HomeMy WebLinkAboutJ - 11 Route 13 Rocks AppealFILED: APPELLATE DIVISION - 3RD DEPT 11/21/2023 10:13 ] CV-2:3-0:369
NYSCHF, DOC. NO. 1.0 RECEIVED NYSCEF: 11/21/202
To Be Artitred By:
Timothy N. McMahon
"Time Requested: 15 Minutes
Cortland County Clerks Index No. EF2 2-193
1jew 'Orh 6upreme Court
APPELLATE DIVISION — THIRD DEPARTMENT
RT 13 ROCKS LLC,
PlaintiJ/=AP1�ellarrt,
agairnsi
TOWN OF CORTLANDVILLE and
THE TOWN OF CORTLANDVILLE TOWN BOARD,
and THE TOWN OF CORTLANDVILLE PLANNING BOARD,
Defendants-Re.sporndents.
BRIEF FOR PLAINTIFF -APPELLANT
O/'Coumel:
Suzanne M. Messer
Timothy N. McMahon
BOND, SCHOENECK & KING PLLC
Attorneys./or Plaintil/=Appellant
One Lincoln Center
110 West Fayette Street
Syracuse, New York 13202
315-218-8000
tmcmahon((t;bsk.com
(212)719-0990
appealS@)phpny.com
Docket No.
CV 23-0369
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES i i
QUESTIONSPRESENTED......................................................................................I
PRELIMINARYSTATEMENT...............................................................................2
STATEMENTOF FACTS........................................................................................3
ARGUMENT............................................................................................................. 6
POINT I
THE SUPREME COURT LACKED SUBJECT MATTER
JURISDICTION TO ADDRESS THE MERITS...............................................6
POINT II
EVEN ASSUMING, ARGUENDO, THAT THE SUPREME
COURT MAINTAINED SUBJECT MATTER JURISDICTION
TO REVIEW THE MERITS, THE COURT ERRED IN
DISMISSING THE SECOND CAUSE OF ACTION, AND IN
FAILING TO DECLARE THAT PLAINTIFF'S PROPOSED
MINING ACTIVITIES CONSTITUTED LAWFUL
NONCONFORMINGUSES..............................................................................9
A. Nonconforming Uses.............................................................................9
B. Matter of Red Wing Props., Inc v Town of Rhinebeck ........................10
C. Plaintiff's Mining Activity Constitutes a Prior
NonconformingUse............................................................................13
D. The Supreme Court's Decision on the Second Cause of
Action..................................................................................................17
1
POINT III
EVEN ASSUMING, ARGUENDO, THAT THE SUPREME
COURT MAINTAINED SUBJECT MATTER JURISDICTION
TO REVIEW THE MERITS, THE COURT ERRED IN
DISMISSING THE THIRD CAUSE OF ACTION, AND IN
FAILING TO DECLARE THAT LOCAL LAW NO. 1 IS
PREEMPTEDBY THE MLRL........................................................................22
CONCLUSION........................................................................................................24
PRINTING SPECIFICATIONS STATEMENT.....................................................25
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Arntzen v Cite of New York,
209 AD3d 404 [ 1st Dept 2022]............................................................................ 8
Buffalo Crushed Stone, Inc. v Town of Cheektowaga,
13 NY3d 88 [2009]......................................................................................passim
Caffrey v N. Arrow Abstract & Settlement Servs., Inc.,
160 AD3d 121 [2d Dept 2018].............................................................................8
Glacial Aggregates LLC v Town of Yorkshire,
14 NY3d 127 [2010]....................................................................................passim
Hawkins v Town of Preble,
145 AD2d 775 [3d Dep't 1988]..........................................................................23
Jones v Town of Carroll,
15 NY3d 139 [2010]...........................................................................................17
Lacks v Lacks,
41 NY2d 71 [1976]...............................................................................................7
Manhattan Telecom. Corp. v H & A Locksmith, Inc.,
21 NY3d 200 [2013].........................................................................................7, 8
Matter of 54 Marion Ave., LLC v. City of Saratoga Springs,
162 AD3d 1341 [3d Dept 2018]...........................................................................7
Matter of 999 Hempstead Turnpike, LLC v Board of Appeals
of the Town of Hempstead,
207 AD3d 716 [2d Dept 2022].............................................................................7
Matter of Cobleskill Stone Prod., Inc. v Town of Schoharie,
169 AD3d 1182 [3d Dept 2019].........................................................................10
Matter of Fr y v Village of Tarrytown,
89 NY2d 714 [1997].............................................................................................7
iii
Matter of Red Wing Props., Inc. v Town of Rhinebeck
184 AD3d 577 [2d Dept 2020], Iv denied 35 NY3d 918 [2020] .................passim
Matter of Sand Land Corp. v Zoning Bd. of Appeals of Town
of Southampton,
137 AD3d 1289 [2d Dept 2016], Iv denied 28 NY3d 906 [2016] ........................9
Matter of State of New York v Calhoun,
106 AD3d 1470 [4th Dept 2013]..........................................................................6
Matter ofsyracuse Aggregate Corp. v Weise,
51 NY2d 278 [1980].....................................................................................10,
19
Matter of Town of Southampton v New York State Dept.
