State law regulating mining doesn’t overrule local town zoning designed to regulate land use. That was the crux of an appellate court decision rendered earlier this month in the case of the people v Wainscott Sand and Gravel Corp, operators of the Sand Land mine in Noyac.
The decision overturns a 2015 dismissal of town code violations from 2013 alleging Sand Land violated its certificate of occupancy by conducting operations outside the realm of mining. The determination lists the processing of trees, brush, stumps, leaves, and other clearing debris into topsoil and mulch, and the dumping of construction debris including concrete and asphalt at the mine.
The defendants sought to dismiss the charges, arguing that the New York State Mined Land Reclamation Law preempted the Town of Southampton’s regulatory authority, specifically the zoning board of appeals’ determination that Sand Land violated its CO.
It does, when the activity at a mine is mining. When it isn’t, not so much.
Still, in 2015, Southampton Town Justice Court Judge Barbara Wilson granted the dismissal.
The town appealed.
In the April 5 decision, members of the Supreme Court appellate division took note of prior litigation involving the mine, stating, “The courts, without reference to state preemption of local land use management via the zoning authority, upheld the ZBA’s determination that the certificate of occupancy for defendants’ sand mining and extraction operation limited defendants’ activities accessory thereto to the preexisting nonconforming use of the receipt of trees, brush, stumps, leaves and other clearing debris onto the property but not the processing of same into topsoil or mulch, and entirely disallowed the receipt and processing of road construction debris.”
In a letter to the town board last week, Bob DeLuca of the Group for the East End congratulated the town for the successful appeal. For almost a decade, GEE and other environmental and civic groups have alleged illegal dumping at the site. They called a recent report listing an array of toxins found in court-ordered well samples “the smoking gun.” (Visit www.indyeastend.com to see Indy’s March 14 cover story for more about the discovery.)
DeLuca continued, “As the board is aware, and as the Appellate Court has now unanimously affirmed, the town’s local zoning authority is in no way preempted by New York State mining law when it comes to the processing of trees, brush, stumps, leaves, and other clearing debris into topsoil or mulch, or allowing road and/or construction debris (including concrete and asphalt) to be deposited and processed at the mine premises . . .
“None of the above-outlined activities comply with the facility’s certificate of occupancy and all such activities should have long-ago been put to an end. Sadly, in the intervening years of delay, we now know that the aquifer beneath the site has experienced substantial contamination that in all likelihood could have been prevented. We remain hopeful that such contamination has not impacted private wells, but that remains to be seen as the ongoing Suffolk County Department of Health Services well survey is completed.”
DeLuca found the language of a case cited in the decision most compelling. The decision in the “Matter of Gernatt Asphalt Prods. v. Town of Sardinia,” he said, “unequivocally states that ‘a municipality is not obligated 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 . . .”
“This simple but compelling premise lies at the heart of the community’s longstanding outrage and struggle for compliance at the Sand Land facility,” DeLuca asserted. “To that end, and with the decision of the Appellate Court in hand, we urge the town to move swiftly to reengage its enforcement authority and assert its rightful jurisdiction to protect both the future of its natural resources as well as the health and safety of its residents.”