According to Mr. Tintle, the only material that was sold was stockpiled material that was excavated from the stump dump. With respect to the April 27, 2023 Notice of Violation, which alleges that Sand Land impermissibly imported material to the mine, which it comingled with material excavated from the stump dump and sold, Mr. Tintle points to the 2016 Order on Consent, for the proposition that the stump dump is, in fact, part of the LOM, and that any other imported material was done so prior to the Court of Appeals Decision (see NYSCEF No. 85).
Sand Land argues that the DEC is bound by the 2016 Order on Consent, which resolved alleged violations issued by the DEC to Sand Land in 2016 (see NYSCEF Nos. 82 and 83). The Order on Consent provided that Sand Land would, among other things, revise the MLUP so that the stump dump would be included in the LOM (see NYSCEF No. 81, ¶51). Sand Land argues that it fulfilled its obligation under the Order on Consent and submitted the revised MLUP in January 2017.
Sand Land also argues that any challenge to the DEC's "Notice of Complete Application, dated March 15, 2019" is untimely (NYSCEF No. 81, ¶ 55). While Sand Land sites to pages 357 and 358 of the record, that document is found at pages 368 and 369 (see NYSCEF No. 78, pages 110-11). That document classifies the proposed permit modification to allow deepening of the existing mine by 40 feet as a Type I action for SEQRA purposes.
Sand Land also submits the affidavit of licensed geologist Samuel W. Gowan, Ph.D., PG, CPG, a co-founder of Alpha Geological Services DPC (Alpha), who attests that, in 2017, as part of the compliance required by the 2016 Order on Consent, Alpha submitted to the DEC a revised MLUP and reclamation plan, which included the area of the stump dump within the LOM (see NYSCEF No. 86, pages 14-62). In 2018, Alpha performed a reserve analysis. Both the MLUP and the reserve analysis established that there was adequate reserves that would permit Sand Land to continue mining (see NYSCEF No. 86, page 62). In 2019, Alpha provided the DEC with calculations of the material available on site for reclamation and, according to Mr. Gowan, the DEC agreed that sufficient material was available on site for reclamation. Based on his review of the March 2023 topography survey (see NYSCEF No. 77, page 38), Mr. Gowen opines that there are "substantial remaining reserves relative to those reserves identified in 2018. Furthermore, there are additional reserves within the 50-acre mine property that were not identified in [Alpha's] prior reserve analysis" (NYSCEF No. 86, ¶ 7).
In the alternative, Sand Land argues that if the 2013 renewal permit is determined to be in effect, then the DEC has not established ongoing or threatened violations. In fact, Sand Land states that it has limited its activities to comply with the 2013 renewal permit, and its only activity is removal of material from the stump dump, which is an area included within the LOM as per the 2016 Order on Consent. Sand Land argues that, at all times leading up to the Court of Appeals Decision in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, it mined as authorized under the 2019 permits, and there is no evidence that Sand Land mined under the 2019 or 2020 permits after the issuance of the Court of Appeals Decision or that it is threatening to do so. Sand Land insists that its only activity is removal of material from the stump dump, which is included in the LOM, and which the DEC has previously maintained is not mining. Finally, Sand Land notes that it has provided the DEC with information about on-site materials for reclamation together with financial security.
In first addressing the relief sought by the petition, this Court holds that the Court of Appeals' determination effectively annulled the May 2020 second modified permit. The effect of annulling a permit is that it "cease[s] to exist" (Matter of Fornaby v Feriola, 18 A.D.2d 215, 218 [2d Dept 1963]; see Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 169 A.D.3d 1182, 1185 [3d Dept 2019] ["To that end, a void thing is no thing. It changes nothing and does nothing. It has no power to coerce or release. It has no effect whatever. In the eye of the law it is merely a blank, the same as if the types had not reached the paper"] [internal quotation marks and citations omitted]; Black's Law Dictionary, Annulment [11th ed 2019]["The act of nullifying or making void"]). Since the 2020 second modified permit derives its mining authority from the 2019 annulled permits, this Court agrees with the DEC that the May 2020 second modified permit is annulled by operation of law.