of Envtl. Conservation,
39 NY3d 201 [2023]...........................................................................................20
Ranco Sand & Stone Corp. v Vecchio,
27 NY3d 92 [2016]...............................................................................................8
Rothschild v Braselmann,
157 AD3d 1027 [3d Dept 2018]...........................................................................7
Wallach v Town of Dryden,
23 NY3d 728 [2014]...........................................................................................22
Statutes
Civil Procedure Law & Rules § Article 78..............................................................12
Civil Procedure Law & Rules § 3001......................................................................12
Civil Procedure Law & Rules § 3211(a)(7)............................................................... 5
Civil Procedure Law & Rules § 3212........................................................................5
Environmental Conservation Law § 23-2701..........................................................22
Environmental Conservation Law § 23-2703(2).......................................................3
General Municipal Law §239-m..............................................................................16
Town Code § 178-2.3 [D] [ 11 ].................................................................................... 5
iv
Other Authorities
3A Ordinance Law Annotations Mines and Quarries § 2 [2023] ............................23
12 NY Jur. 2d Buildings § 315[2023].....................................................................23
43 NY Jur. 2d Declaratory Judgments § 69 [2023].................................................23
v
QUESTIONS PRESENTED':
1) Did the Supreme Court err in addressing the merits after determining
that the Plaintiff's second and third causes of action were not ripe for judicial review?
2) Even assuming, arguendo, that the Supreme Court maintained subject
matter jurisdiction to review the merits, did it err in dismissing the second cause of
action?
3) Even assuming, arguendo, that the Supreme Court maintained subject
matter jurisdiction to review the merits, did it err in dismissing the third cause of
action?
Respectfully, Plaintiff -Appellant, Rt. 13 Rocks LLC ("Plaintiff') submits that
the answers to the above questions must be "yes."
1 Plaintiff's appeal is limited to the dismissal of its second and third causes of action.
1
PRELIMINARY STATEMENT:
The Supreme Court determined that Plaintiff's second and third causes of
action were not ripe for judicial review because Plaintiff's proposed modified New
York State Department of Environmental Conservation ("DEC") permit was
pending. Despite that conclusion, which the lower court deemed to be
"determinative" and "fatal," the court then addressed the merits of Plaintiff's second
and third causes of action.
Ripeness is a matter pertaining to subject matter jurisdiction. After the lower
court concluded that the pertinent causes of action were not ripe for review, it was
then obligated to "drop its pen" as it no longer had subject matter jurisdiction to
review the merits. For this reason, this Court must reverse the underlying Order
insofar as it adjudicated the merits of this matter.
If, however, this Court determines that the lower court did not lose subject
matter jurisdiction over this controversy (after concluding that the action was not
ripe), the lower court further erred in dismissing the second and third causes of
action. For this reason, this Court must reverse the underlying Order in its entirety
and grant Plaintiff the requested declarations, i.e., that the proposed mining activities
constitute prior nonconforming uses (second cause of action) and/or that the
Defendants' Local Law No. 1 is null and void because it is preempted by the Mined
Land Reclamation Law (third cause of action).
0a
STATEMENT OF FACTS':
The Cortlandville Sand and Gravel Mine (the "Mine") has been in operation
since 1987. The Mine has operated pursuant to Mined Land Reclamation Permit #7-
1122-00043/00008 (the "Permit") issued by the DEC (R 35). Plaintiff operates the
Mine and holds the Permit (R 34, 1507).
The Mine is located above the Otter -Dry Creels Aquifer, which is the primary
source of drinking water for the City of Cortland and the Town of Cortlandville (the
"Town"). To protect the public supply wells, certain areas within the Aquifer have
been designed as Wellhead Protection Areas ("WPAs") (R 35, 881).
WPAs are regulated in Article IA of the Town of Cortlandville Code. Three
WPAs were established by the Town based on a May 2002 report issued by the
County Soil Water Conservation District ("SWCD"). The Mine is located within
WPA Zone lA and Zone 113. Two wells (the "Lime Hollow wells") are located
within WPA Zone 1 A (R 881).
In April 2017, Plaintiff applied to the DEC' to modify the Permit because it is
reaching the limits of the resources that are available to be mined under the Permit
(R 1507). The Permit requires an eight -foot separation distance between the mine
2 Citations to "R" refer to the pagination of the Record on Appeal.
3 The DEC is vested with exclusive authority over mining permits in New York pursuant to ECL
§ 23-2703(2).
3
floor and the mean water table (R 35, 361-367). This eight -foot separation distance
acts as a restriction on Plaintiff's ability to mine vertically (see id.).
