This past week the NYS Department of Environmental Conservation (DEC) participated in a backroom assault on its own Climate Leadership and Community Protection Act (CLCPA). The DEC, instead of protecting the public interest, did the bidding of the fossil fuel industry by proposing to weaken the CLCPA by changing the method of measuring greenhouse gas emissions. The backlash from across the state to this secret deal was swift. The CLCPA is safe–for now.
This is no surprise to those of us on the East End who have fought the DEC permit granting a major expansion to the Sand Land mine through the courts. We have already seen the penchant of the State DEC to exalt special interests over the environment through a backroom deal. This case was recently decided by the Court of Appeals, the state’s highest court, in favor of the Town of Southampton and other community petitioners.
In Sand Land, which is located in a residential zone and over the East End’s most sensitive and deepest groundwater recharge area, the DEC violated both the State Environmental Conservation Law and the Southampton Zoning Code by illegally granting a massive expansion of Sand Land’s mining use. The Town sued the DEC and the matter went all the way to the Court of Appeals. The Court ruled that the DEC illegally granted the mining expansion permit in violation of state law and the Town’s authority to determine whether the expansion of the mine was permitted under the Town Zoning Code. The Court held that the determination is to be made solely by the Town, not the DEC.
This was a resounding victory for the environmental community. The Town of Southampton and Supervisor Jay Schneiderman, in particular, are to be congratulated for securing this landmark decision from the state’s highest court. Both home rule and our precious drinking water were the true winners.
Apparently, the DEC isn’t the least bit chastened by the smackdown from a unanimous decision from the Court of Appeals. Under the Court’s decision, the DEC’s job was to simply write a letter to the Town of Southampton and ask the Town whether or not the proposed expansion would be permitted under Sand Land’s prior non-conforming use. It is a simple “yes or no” question.
Instead, by letter to the Town dated March 11, 2023, the DEC continued to do Sand Land’s bidding by again interfering with the Town’s authority over prior non-conforming uses, as if the Town’s role was only to assist the DEC. The DEC ignored the Court determination that this is a home rule determination reserved to the Town.
In fact, the Town, in its reply brief to the State Court of Appeals, has already answered the question posed by the Court. In its brief, the Town stated, “Moreover, those cases make clear that, to extend a non-conforming mining use beyond the area actually mined, the miner must manifest its affirmative intent to do so when mining the remaining parcel was legal. “Nothing 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 upzoning in 1972 upzoning 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 pre-existing non-conforming 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.”
The Court of Appeals concluded, “Should Sand Land disagree with the determination of the scope of its prior non-conforming use, it can litigate that issue in the proper forum for resolving local zoning disputes.”
The DEC letter to the Town clearly went beyond its authority under the Court of Appeals decision. The Town need only answer the “yes or no” question posed by the statute and the Court of Appeals. “Is the proposed expansion within the scope of its prior non-conforming use?”
The Town needs only to conclude this process by again informing the DEC of the position they have maintained throughout the court case. The prior non-conforming use does not extend to the area of their proposed expansion. As the Town stated in its own legal brief, the answer must be “no”.