Located in the hamlet of Bridgehampton, Town of Southampton, a sand mine operation owned by Sand Land Corporation and run by Wainscott Sand & Gravel Corporation (“Sand Land”) had its zoning changed by the Town in 1972 from G-Industrial to CR Country Residence, now CR200, constituting five-acre residential zoning. Upon the zone change, the sand mine became a pre-existing nonconforming use. But now, this sand mine finds itself located in an affluent residential neighborhood with assessed values ranging from $1.5 million to $3.8 million. The sand mine also abuts the posh Golf at the Bridge, (now known as The Bridge Golf Club), a private golf and country club. Naturally, the activity at the sand mine creates truck traffic, noise, dust and odors normally associated with such businesses, which is at odds with the residential and private golf club uses nearby. However, the expansion of Sand Land’s business activities to include a mulching operation and concrete processing facility incited the neighbors to challenge the pre-existing use.
Sand Land v Southampton Town Zoning Board of Appeals
Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix Concrete v. Town of Southampton et al. Therefore, there is no other location in the Town where Sand Land could move and legally operate its mining operation.
In 2005, the neighbors (funded in part by the Golf Club owners) brought a Town Law §268(2) action to enjoin Sand Land from certain uses of its property. While the action was still pending, Sand Land sought a pre-existing certificate of occupancy from the Town Chief Building Inspector. In 2011, the Chief Building Inspector issued a pre-existing certificate of occupancy for (i) the operation of a sand mine, (ii) the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch and (iii) the storage, sale, and delivery of sand, mulch, topsoil, and wood chips. The Chief Building Inspector denied that Sand Land had a pre-existing use to receive and process concrete, asphalt, pavement, brick, rock and stone into concrete blend. The neighbors appealed the Chief Building Inspector’s determination to the Zoning Board of Appeals.
The Zoning Board found that Sand Land was entitled to the pre-existing sand mine use including the storage, sale and delivery of sand and receiving trees, brush, stumps, leaves, and other clearing debris as a pre-existing accessory use to the mining operation. However, the ZBA found Sand Land was not entitled to a pre-existing certificate of occupancy for (i) the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and (ii) the storage, sale and delivery of mulch, topsoil, and wood chips. The Zoning Board found those uses to be new and an impermissible expansion of the nonconforming mining operation, stating, “there is no case law or holding to date that finds the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch and the storage, sale and delivery of mulch, topsoil and wood chips to be a part of, or a natural outgrowth of, sand mining” citing, McDonald v. Zoning Board of Appeals of the Town of Islip, 31 A.D.3d 642 (2d Dept. 2006).
Southampton Town Zoning Board Prevails
Sand Land sued the Zoning Board. In a decision dated February 18, 2014, the trial court overruled the Zoning Board and re-instated the decision of the Chief Building Inspector. Sand Land Corp. v Zoning Board of Appeals, 43 Misc. 3d 1202 (Sup. Ct. Suffolk Co. 2014). The Zoning Board and the neighbors appealed. A few weeks ago, the Appellate Division found “it was reasonable for the ZBA to conclude, in effect, that these “new uses” constituted a “significant change” from the nonconforming sand mine operation and the accessory receipt of various yard debris. Accordingly, the Supreme Court erred in annulling the ZBA’s determination.” In the Matter of Sand Land Corp. v Zoning Board of Appeals, 2016 Slip Op. 02372 (Appellate Division, 2d Dept March 30, 2016).
Is this Truly a Win for the Town and its Residents?
The ZBA can celebrate its reasoned determination being upheld, but the result of its determination created a practical difficulty within the Town. Sand Land may choose not to accept delivery of trees/brush, stumps, leaves, and clearing debris, since it is not permitted to process and sell it. Numerous East End businesses used Sand Land as the site where they brought their refuse. According to the ZBA determination, even the Town of Southampton itself used to bring debris to the site. This forces local landscaping and other businesses in the Town to travel farther to find a permitted receiving area to dispose of their refuse. Indeed, Newsday reported Supervisor Jay Schneiderman stating, in response to the Appellate Division’s decision, “there is clearly a need to process yard waste” and that “he is trying to find ways to expand the capacity of the town’s three disposal sites to accommodate the waste.”
This is a perfect example of the difficulty with certain preexisting nonconforming uses. Although considered a nuisance by neighbors, they can be invaluable to a different faction of the community; in this case the landscaping business community, which plays an important role in keeping the Hamptons beautiful!