The DEC was initially satisfied that the proposed expanded mining activities
would have no negative impact on the groundwater, or the drinking water supplied
by wells on the Aquifer, and on January 20, 2021, it issued a Negative Declaration
as a result of its review under the State Environmental Quality Review Act
("SEQRA")4 (R 721). However, as a result of pressure from the Town, the DEC
rescinded the Negative Declaration and issued a Positive Declaration (R 721, 885-
886). Plaintiff is now required to prepare a Draft Environmental Impact Statement
("DEIS"). A DEIS provides information about potential environmental impacts of a
proposed action, mitigation for any unavoidable impacts and provides a basis for
informed decisions (R 886).
Local Law No. 1, enacted in February 2022, prohibits all forms of Mining
within a portion of the Aquifer defined as WPA Zone IAs:
(11) All new Mines and all forms of Mining are prohibited
within Wellhead Protection Zone 1 A, except that existing Mines
in such areas may continue to operate if previously permitted,
and may expand laterally within the existing property, but may
'A Negative Declaration is issued by the DEC under SEQRA when an action is determined to not
have significant adverse environmental impacts.
5 The restriction on Mines and Mining contained in Section D.11 of Local Law No. 1 "are not
prohibited within Wellhead Protection Zone I or Zone 2, unless such uses are not authorized in
or are otherwise prohibited in the underlying zoning district, but new Mines and Mining may not
be undertaken or expanded if located within the Aquifer Protection District without a Special
Permit."
0
not expand into and below the water table in Wellhead Protection
Zone IA unless such expansion or operation below the water
table was previously permitted by the NYSDEC prior to the
exactment of this provision. (Town Code § 178-2.3 [D] [11]).
The vertical expansion of the Mine is intended to occur within the area defined
by Local Law No. 1 as WPA Zone IA. The Town's enactment of Local Law No. 1
unlawfully acts to prohibit the expansion of Plaintiff's mining operations.
On April 28, 2022, Plaintiff commenced this hybrid action and special
proceeding by way of verified complaint and petition, which asserted six (6) separate
and distinct causes of action (R 31-57). For purposes of this appeal, only two (2) of
those causes of action are pertinent. The second cause of action sought a declaratory
judgment and asserted that Plaintiff's proposed mining activities constitute prior
nonconforming uses. The third cause of action also sought a declaratory judgment
and asserted that Local Law No. 1 is preempted by the Mined Land Reclamation
Law ("MLRL").
In response, motion practice immediately ensued with the Defendants moving
to dismiss pursuant to CPLR 3211 (a)(7) and the Plaintiff cross -moving for summary
judgment pursuant to CPLR 3212 (R 89-80; 718-719).
On January 27, 2023, the Cortland County Supreme Court (Blaise, JSC)
issued a Judgment, Decision, and Order, which dismissed Plaintiff's
action/proceeding in its entirety. Of particular importance to this appeal, the court
found "the lack of resolution concerning [Plaintiff's] permit application to DEC to
61
be determinative, and fatal, to the second [and] third ... causes of action on the
ground of ripeness" (R 14). The court thereafter addressed the merits of the second
and third causes of action, and dismissed both finding: (1) that Plaintiff's proposed
use, "namely expanding the mine within eight feet of, and below, the water table is
[not] a nonconforming use" and (2) that Local Law No. 1 is not preempted by the
MLRL (R 18-23).
(R 2).
Plaintiff appeals from the Supreme Court's Judgment, Decision, and Order
ARGUMENT
POINT I
THE SUPREME COURT LACKED SUBJECT MATTER
JURISDICTION TO ADDRESS THE MERITS
"It is well settled that a court is without subject matter jurisdiction when it
lacks the competence to adjudicate a particular kind of controversy in the first place.
As the Court of Appeals has observed, [t]he question of subject matter jurisdiction
is a question of judicial power: whether the court has the power, conferred by the
Constitution or statute, to entertain the case before it" (Matter of State of New York
v Calhoun, 106 AD3d 1470, 1472 [4th Dept 2013] [internal quotation marks
omitted]). "[SJubject matter jurisdiction requires that the matter before the court is
ripe. In other words, courts may not issue judicial decisions that can have no
immediate effect and may never resolve anything, and thus an action may not be
maintained if the issue presented for adjudication involves a future event beyond
control of the parties which may never occur" (id. [emphasis added]; see Matter of
999 Hempstead Turnpike, LLC v Board of Appeals of the Town of Hempstead, 207
AD3d 716, 718-719 [2d Dept 2022] ["With no final determination having been
rendered on the application for a special exception permit, that issue was not ripe for
judicial review, and the Supreme Court lacked subject matter iurisdiction over that
issue" (emphasis added)]; Matter of 54 Marion Ave., LLC a City of Saratoga
Springs, 162 AD3d 1341, 1344 [3d Dept 2018] [Ripeness is a matter pertaining to
subject matter jurisdiction]).
