| Troy Sand & Gravel Co., Inc. v Town of Nassau |
| 2012 NY Slip Op 09113 [101 AD3d 1505] |
| December 27, 2012 |
| Appellate Division, Third Department |
| Troy Sand & Gravel Company, Inc., et al.,Respondents, v Town of Nassau et al., Appellants. |
—[*1] Tuczinski, Cavalier, Burstein & Collura, PC, Albany (Andrew W. Gilchrist of counsel), forrespondents.
Spain, J. Appeal from an order of the Supreme Court (Lynch, J.), entered February 2, 2012 inRensselaer County, which partially granted plaintiffs' motion for, among other things, apreliminary injunction.
In December 2003, plaintiff Troy Sand & Gravel Company, Inc. (hereinafter plaintiff)applied to the Department of Environmental Conservation (hereinafter DEC) for a mining permitto construct a quarry in the Town of Nassau, Rensselaer County on land owned by plaintiffHenkel Realty Associates, LLC. In February 2004, plaintiff also submitted applications to theTown for a special use permit and site plan approval for the quarry, applications which are stillpending today due to ongoing litigation (see Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 89AD3d 1178 [2011], lv dismissed 18 NY3d 920 [2012]). Thereafter, theCommissioner of Environmental Conservation appointed DEC as the lead agency for theenvironmental review of the proposed quarry pursuant to the State Environmental QualityReview Act (see ECL art 8 [hereinafter SEQRA]), and DEC conducted a full review ofthe quarry's potential environmental impact, in which the Town Board actively participated as aninvolved agency. In 2007, DEC accepted plaintiff's final environmental impact statement,published a SEQRA findings statement, and issued a mining permit to plaintiff under the MinedLand Reclamation Law (hereinafter MLRL), with a number of specific conditions (seeECL 23-2701 et seq.).[*2]
In November 2011, the Town Board held a specialmeeting concerning plaintiff's pending 2004 applications for a special use permit and site planreview, and determined that it would hire a planning consultant to provide expert assistance tothe Town in analyzing environmental issues as part of its review of the pending applications, asauthorized by the Town's 1986 "Land Use and Development Regulations of the Town of Nassau,Rensselaer County, New York" (hereinafter the zoning regulations).[FN1]Notably, as required by the zoning regulations, plaintiff—as applicant—mustreimburse the Town for the costs incurred by this consultant. Shortly thereafter, plaintiffscommenced this declaratory judgment action (which is still pending) seeking a declaration,among others, that (1) the Town and Town Board (hereinafter collectively referred to as theTown) are bound—in their review of plaintiff's applications—by all determinationsmade in DEC's SEQRA review, (2) the Town is without authority to either revisit anyenvironmental issue addressed in the SEQRA findings or to retain a professional consultant forthe purpose of reviewing any environmental issue already determined in the SEQRA process, and(3) plaintiff is not required to reimburse the Town for any costs incurred in retaining theconsultant.
Plaintiffs also requested a preliminary injunction, during the pendency of the action and byorder to show cause, restraining the Town from incurring any expense associated with hiring aconsultant to review any issue that has already been determined in the SEQRA process. SupremeCourt issued a written decision partially granting the requested preliminary injunction byenjoining the Town from reassessing, pursuant to the zoning regulations governing special usepermits, the environmental impact of the proposed quarry to the extent already addressed by theSEQRA determination and further stated that any review of plaintiff's applications shall "notinclude a reconsideration of DEC's SEQRA determination" (Troy Sand & Gravel Co., Inc. vTown of Nassau, 34 Misc 3d 1219[A], 2012 NY Slip Op 50182[U], *4 [Sup Ct, RensselaerCounty 2012]). Defendants now appeal, challenging the grant of injunctive relief.
We find merit in defendants' argument on appeal that Supreme Court erred in grantingplaintiffs' request for a preliminary injunction, which effectively precluded the Town fromfollowing its zoning regulations to the extent that they authorize consideration of environmentalfactors in its review of plaintiff's pending applications. Plaintiffs did not demonstrate a likelihoodof success on the merits, that irreparable harm will occur without this relief, or that the equitiesbalance in their favor (see EmeraldGreen Prop. Owners Assn., Inc. v Jada Developers, LLC, 63 AD3d 1396, 1397 [2009]).
