Development

Department of Environmental Conservation Misapplied Statute
Matter of Town of Southampton v. New York State Department of Environmental Conservation
2024 WL4549139
AppDiv, Second Dept.
(memorandum opinion)
In a town’s article 78 proceeding to review the Department of Environmental Conservation’s grant of a permit to expand a prior nonconforming mining use, the town appealed from Supreme Court’s denial of the petition and dismissal of the proceeding. The Appellate Division reversed and annulled the permit, holding that the Department had misapplied Environmental Conservation Law 23-2703(3).
Operator of a sand and gravel mine applied to the Department of Environmental Conservation (DEC) to expand the breadth and depth of its mining operation in Suffolk County. In response to a request from DEC, the town supervisor stated that mining was not a permitted use within any zoning category in the town. DEC nevertheless issued a permit for expanded mining pursuant to the general rule that an owner is entitled to expand a quarrying operation as a nonconforming use if the owner has engaged in quarrying operations for a long period and has manifested an intention to appropriate the entire parcel for quarrying. When the town challenged the determination, Supreme Court denied the petition.
In reversing, the Appellate Division relied on Environmental Conservation Law 23-2703(3), which prohibits consideration of a mining permit within counties with populations of one million or more that draw their drinking water from a sole source aquifer if local zoning laws prohibit mining uses. Suffolk County qualifies under the statute. The court also relied on the recent Court of Appeals decision in Town of Southampton v. New York State Department of Environmental Conservation, 39 NY3d 201, which indicated that the statute protects against expansion of mining activities beyond the permissible nonconforming use.