A lack of subject matter jurisdiction may be raised at any time, including for
the first time on appeal, and even sua sponte (see Matter of 999 Hempstead Turnpike,
LLC, 207 AD3d at 719; Rothschild v Braselmann, 157 AD3d 1027, 1028 n 1 [3d
Dept 2018]; see also Matter of Fry v Village of Tarrytown, 89 NY2d 714, 722 [1997]
["(A) court's lack of subject matter jurisdiction is not waivable, but may be (raised)
at any stage of the action, and (a) court may, (on its own motion), at any time, when
its attention is called to the facts, refuse to proceed further and dismiss the action"]).
A judgment rendered by a court without subject matter jurisdiction is void as
a matter of law (see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d
200, 203 [2013]; Lacks v Lacks, 41 NY2d 71, 75 [1976]). As recently cautioned by
the Second Department,
7
Where subject matter jurisdiction is concerned, courts, including
our own, may not cut corners. As a matter of both constitutional
adherence and public policy, the Appellate Division must guard
against courts acting outside of their subject matter jurisdiction,
even if they do so unwittingly, in good faith, or in furtherance of
judicial economy (Caffrey v N. Arrow Abstract & Settlement
Servs., Inc., 160 AD3d 121, 134 [2d Dept 2018]).
Here, the court concluded that Plaintiff's application to the DEC to modify its
permit was pending, and, found "the lack of resolution concerning [Plaintiff's]
permit application to DEC to be determinative, and fatal to the second [and] third. .
. causes of action on the ground of ripeness" (R 14). At that point, the court's analysis
and decision should have stopped because its conclusion — that those causes of action
were not ripe for judicial review — stripped the court of subject matter jurisdiction.
Stated differently, the remaining analysis (and that portion of the judgment) on the
second and third causes of action is void as a matter of law because the court lacked
subject matter jurisdiction to issue the judgment (see Manhattan Telecom. Corp., 21
NY3d at 203; Lacks, 41 NY2d at 75; see also Ranco Sand & Stone Corp. v Vecchio,
27 NY3d 92, 101 [2016] ["the matter is not ripe for judicial review. Based on this
decision we need not address the merits of Ranco's challenge to the Town Board's
action"]; Arntzen v City of New York, 209 AD3d 404, 405 [lst Dept 2022] ["the
petition seeking to annul the declaration should have been dismissed as not ripe for
6 It remains Plaintiff's position that this action is ripe for judicial review pursuant to Matter of Red
Wing Props., Inc. v Town of Rhinebeck, 184 AD3d 577 [2d Dept 2020]) and the related discussion
in Point II (B) and (C).
9
judicial review ... In view of the foregoing, we need not address the merits of
petitioners' challenge to the City's action"]).
Accordingly, this Court should reverse the underlying Order insofar as it
dismissed the second and third causes of action on the merits.
POINT II
EVEN ASSUMING, ARGUENDO, THAT THE SUPREME COURT
MAINTAINED SUBJECT MATTER JURISDICTION TO REVIEW THE
MERITS, THE COURT ERRED IN DISMISSING THE SECOND CAUSE
OF ACTION, AND IN FAILING TO DECLARE THAT PLAINTIFF'S
PROPOSED MINING ACTIVITIES CONSTITUTED LAWFUL
NONCONFORMING USES.
A. Nonconforming Uses
"A use of property that existed before the enactment of a zoning restriction
that prohibits the use is a legal nonconforming use" (Matter of Sand Land Corp. v
Zoning Bd. of Appeals of Town of Southampton, 137 AD3d 1289, 1291-1292 [2d
Dept 2016], lv denied 28 NY3d 906 [2016]). "[P]rior nonconforming uses in
existence when a zoning ordinance is adopted are ... constitutionally protected even
though an ordinance may explicitly prohibit such activity" (Buffalo Crushed Stone,
Inc. v Town of Cheektowaga, 13 NY3d 88, 97 [2009]; see Glacial Aggregates LLC
v Town of Yorkshire, 14 NY3d 127, 135 [2010]). In the mining industry, prior
nonconforming use status may be extended to unquarried portions of real property
if the landowner can sufficiently demonstrate that, prior to the passage of a restrictive
zoning law, it engaged in substantial quarrying activities on a portion of the property
9
with the intention to do the same on other yet-unquarried portions of the property
(see Buffalo Crushed Stone, Inc., 13 NY3d at 98; Matter of Syracuse Aggregate
Corp. v Weise, 51 NY2d 278, 286 [1980]). "[T]here is a reduced burden in the mining
industry due to the unique use of land; `[a]s opposed to other nonconforming uses in
which the land is merely incidental to the activities conducted upon it, quarrying
contemplates the excavation and sale of the corpus of the land itself as a resource.
Depending on customer needs, the land will be gradually excavated in order to
supply the various grades of sand and gravel demanded"' (Matter of Cobleskill Stone
Prod., Inc. v Town of Schoharie, 169 AD3d 1182, 1184 [3d Dept 2019]).
To be entitled to a declaratory judgment voiding zoning restrictions with
respect to the subject property, a plaintiff "must establish specific actions
constituting an overt manifestation of its intent to utilize the property for the ascribed
purpose at the time the zoning ordinance became effective" (Buffalo Crushed Stone,
Inc., 13 NY3d at 98; see Matter of Syracuse Aggregate Corp., 51 NY2d at 284-285).