To begin, we agree with Supreme Court that DEC's SEQRA determination, including itsfindings statement and accepted final environmental impact statement, are binding on the Townto the extent that it may not conduct its own or any de novo SEQRA review (see Matter ofGordon v Rush, 100 NY2d 236, 243 [2003]). However, local land use matters and zoningdecisions—such as the consideration of special use permits—are within theexclusive responsibility of the Town, as representative of its local community, which"possess[es] the familiarity with local conditions necessary to make the often sensitive planningdecisions which [*3]affect the development of [its] community"(Matter of Cowan v Kern, 41 NY2d 591, 599 [1977]; see Matter of Albany-GreeneSanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d 644, 646 [1999],lv denied 94 NY2d 752 [1999]; Waste Mgt. of N.Y., LLC v Town of Albion, 18Misc 3d 1133[A], 2005 NY Slip Op 52343[U], *8 [Sup Ct, Orleans County 2005], affd32 AD3d 1295 [2006], lv denied 8 NY3d 805 [2007]; see Town Law §261). Significantly, while zoning ordinances are to be interpreted and administered in accordwith SEQRA, the SEQRA process and requirements do "not change the existing jurisdiction ofagencies nor the jurisdiction between or among state and local agencies" (6 NYCRR 617.3 [b];see ECL 8-0103 [6]; Matter of Albany-Greene Sanitation v Town of New BaltimoreZoning Bd. of Appeals, 263 AD2d at 646)—that is, "SEQRA neither preempts norinterferes with local zoning ordinances" (Matter of WEOK Broadcasting Corp. v PlanningBd. of Town of Lloyd, 165 AD2d 578, 581 [1991], affd 79 NY2d 373 [1992], citingMatter of Town of Poughkeepsie v Flacke, 84 AD2d 1, 5 [1981], lv denied 57NY2d 602 [1982]; see Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51NY2d 679, 683-684 [1980]). DEC's SEQRA and permit approvals simply mean that plaintiff'sproposal satisfies the applicable state law and regulatory standards.
Thus, DEC's SEQRA determination did not supplant the Town's zoning regulationsgoverning review of special use permit applications, nor did it predetermine the Town's decisionon plaintiff's permit application. Likewise, the SEQRA findings did not bind the Town to issuethe requested special use permit or preclude it from employing the procedures—andconsidering the standards—in its own local zoning regulations, including theenvironmental and neighborhood impacts of the project (see Matter of Albany-GreeneSanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d at 646; Matterof Wal-Mart Stores v Planning Bd. of Town of N. Elba, 238 AD2d 93, 97 [1998]; Matterof Zagoreos v Conklin, 109 AD2d 281, 297 [1985]; see also Matter of ChadwickGardens Assoc. v City of Newburgh Zoning Bd. of Appeals, 273 AD2d 232, 232 [2000]).
