In prior posts, we discussed sand mining in Southampton, Pine Barrens Credits and the State Environmental Quality Review Act (“SEQRA”). A recent case out of Suffolk County touches on all three areas, so we decided to write a blog post on it.
The case, Matter of the Application of the Long Island Pine Barrens Society, et al. v. The Central Pine Barrens Joint Planning & Policy Commission and Westhampton Property Associates, Inc., 2014 NY Slip Opinion 30560(U)(Supreme Court, Suffolk County, February 27, 2014), affirmed, 138 AD3d 996 (2d Dept. 2016), involved the granting of an “extraordinary hardship” exemption by the Pine Barrens Commission to Westhampton Property Associates, (“WPA”). WPA wanted to expand its 111-acre sand mine partially located in the Core Preservation Area (68.07 acres) and partially located in the Compatible Growth Area (46.93 acres). The sand mine had been operating prior to 1981, and mining activities occurred at parts of the site since 1957.
The sand mine held permits from the New York State Department of Environmental Conservation (NYSDEC), which limited the depth of the mine to 45 feet above sea level. The mine was approaching this limit and wanted to be able to dig down to 26 feet above sea level. The proposed depth would be about six feet above the groundwater table. This change in depth is considered an expansion of the pre-existing mining use and is therefore considered new development under the Pine Barrens Comprehensive Land Use Plan. Therefore, in addition to obtaining a permit modification from the NYSDEC, WPA was required to obtain approval from the Pine Barrens Commission because it was partially located in the Core Preservation Area. In order to obtain this approval, WPA needed to demonstrate that it was entitled to an “extraordinary hardship” exemption under the Long Island Maritime Reserve Act of 1993 (the “Pine Barrens Act”), codified at Environmental Conservation Law (“ECL”) 57-0101 et seq.
Establishing An Extraordinary Hardship Exemption
ECL 57-0121(10) sets forth the criteria that an applicant must show to establish an “extraordinary hardship” exemption. The applicant must demonstrate that “the particular physical surroundings, shape or topographical conditions of the specific property involved would result in an extraordinary hardship, as distinguished from a mere inconvenience…” This requires providing evidence “that the subject property does not have any beneficial use if used for its present use…and that this inability to have a beneficial use results from unique circumstances peculiar to the subject property which: (i) Do not apply to or affect other property in the immediate vicinity; (ii) Relate to or arise out of the characteristics of the subject property rather than the personal situation of the applicant; or (iii) Are not the result of any action or inaction by the applicant or the owner or his or her predecessors in title including any transfer of contiguous lands which were in common ownership on or after June 1, 1993.”
The Pine Barrens Commission’s Review Of WPA’s Application For An Exemption
WPA submitted its application to extend the depth of its mining operations to the Pine Barrens Commission in November 2011. It also provided for a conservation easement that would preserve the property as open space after the mine was ultimately closed and restoration activities were completed. The Pine Barrens Commission first requested lead agency status to conduct the SEQRA review, which would be coordinated with the NYSDEC and other interested municipal agencies. The Commission also prepared a draft report in January 2012, in which it analyzed all potential environmental impacts and applied the “extraordinary hardship” criteria to the application. This was followed by a series of three public hearings. After considering all of the documentary evidence and the testimony at the hearings, the Pine Barrens Commission issued a negative declaration in October 2012, and adopted a resolution granting WPA the “extraordinary hardship” exemption.
The Pine Barrens Society Challenges The Exemption
The Pine Barrens Society commenced an Article 78 proceeding to challenge the decision of the Pine Barrens Commission. The trial court rejected the Society’s arguments and dismissed the petition. The Court first looked at whether the Pine Barrens Society, its Executive Director and two members of its Board of Directors had standing to bring the proceeding. The trial court found that none of the individual petitioners had standing because none of them alleged they lived in close proximity to the project and their claims of injury were general in nature. One individual claimed to be a teacher who used the Pine Barrens to help educate and was also an avid hiker. The Executive Director claimed he visited the Pine Barrens often and used them to teach and motivate the public about drinking water protection. The trial court then determined that since none of the members of the Pine Barrens Society had standing, the organization lacked standing. Although the finding of lack of standing was itself grounds for dismissal, the trial court went on to determine the case on the merits. It found that the Pine Barrens Commission gave the application the “hard look” required by SEQRA and that its determination was not arbitrary and capricious.
The Pine Barrens Society appealed the decision to the Appellate Division. The appellate court disagreed with the trial court and found that the Pine Barrens Society and its Executive Director had standing. The appellate court noted the Executive Director used and enjoyed the Pine Barrens to a greater degree than most members of the public and the threatened injury of development in the Core Preservation Area was in the zone of interest covered by the Pine Barrens Act. The appellate court also found that the Pine Barrens Society had standing since a member had standing and the interests it raised in the action were germane to its purposes. The ruling finding standing, however, was a pyrrhic victory as the appellate court agreed with the trial court on the merits.
The appellate court found that the Pine Barrens Commission’s decision to grant the “extraordinary hardship” exemption was not arbitrary, capricious or an abuse of discretion. The appellate court found that the decision was consistent with the purpose of the Pine Barrens Act, that it would not result in substantial impairment of resources in the Core Preservation Area, and the circumstances were peculiar to the site and was not self-created or due to action or inaction of the property owner.