B. Matter of Red Wing Props., Inc v Town of Rhinebeck
The Second Department case in Matter of Red Wing Props., Inc. v Town of
Rhinebeck (184 AD3d 577 [2d Dept 2020], Iv denied 35 NY3d 918 [2020]) is
particularly instructive in examining Plaintiff's request for declaratory relief on its
second cause of action because the facts and legal issues are nearly identical to those
facing the Court here.
10
In Red Wing, the petitioner was the owner of a 241-acre parcel of property in
the Town of Rhinebeck that operated as a sand and gravel mine since 1993 (see id.
at 578). A DEC permit issued in 2005 allowed the petitioner to mine 37.5 acres of
the property (see id.). In 2008, the petitioner applied to the DEC for a permit
allowing it to expand the life of mine area to 141 acres. The petitioner simultaneously
submitted a draft environmental impact statement (see id.). The DEC thereafter
requested that additional information and/or studies be submitted to support the
application, and the petitioner complied with those requests (see id.). One of the
studies requested by the DEC was a study of an endangered turtle species on the
property (see id.). That study spanned the course of six years and cost the petitioner
in excess of $125,000 (see id.). In 2010, the petitioner submitted a revised draft
environmental impact statement, reducing the scope of the proposed expansion to
124 acres (see id.), and in 2015, further reduced the scope of the proposed expansion
to 94 acres (see id.).
In September 2015, while the petitioner's expansion application to the DEC
was pending, the Town enacted a zoning law that allowed mining on only those lands
in the Town upon which there were existing, DEC -permitted mining operations (see
id.). The petitioner applied to the Town's Zoning Enforcement Officer ("ZOE") for
a determination that it had a vested right to mine on the entirety of the subject
property in spite of the new zoning law based on a prior nonconforming use (see id.).
11
The ZOE denied the petitioner's application, and upon the petitioner's appeal, the
Town's Zoning Board of Appeals ("ZBA") confirmed the ZOE's determination (see
The petitioner subsequently commenced a hybrid proceeding pursuant to
CPLR Article 78 and CPLR Section 3001 seeking, inter alia, to review the ZBA's
determination and issue a declaratory judgment. The petitioner moved, in effect, for
summary judgment seeking a declaration that it had a vested right to mine its entire
parcel of property as a prior nonconforming use (see id. at 578-579). The Supreme
Court denied the motion and dismissed the proceeding.
On appeal, the Second Department set forth the applicable principles of law:
By its very nature, quarrying involves a unique use of land ....
[A]s a matter of practicality as well as economic necessity, a
quarry operator will not excavate his entire parcel of land at once,
but will leave areas in reserve, virtually untouched until they are
actually needed. [W]here ... the owner engages in substantial
quarrying activities on a distinct parcel of land over a long period
of time and these activities clearly manifest an intent to
appropriate the entire parcel to the particular business of
quarrying, the extent of [the] protection afforded by the
nonconforming use will extend to the boundaries of the parcel
even though extensive excavation may have been limited to only
a portion of the property (id. at 579 [internal citations and
quotation marks omitted]).
The Second Department determined the petitioner had demonstrated (1) it
engaged in substantial quarrying activities on a distinct parcel of land over a long
period of time; (2) in 2008, it manifested its intention to engage in mining activities
12
throughout its entire parcel by submitting a permit application to the DEC, which
permit was necessary in order for any mining activity, or preparatory activity, to
proceed, and until the DEC issued a permit, the petitioner could not enlarge its extant
mining operation; and (3) it was pursuing its application with the DEC as
expeditiously as possible (see id.). In opposition, the respondents failed to raise a
triable issue of fact, and the Second Department remitted the matter to the Supreme
Court for the entry of an amended judgment declaring that the petitioner had a vested
right to mine 94 acres of its property as a prior nonconforming use (see id. at 579-
580).
The same result is required here.
C. Plaintiff's Mining Activity Constitutes a Prior Nonconforming Use
It is undisputed that the Plaintiff has owned and operated the Mine
continuously since 1987 pursuant to the Permit (R 1507). The Mine is located in the
Town -established Aquifer Protection District; there were no restrictions on mines or
mining operations contained with the provisions of the Municipal Code that
established the existing Aquifer Protection District (R 731).
In April 2017, Plaintiff applied to the DEC to modify the Permit. This
application sought permission to mine an additional 11.9 acres laterally, and to mine
approximately 100-feet below the water table to the bottom of the sand and gravel
outwash deposit (R 1507). In March 2018, in response to the comments it received
13
on the permit modification application, Plaintiff agreed to develop a scope of work
for the proposed expanded mining operations, and to conduct a hydrogeologic
investigation (R 721, 881). The purpose of the hydrogeologic investigation was to
evaluate how the proposed permit modification would affect (if at all) the quality
and quantity of the groundwater in the Lime Hollow well field, which is located
approximately 800 feet northwest of the permitted and proposed mine area (R 881).