The Court is not persuaded by Sand Land's argument that ECL 23-2703 (3), which bars the DEC from processing any application for a new, renewed, or modified mining permit in certain areas" 'if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined'" (Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 N.Y.3d at 211, quoting ECL 23-2703[3]), renders the 2020 second modified permit viable. The June 2019 modified permit - which authorized mining to a depth of 120 feet amsl - was annulled and, since the DEC lacked the authority to issue either the 2019 or 2020 permits without first deferring to the Town for zoning purposes, its determinations with respect to those permits were nullities (see Abiele Contr. v New York City School Constr. Auth., 91 N.Y.2d 1, 10 [1997]). As such, the Court finds that Sand Land's authorization to mine under the May 2020 second modified permit had no independent existence apart from the June 2019 modified permit and, since the May 2020 second modified permit was annulled as a matter of law, the Court also finds that the due process protections set forth in UPA do not apply (see ECL 70-0115 and 6 NYCRR 621.13).
In so holding, the Court finds that Sand Land is presently operating pursuant to the 2013 renewal permit, which permits the mining of 31.5 acres of a 50 acre site with the lowest bottom elevation of the mine to reach 160 feet amsl, with one caveat (see NYSCEF Nos. 61, 77, pages 8-13; and 78, page 246). The 2013 renewal permit was modified by the 2016 Order on Consent which included the stump dump area in the LOM (see NYSCEF No. 83). Accordingly, while Sand Land is bound by and precluded by the 2013 permit from mining below 160 feet amsl, pursuant to the 2016 Order on Consent, the stump dump remains part of the LOM.
In her 2019 affidavit, Ms. Dickert attests that, with respect to Sand Land's renewal permits issued between 1988 and 2013, the "Stump Dump was located within the Life of Mine at all times, but was not reflected in the permits or reclamation plans since it was Affected [sic] prior to the effective date of the ECL and was surrounded by actively mined areas" (NYSCEF No. 43, ¶5).
Based on the foregoing, the first cause of action set forth in Sand Land's petition, seeking a declaration that the May 2020 second modified permit is the controlling mining permit is denied. Likewise, the second cause of action set forth in Sand Land's petition, seeking a declaration that it may to remove for sale the stockpiled materials excavated from below 160 feet amsl, is also denied.
The Court reaches a different conclusion with respect to Sand Land's third cause of actionchallenging the DEC's issuance of the April 2023 Notices of Violation based on the terms and conditions of the 2013 renewal permit. Because the LOM set forth in the 2013 renewal permit was modified by the 2016 Order on Consent, the Court grants Sand Land's third cause of action only insofar as the allegations set forth in the notices of violation, issued by the DEC in 2023, are based on the DEC's determination that the stump dump is outside the LOM, and Sand Land's third cause of action is otherwise denied.
Finally, the Court denies Sand Land's fourth cause of action, which is a specific challenge to the DEC's April 18, 2023 Notice of Violation insofar as it requires Sand Land to establish that stockpiled materials are not required for reclamation as a condition of operating under the 2013 renewal permit. As a condition to the 2013 renewal permit,
"[p]rior to the excavation of previously undisturbed areas, topsoil and overburden shall be stripped, stockpiled separately, and used for reclamation of mined areas. These stockpiles shall be seeded to establish a vegetative cover within 30 days, or as soon as practicable following their construction. The permittee shall locate all overburden stockpiles within the permitted area of the approved Life of Mine. Sufficient quantities of topsoil must be retained on the site for use in reclamation, unless prior approval is granted by the Department"(NYSCEF No. 61, page 5).
