Development

AppDiv, Second Dept.

(memorandum opinion)

In an environmental group's article 78 proceeding to review an extraordinary hardship waiver permitting expansion of a mining operation in the Long Island Pine Barrens, the environmental group appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the commission's determination was not arbitrary or capricious.

Owner of a sand and gravel mine in the pine barrens sought an extraordinary hardship waiver pursuant to Environmental Conservation Law section 57-0121(10) and 57-0123(3) to permit vertical expansion of mine depth. After a public hearing, the Central Pine Barrens Joint Planning & Policy Commission granted the variance. The Long Island Pine Barrens Society and several of its directors then brought this proceeding to challenge the determination. Supreme Court denied the petition on two grounds: first, that the petitioners lacked standing, and second, that the determination was not arbitrary, capricious or an abuse of discretion.

In affirming, the Appellate Division first concluded that Supreme Court had erred in denying standing to the organization and its members. The court focused on the fact that the organization's president established injury by showing that he uses the pine barrens more than most other members of the public, and then noted that society established the other elements necessary to give it standing: The interests at stake are germane to organizational purposes, and the claim does not require participation of individual members. Once the court conceded that the organization had standing, the court held that Supreme Court had properly dismissed the petition on the merits because the mine operator had established that it would have no other beneficial use of the property without the waiver.

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