Development

In an article 78 proceeding brought by the town, various organizations and neighbors to annul an agreement between mine operator and the Department of Environmental Conservation (DEC), the mine operator appealed from the Appellate Division's grant of the petition. The Court of Appeals modified, holding that whether DEC has authority to issue a renewal and modification permit depends on the scope of the mine operator's prior non-conforming use.

A sand and gravel mine has been operated on the subject 50-acre Suffolk County parcel since the 1960s, when local zoning permitted mining. In 1972, the town rezoned the area to prohibit mining. Nevertheless DEC issued or renewed permits at regular intervals, and the operator obtained certificates of occupancy from the town stating that use as a sand mine was a prior nonconforming use. In 2014, the operator applied to the DEC to modify its permit to increase the depth of mining by 40 feet and to mine on additional 4.9 acres that had not been covered by previous DEC permits. Although DEC initially denied the permit application, DEC and the mine operator ultimately reached a settlement authorizing the greater depth and greater area in return for the operator's agreement to cease using the facility for receipt and processing of vegetative organic waste. The town and the neighbors brought an article 78 proceeding to annul the permit. Supreme Court denied the petition and dismissed the proceeding. A divided Appellate Division modified, holding that Environmental Conservation Law 23-2703(3) barred issuing the permit in violation of the town's prohibition on mining. The mine operator appealed.