Plaintiff's consultant, H2H Geoscience Engineering PLLC ("11211"), submitted the
proposed scope of work to the DEC and following certain revisions to the scope of
work, H2H conducted the hydrogeologic investigation (R 721, 881). H2H's
investigation was conducted over a one-year period between February 2019 and
February 2020 (R 881-882). H2H issued a final report on March 31, 2020, which
revealed that the expansion of mining would have no negative impact on the Town's
groundwater or drinking water (R 731, 881-882, 1508).
On January 20, 2021, the DEC issued a Negative Declaration, indicating that
the expansion of activities requested by Plaintiff would not have any significant
environmental impacts (R 721). On or about April 26, 2021, however, the DEC
issued a Notice of Intent to Rescind its Negative Declaration (R 721). It cannot
seriously be disputed that the actions of certain Town Board members were the
impetus behind the DEC's rescission of the Negative Declaration (R 731, 882-883).
m
On May 14, 2021, H2H responded to the DEC's Notice of Intent to Rescind
the Negative Declaration. In its May 14, 2021 letter, H2H provided detailed
responses to each of the issues noted in the April 26 Notice (R 722, 741-813). In any
event, on May 26, 2021, the DEC simultaneously issued a Notice rescinding the
Negative Declaration and a Positive Declaration, and, consequently, Plaintiff was
required to prepare a DEIS (R 722).
In direct response to Plaintiff's application to the DEC for a modified permit,
the Town began discussing amendments to the Town's Zoning Code to prohibit
Plaintiff's expanded mining activities. The Town originally proposed a mining
moratorium, and subsequently, on or about June 22, 2021, a proposal for "A Local
Law Amending the Town of Cortlandville's Zoning Code to Further Safeguard the
Existing Wellhead Protection Areas within the Town of Cortlandville's Aquifer
Protection District" (the "Proposed Amendment") (R 722-724). During this time -
period, Plaintiff notified the Town that it had manifested its intent to mine the
entirety of the Mine by (among other things) expending significant resources on
environmental studies, purchasing and maintaining necessary equipment, and
applying to the DEC for a permit to expand its existing operations. All of these
investments were made before the Proposed Amendment (R 726, 1509). On October
20, 2021, the Town withdrew the Proposed Amendment from consideration, and
15
indicated an intent to propose different legislation concerning mining activities in
the Town (R 727).
On October 26, 2021, the Town submitted a "Local Law Amending the Town
of Cortlandville's Zoning Code to Further Safeguard the Existing Wellhead
Protection Areas within the Town of Cortlandville Aquifer Protection District
("Proposed Local Law No. 1") to the County Planning Board for its review under
General Municipal Law §239-m (R 725-727). While Proposed Local Law No. 1 no
longer prohibited "all forms of mining," in Zone IA, it specifically restricted mining
below the water table in Zone IA, which is the area within which plaintiff has asked
the DEC for modification of its Permit to allow it to expand the vertical reach of the
Mine (R 727). Local Law No. 1 was adopted in early 2022, and includes the
following language, in pertinent part:
D. Prohibited Uses and Activities. The following uses and
activities and expansions of any such existing uses and activities,
except as allowed herein, are prohibited within Wellhead
Protection Zone lA regardless of whether such use or activity is
in an allowable use within the underlying Zoning District that is
overlain by that zone:
(11) All new Mines and all forms of Mining are prohibited
within Wellhead Protection Zone 1A, except that existing
Mines in such areas may continue to operate if previously
permitted, and may expand laterally within the existing
property, but may not expand into and below the water
table in Wellhead Protection Zone IA unless such
expansion or operation below the water table was
feel
previously permitted by the NYSDEC prior to the
exactment of this provision.
There is no dispute that, at the time of the enactment of Local Law No. 1, the
DEC permit application was (and remains) pending.
As was the case in Red Wing, Plaintiff has demonstrated that (1) it engaged in
substantial quarrying activities on a distinct parcel of land over a long period of time
(since 1987); (2) in 2017, it manifested an intention to engage in mining activities
throughout its entire parcel by submitting a permit application to the DEC, which
permit was necessary in order for any mining activity, or preparatory activity, to
proceed, and until the DEC issued a permit, the plaintiff could not enlarge its extant
mining operation; and (3) it has been pursuing said application with the DEC as
expeditiously as possible (see id. at 579-580). Accordingly, Plaintiff is entitled to a
declaration that it has a vested right to mine approximately 100-feet below the water
table to the bottom of the sand and gravel outwash deposit (see id. at 579-580; see
also Jones v Town of Carroll, 15 NY3 d 13 9, 144-146 [2010]; Glacial Aggregates
LLC, 14 NY3d at 138; Buffalo Crushed Stone, 13 NY3d at 103).
D. The Supreme Court's Decision on the Second Cause of Action
In distinguishing the cases cited by the Plaintiff, the lower court relied heavily
on its view that the current permit held by the Plaintiff "expressly prohibits"
expansion (R 20).