Indeed, DEC's SEQRA findings statement recognizes as much, specifically noting that DEC's"final decision on this proposal would not override the municipality's local land use or zoningordinances, and [plaintiff] would be required to obtain any required local, state and federalapproval prior to undertaking the [mining] activity." Thus, while the SEQRA process isconcluded and the Town is bound by DEC's SEQRA determination, the Town remains entitled toindependently review plaintiff's application for the special use permit in accord with thestandards contained in its zoning regulations, including consideration of the "health, safety,welfare, comfort and convenience of the public," both in general and in the immediateneighborhood, as well as "the environmental impact" (Local Law No. 2 [1986] of Town ofNassau art VI [A]). The Town, in its review of, among other things, the environmental impact ofthe proposed quarry under its zoning regulations, will necessarily take into consideration andabide by DEC's SEQRA determination and mining permit approval, but these DECdeterminations do not displace local special use permit review. Of course, the Town's ultimatedetermination is subject to CPLR article 78 review, and will be upheld only if it is rational andsupported by substantial evidence (see Matter of Feinberg v Board of Appeals of Town ofSanford, 306 AD2d 593, 594 [2003]).[FN2][*4]
Moreover, while DEC issued a mining permit(see ECL 23-2711), plaintiff has "no entitlement to a special use permit" unless itdemonstrates that its proposed use at this location "conforms with the standards imposed by thezoning ordinance" (Matter of Schadow v Wilson, 191 AD2d 53, 57 [1993]; see Townof Riverhead v T.S. Haulers, 275 AD2d 774, 775 [2000]; Matter of Cipperley v Town ofE. Greenbush, 262 AD2d 764, 765 [1999]; Town of Throop v Leema Gravel Beds,249 AD2d 970, 971 [1998]). While the MLRL supersedes "all other state and local laws,"supersession is expressly limited to laws "relating to the extractive mining industry" (ECL23-2703 [2]), thereby only precluding local laws regulating actual extractive mining operations oractivities (see Matter of Hunt Bros. v Glennon, 81 NY2d 906, 909 [1993], citingMatter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126, 131 [1987];Matter of Town of Parishville v Contore Co., 237 AD2d 67, 69 [1998]). Localgovernments are not prevented from "enacting or enforcing local laws or ordinances of generalapplicability" that do not directly "regulate mining and/or reclamation activities" (ECL 23-2703[2] [a]) or local laws "which determine permissible uses in zoning districts" (ECL 23-2703 [2][b]; see Matter of Hunt Bros. v Glennon, 81 NY2d at 909 n), and which "affect theextractive mining industry only in incidental ways" (Matter of Hunt Bros. v Glennon, 81NY2d at 909).
As we have previously stated regarding this application, the MLRL does not "govern themanner in which decisions on special use permits must be made" (Matter of Troy Sand &Gravel Co., Inc. v Town of Nassau, 89 AD3d at 1181). Thus, under established law, "[a]municipality retains general authority [by means of its zoning powers] to regulate land use and toregulate or prohibit the use of land within its boundaries for mining operations, although it maynot directly regulate the specifics of the mining activities or reclamation process" (PrebleAggregate v Town of Preble, 263 AD2d 849, 850 [1999], lv denied 94 NY2d 760[2000]; see Village of Savona v Knight Settlement Sand & Gravel, 88 NY2d 897, 899[1996]). Clearly, the statute expressly contemplates that municipalities retain the right to enactand enforce zoning ordinances that determine permissible uses in zoning districts, and the rightto require a special use permit (see ECL 23-2703 [2] [b]). The zoning regulations heregoverning special use permits are the type of permissible local law of general applicability that isnot superseded, although the Town is strictly limited in the conditions that it may attach to aspecial use permit for mining (see ECL 23-2703 [2] [b] [i-iv]; Town of Riverhead vT.S. Haulers, 275 AD2d at 775; Matter of Schadow v Wilson, 191 AD2d at 55-56;compare Philipstown Indus. Park v Town Bd. of Town of Philipstown, 247 AD2d 525,526-528 [1998]). Hence, the special use permit zoning regulations are a valid exercise of theTown's powers, are not preempted by Mined Land Reclamation Law § 23-2703, andauthorize the Town's consideration of, among other things, the environmental impact ofplaintiff's proposed mining operation, as well as plaintiff's compelled reimbursement ofconsultation fees in connection with the Town's review of its special use permit application.Given the foregoing, plaintiffs have not demonstrated their entitlement to the drastic relief of apreliminary injunction (see Moore vRuback's Grove Campers' Assn., Inc., 85 AD3d 1220, 1221 [2011]; Emerald GreenProp. Owners Assn., Inc. v Jada Developers, LLC, 63 AD3d at 1397).
Rose, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order is reversed,on the law, without costs, motion denied in its [*5]entirety andpreliminary injunction vacated, effective immediately. [Prior Case History: 34 Misc 3d1219(A), 2012 NY Slip Op 50182(U).]
Footnote 1: Although these zoningregulations have since been replaced and superseded, the parties stipulated in 2010 that thepending applications will be reviewed pursuant to the zoning regulations in effect in 1986(see Local Law No. 2 [1986] of Town of Nassau).
Footnote 2: In the event that the Townevaluates environmental concerns which overlap with environmental findings made by DEC inthe SEQRA process, any contrary or conflicting finding by the Town would, of course, have tobe rationally based and supported by substantial evidence.