Last month, the State’s highest court, the Court of Appeals, upheld the Appellate Division’s decision annulling the New York State Department of Environmental Conservation (DEC) issuance of permits to Sand Land Corporation (“Sandland”) for renewal and expansion of sand mining operations at a 50-acre site in Southampton, New York and remanded the matter back to the DEC. The site, owned by Sandland, is a pre-existing sand mining site.
In Town of Southampton v. New York State Department of Envtl. Conservation, the question before the Court of Appeals was whether NYS Environmental Conservation Law (“ECL”) §23-2703(3) prohibits the processing of applications in Suffolk County for renewal and modifications where local zoning ordinances prohibit mining uses.
ECL §23-2703(3) Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criterion having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer.
In 2019, the DEC interpreted ECL 23-2703(3) to apply to new applications only- not to expansion of existing mines. In March 2019, DEC issued both a renewal permit to allow mining on 34.5acres of the 50-acre site and a modification permit allowing an increase in depth of mining. The Town of Southampton, several neighboring landowners, and civic and environmental groups, commenced an Article 78 against Sandland and the DEC seeking to annul Sandland’s mining permit, because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.
Although the Court of Appeals agreed that ECL 23-2703(3) must be read to recognize Sandland’s constitutionally protected rights as a legal pre-existing nonconforming use, the Court did not extend that right to mine to an indefinite depth. The Court found that “the dipositive question in determining whether the expansion that Sandland seeks is within the limits of its prior non-conforming use is whether Sandland manifested an intent to mine the additional acres and the expanded depth it sought in its permit applications, and the extent to which the Town recognized Sandland’s use of the parcel.”
The Court found in this case, there is no determination of the extent of Sandland’s prior non-conforming use and remanded it back to the Supreme Court to remand back to the DEC for further proceedings. Upon remand, the DEC must ascertain from the Town, whether Sandland’s proposed use is with the scope of its prior nonconforming use.
Takeaway: The State’s mining law limits the DEC on Long Island and will only permit Sandland to mine within the scope of its prior nonconforming use.