17
Preliminarily, the Plaintiff's current permit does not actually "expressly"
prohibit expansion. While the permit states that "[a] minimum of 8 feet of
undisturbed material shall be maintained above the mean high groundwater elevation
at all locations," the permit also provides that "[t]he final mine floor elevation is
based entirely on maintaining an 8-foot separation from the mean high water table
which has not been established. Sampling and reporting of the water table elevations
shall continue for a minimum of 5 years from the issuance of this permit, or until
otherwise determined by the Department" (R 364 [emphasis added]).
In any event, whether it is unpermitted (as in Red Wing) or prohibited (as in
the case at bar) — is a distinction without a difference. In both cases, the mine
operators had DEC permits to mine portions of their respective properties and sought
DEC approval to expand their activities. In both cases, DEC approval was pending
at the time the prohibitive ordinance was enacted. The mine operators in both cases
were forced to litigate to enforce their vested right to mine. The lower court ignored
the indistinguishable facts and circumstances in Red Wing when it concluded that
Plaintiff "cannot claim to have undertaken `specific actions constituting an overt
manifestation of its intent to utilize the property for the ascribed purpose at the time
the zoning ordinance became effective' because such actions were prescribed by
DEC" (R 20-21). Notably, the Second Department in Red Wing found just the
opposite when it concluded that "the petitioner also demonstrated that in 2008, it
manifested its intention to engage in mining activities throughout its entire parcel by
submitting a permit application to the DEC, which permit was necessary in order for
any mining activity, or preparatory activity, to proceed. Until the DEC issued a
permit, the petitioner could not enlarge its extant mining operation. The petitioner
also showed that it was pursuing its application with the DEC as expeditiously as
possible" (Red Wing, 184 AD3d at 579). The same result in Red Wing is warranted
here.
The lower court also failed to recognize that, "` [b]y its very nature, quarrying
involves a unique use of land .... [A]s a matter of practicality as well as economic
necessity, a quarry operator will not excavate his entire parcel of land at once, but
will leave areas in reserve, virtually untouched until they are actually needed"'
(Buffalo Crushed Stone, Inc., 13 NY3d at 98). "[W]here ... the owner engages in
substantial quarrying activities on a distinct parcel of land over a long period of time
and these activities clearly manifest an intent to appropriate the entire parcel to the
particular business of quarrying, the extent of [the] protection afforded by the
nonconforming use will extend to the boundaries of the parcel even though extensive
excavation may have been limited to only a portion of the property" (Matter of
Syracuse Aggregate Corp., 51 NY2d at 286). Above all, "[e]very inch of the land
need not have been employed for the asserted purpose" in order to constitute a prior
nonconforming use (Buffalo Crushed Stone, Inc., 13 NY3d at 98).
19
The Court of Appeals in Glacial Aggregates LLC is also instructive:
When applying our vested -rights jurisprudence to the facts in this
case, there are two significant considerations that must be kept in
mind. First, the Town had no zoning laws when Glacial acquired
the property in 1996—or, for that matter, when Glacial applied
for the DEC mining permit in 1996, or even when DEC issued
Glacial a mining permit in 1999 ... Relatedly, mining is a unique
land use, which colors our analysis of vested rights and
nonconforming use (14 NY3d at 136).
The same is true here. In 1987, when Plaintiff's predecessor started mining
the property, there were no restrictions. Nor were there any restrictions when
Plaintiff applied for its modified permit in 2017. It was not until the DEC issued a
Negative Declaration in January, 2021 that the Town sought to restrict the Plaintiff's
mining activities. Contrary to the conclusion reached by the lower court, "the issue
is not whether [plaintiff] gained a vested right by way of its DEC mining permit, but
whether [plaintiff] acquired a vested right by way of the unqualified Town
permission it once enjoyed to mine its property" (id.).
Finally, the Court of Appeals recently reiterated the "variety of activities" that
may be considered in evaluating "whether the owner has engage[d] in substantial
quarrying activities on a distinct parcel of land over a long period of time and thereby
clearly manifesting] an intent to appropriate the entire parcel to the particular
business of quarrying" (Matter of Town of Southampton v New York State Dept. of
Envtl. Conservation, 39 NY3d 201, 212-213 [2023]):
0411
We have recognized that mining permits are strong evidence of
a manifestation of intent to mine a given area, though they are
not the only possible evidence to establish the extent of a prior
nonconforming use. For example, an intent to quarry a particular
section of a parcel was demonstrated by the owner's preparation
of maps to survey the potential materials to be extracted from the
subparcel, putting 6,000 feet of pipe in place, negotiations to
relocate a road, correspondence expressing an intent to mine the
subparcel, preparations for removal of dirt, and drilling auger
holes to identify areas for quarrying as well as the clearing,
grubbing and stripping of topsoil. Similarly, we concluded that
intent to quarry was demonstrated by evidence that the owner of
the parcel dedicated substantial areas around the actual landfill
site for related purposes, purchased necessary heavy equipment
(such as a bulldozer, a backhoe, an excavator, a loader and a
dump truck), employed a dozen people, developed plans for
multi -stage enlargement of the landfill and engaged in
discussions with investors regarding future operations (id. at n 2
[internal citations and quotation marks omitted]).