Furthermore, pursuant to the 2013 renewal permit, the mining site and its records are subject to inspection to determine if the permittee is in compliance with the 160 feet amsl limitation as set forth the permit (see NYSCEF No. 61, page 5). The DEC has a legitimate interest in ensuring that stockpiled materials are not materials excavated from below 160 feet amsl and that there are sufficient materials available for reclamation. Accordingly, the Court finds a rational basis for the requirement, set forth in the April 18, 2023 Notice of Violation, that Sand Land provide additional reclamation surveying. Lastly, based on the DEC's interest in ascertaining the depth from which the stockpiled materials were excavated and the amount of material that is available for reclamation, the Court denies Sand Land's request for an order preventing the DEC from prohibiting Sand Land from removing stockpiled material for sale.
In addressing the DEC's counterclaims, based on the analysis above, the Court grants DEC's first counterclaim seeking a declaratory judgment holding that the 2013 renewal permit governs mining at the site, with the caveat that the 2013 permit was modified by the 2016 Order on Consent such that the stump dump is included the LOM (see NYSCEF No. 83). However, based on the record before it, which contains conflicting opinions as to whether Sand Land is in violation of the 2013 renewal permit, as modified by the 2016 Order on Consent, the Court denies DEC's second and third counterclaims seeking enforcement. Indeed, some of the DEC's complaints involve Sand Land's excavation of materials from the stump dump, based on the DEC's determination that the stump dump is outside the LOM. Furthermore, contrary to the DEC's argument, the record contains conflicting evidence regarding whether Sand Land has exceeded the 160 feet amsl depth of mine restriction set forth in the 2013 renewal permit, and whether there is additional material that can be mined as well as material available for reclamation.
ECL 71-1307 provides an enforcement mechanism for violations of Article 23, and penalties are assessed by the Commissioner "after a hearing or opportunity to be heard" (id.; see Matter of Carlson Assoc. v Jorling, 204 A.D.2d 540, 540 [3d Dept 1994], lv dismissed 83 N.Y.2d 991 [1994]).
In his May 12, 2023 affidavit, Matthew Conlon, a Mined Land Reclamation Specialist, attested that, on April 10th and April 13th, he observed piles of crushed stone, concrete, and sand at the mining site. Mr. Conlon states that, on April 10th, Mr. Tintle told him that previously backfilled sand excavated from the stump dump was mixed with sand mined under the June 2019 modified permit (see NYSCEF No. 28). During the April 13th inspection, Mr. Conlan "did not see sand from below the final floor elevation of the 2013 permit -160 feet amsl - being processed from the 2013 Permit LOM" (NYSCEF No. 28, ¶16).
Accordingly, it is hereby
ORDERED that Sand Land's first, second, fourth, and fifth causes of action, as set forth in petition, seeking CPLR Article 78 and declaratory relief that 1) the May 2020 second modified permit is the controlling permit at the site; 2) Sand Land may remove for sale the stockpiled materials at the mine that were excavated from below 160 feet amsl; 3) DEC's requirement that Sand Land perform reclamation studies violates lawful procedure, is affected by errors of law, arbitrary and capricious, irrational, and an abuse of discretion, are denied and dismissed; and 4) the DEC is equitably estopped from prohibiting Sand Land from removing for sale stockpiled materials, is denied, and it is further
ORDERED that Sand Land's third cause of action, as set forth in the petition, is granted only to the extent that the violations alleged in the Notices of Violation dated April 18, 2023 and April 27, 2023 are based on DEC's determination that the stump dump is outside the LOM, and Sand Land's third cause of action is otherwise denied; and it is further
ORDERED that the DEC's first counterclaim, seeking a declaration that the 2020 second modified permit was annulled by operation of law, based on the Decision in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, such that Sand Land is now operating under the 2013 reviewal permit, is granted only insofar as this Court declares that the 2013 renewal permit, as modified by the 2016 Order on Consent, governs mining at the site, and the DEC's remaining counterclaims are otherwise denied.
This constitutes the Decision and Order of the Court, which will be uploaded to the New York State Court's Electronic Filing System (NYSCEF). Counsel is advised of 22 NYCRR 202.5-b (h) (2) relating to notice of entry.
SO ORDERED AND ADJUDGED
Papers Considered:
NYSCEF Documents Numbered: 1-13, 15-36, 43-44, 61, 71, 76-87, 96, 99-104.