Putting aside the fact that Plaintiff submitted its permit application in 2017
(five years prior to the enactment of the Local Law), in anticipation of the expansion
of mining activities, and before the DEC withdrew the Negative Declaration in 2021,
Plaintiff made investments in modernizing equipment and more environmentally
safe practices. Those investments cost Plaintiff tens of thousands of dollars (R
1509). Furthermore, in response to certain comments it received on the 2017 permit
application, Plaintiff agreed to conduct a hydrogeologic investigation. To do so,
Plaintiff retained H2H, which conducted the investigation over a one-year period
from 2019-2020. This investigation revealed that the expansion of mining activities
would have no negative impact on the Town's groundwater or drinking water (R
21
720-722; 881-882). Taking into account all of the Plaintiff's time on the property,
along with all of its related efforts to pursue the 2017 modification permit, it is quite
clear that the Plaintiff has manifested the requisite intent to engage in mining
activities throughout its entire parcel, including the proposed vertical expansion.
Accordingly, and assuming this Court can reach the merits, it should reverse
the underlying Order, which dismissed the second cause of action, and declare that
Plaintiff has a vested right to mine the entirety of its property as a prior
nonconforming use.
POINT III
EVEN ASSUMING, ARGUENDO, THAT THE SUPREME COURT
MAINTAINED SUBJECT MATTER JURISDICTION TO REVIEW
THE MERITS, THE COURT ERRED IN DISMISSING THE THIRD
CAUSE OF ACTION, AND IN FAILING TO DECLARE THAT
LOCAL LAW NO. I IS PREEMPTED BY THE MLRL.
Plaintiff's third cause of action sought a declaration that Local Law No. 1 is
preempted by the MLRL (ECL §23-2701 et seq.). Before the lower court, the parties
agreed that "local laws that purport[] to regulate the `how' of mining activities and
operations [are] preempted whereas those limiting "where" mining c[an] take place
[are] not" (Wallach v Town of Dryden, 23 NY3d 728, 745 [2014] [emphasis added]).
Contrary to the lower court's conclusion, however, Local Law No. 1 does in fact
regulate "how" the Plaintiff will conduct its mining operations.
22
The case law is clear that a prohibition against mining below the water table
is "an express limitation of the mining process," and is therefore preempted by the
MLRL (Hawkins v Town of Preble, 145 AD2d 775, 776 [3d Dep't 1988]). There is
no other way to interpret Hawkins. Several reputable secondary sources have
interpreted it the same way (see e.g., 43 NY Jur. 2d Declaratory Judgments § 69
[2023]; 12 NY Jur. 2d Buildings § 315 [2023] ["the Mined Land Reclamation Law.
. has been invoked to preclude a municipality from imposing conditions relating to
the actual operation of mines, such as a prohibition of all mining below the water
table"]; 3A Ordinance Law Annotations Mines and Quarries § 2 [2023] ["While a
municipality is not prohibited from generally regulating land use, the regulation by
use of a water table designation is inappropriate"]).
Furthermore, the Suffolk County Supreme Court has concluded that "vertical
deepening of the mine area is simply a different method to accomplish the same
mining operations on the property" (R 1543-1555). Most importantly, however, the
Suffolk County Supreme Court held that the "increased vertical deepening on the
mine within the existing mining area cannot be deemed a prohibited expansion or
change to the pre-existing non -conforming use under [the] Zoning Code ... This
result is consistent with the principle that a municipality may adopt a zoning
ordinance that prohibits mining within a zoning district, but it `may not regulate the
process or method of mining' ... , and is in accord with the MLRL, which limits
23
municipalities to selecting where mines may be located, but not the operational
aspects of the minim" (id. [emphasis added]).
Accordingly, and assuming this Court can reach the merits, it should reverse
the underlying Order, which dismissed the third cause of action, and declare that
Local Law No. 1 is preempted by the MLRL, and therefore invalid, as a matter of
law.
CONCLUSION:
In light of Supreme Court's conclusion on ripeness, the Judgment, Decision,
and Order should be reversed insofar as it addressed the merits of Plaintiff's second
and third causes of action. If this Court can reach the merits of the Plaintiff's claims
under its second and third causes of action, the Court should grant the Plaintiff's
motion for summary judgment, deny the Defendants' motion to dismiss, and issue
the corresponding declarations sought pursuant to those causes of action.
Respectfully submitted,
Timothy N. McMahon
Bond, Schoeneck & King PLLC
Attorneys for Plaintiff -Appellant
One Lincoln Center
110 West Fayette Street
Syracuse, New York 13202
315-218-8000
tmcmahon(&,,bsk.com
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