Opinion
2015–2912 S CR
04-05-2018
The PEOPLE of the State of New York, Appellant, v. WAINSCOTT SAND AND GRAVEL CORP. and Wainscott Sand and Gravel Corp. II, Respondents.
Office of the Southampton Town Attorney (Richard M. Harris of counsel), for appellant. Matthews, Kirst & Cooley, PLLC (Deborah Choron of counsel), for respondent.
Office of the Southampton Town Attorney (Richard M. Harris of counsel), for appellant.
Matthews, Kirst & Cooley, PLLC (Deborah Choron of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V. BRANDS, JJ.
Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Barbara L. Wilson, J.), entered July 24, 2015. The order granted defendants' motion to dismiss the accusatory instruments.
ORDERED that the order is reversed, on the law, defendants' motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.
In September 2013, the People charged defendants, in four separate accusatory instruments, with violating, on different dates, section 330–177 (A) of the Code of the Town of Southampton, alleging that, while defendants had a permit to conduct a sand mining and extraction operation at a specified premises, they had violated the certificate of occupancy therefor by, among other things, engaging in the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and by allowing road construction debris, including concrete and asphalt, to be deposited and processed at the mining premises. Defendants moved to dismiss the accusatory instruments, arguing that the supersession clause in the New York State Mined Land Reclamation Law (MLRL) (see Environmental Conservation Law [ECL] § 23–2701 et seq. ) preempted the authority of the Town of Southampton (Town) to regulate sand mining operations and activities ancillary thereto, via local zoning rules (see ECL § 23–2703 [2 ] ), and that the determination of the Town's Zoning Board of Appeals (ZBA)—that defendants had violated the certificate of occupancy by engaging in the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and by depositing and processing construction debris—had been declared invalid (citing Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton , 43 Misc. 3d 1202(A), 2014 N.Y. Slip Op. 50453(U), 2014 WL 1256070 [Sup. Ct., Suffolk County 2014] ). By order entered July 24, 2015, the Justice Court granted defendants' motion.
Defendants' activities at the premises have been the subject of prior litigation involving Sand Land Corporation, now the primary defendant in the instant prosecution. There have been a taxpayers' Town Law § 268 (2) action for injunctive relief and damages based on certain of the activities that are the subject of the instant criminal charges (see Phair v. Sand Land Corp., 56 A.D.3d 449, 866 N.Y.S.2d 363 [2008] ), Sand Land Corporation's CPLR article 78 challenge to a ZBA modification of a building inspector's determination with respect to the legal uses of defendants' property (see Sand Land Corp. v. Zoning Bd. of Appeals of the Town of Southampton , 43 Misc. 3d 1202(A), 2014 N.Y. Slip Op. 50453(U), 2014 WL 1256070 [Sup. Ct., Suffolk County 2014], revd Matter of Sand Land Corp. v. Zoning Bd. of Appeals of Town of Southampton , 137 A.D.3d 1289, 28 N.Y.S.3d 405 [2016], lv denied 28 N.Y.3d 906, 2016 WL 6273302 [2016] ), and a successful taxpayers' appeal from an order that had granted Sand Land Corporation's motion to dismiss two of the causes of action in the complaint brought pursuant to Town Law § 268 (2) ( Phair v. Sand Land Corp., 137 A.D.3d 1237, 28 N.Y.S.3d 400 [2016] ). The courts, without reference to state preemption of local land use management via the zoning authority, upheld the ZBA's determination that the certificate of occupancy for defendants' sand mining and extraction operation limited defendants' activities accessory thereto to the preexisting nonconforming use of the receipt of trees, brush, stumps, leaves and other clearing debris onto the property but not the processing of same into topsoil or mulch, and entirely disallowed the receipt and processing of road construction debris.
We cannot agree with defendants' contention that the Town's regulation of land use activities at defendants' premises violates the state's preemption policy. The determination of whether a "supersession clause" preempts local zoning laws requires consideration of three factors, "(1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history" ( Matter of Wallach v. Town of Dryden , 23 N.Y.3d 728, 744, 992 N.Y.S.2d 710, 16 N.E.3d 1188 [2014] ; see also Matter of Frew Run Gravel Prods. v. Town of Carroll, 71 N.Y.2d 126, 524 N.Y.S.2d 25, 518 N.E.2d 920 [1987] ). The declared purpose of the MLRL is "to foster and encourage the development of an economically sound and stable mining industry, and the orderly development of domestic mineral resources and reserves necessary to assure satisfaction of economic needs compatible with sound environmental management practices" and, among other enumerated things, "to provide for the conservation, development, utilization, management and appropriate use of ... natural resources" ( ECL § 23–2703 [1 ] ). This provision has been construed, in the case of mining operations, to apply "only [to] those laws that deal ‘with the actual operation and process of mining’ [that] are superseded" ( Matter of Hunt Bros. v. Glennon , 81 N.Y.2d 906, 909, 597 N.Y.S.2d 643, 613 N.E.2d 549 [1993], quoting Matter of Frew Run Gravel Prods. v. Town of Carroll , 71 N.Y.2d at 131, 524 N.Y.S.2d 25, 518 N.E.2d 920 ), and not "local zoning ordinances that are addressed to subject matters other than extractive mining and that affect the extractive mining industry only in incidental ways" ( Matter of Hunt Bros. v. Glennon , 81 N.Y.2d at 909, 597 N.Y.S.2d 643, 613 N.E.2d 549 ; see e.g. Troy Sand & Gravel Co., Inc. v. Town of Nassau , 101 A.D.3d 1505, 957 N.Y.S.2d 444 [2012] ; Town of Riverhead v. T.S. Haulers, 275 A.D.2d 774, 713 N.Y.S.2d 740 [2000] ; Preble Aggregate v. Town of Preble , 263 A.D.2d 849, 694 N.Y.S.2d 788 [1999] ). The "supersession clause" is not intended to "limit municipalities' broad authority to govern land use" by means of their "local zoning authority," but to "withdraw from municipalities the authority to enact local laws imposing land reclamation standards that were stricter than the State-wide standards under the MLRL" ( Matter of Gernatt Asphalt Prods. v. Town of Sardinia , 87 N.Y.2d 668, 681–682, 642 N.Y.S.2d 164, 664 N.E.2d 1226 [1996] ). As "[o]ne of the most significant functions of a local government is to foster productive land use within its borders by enacting zoning ordinances" ( DJL Rest. Corp. v. City of New York , 96 N.Y.2d 91, 96, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001] ), a zoning law will be invalidated on preemption grounds only where there is a "clear expression of legislative intent to preempt local control over land use" and even where, as here, the legislature has provided an express preemption clause, it is only when local zoning ordinances affect "the details or procedures" established by state law for such operations that the preemption rules apply ( Matter of Norse Energy Corp. USA v. Town of Dryden , 108 A.D.3d 25, 31, 964 N.Y.S.2d 714 [2013], affd sub nom. Matter of Wallach v. Town of Dryden , 23 N.Y.3d 728, 992 N.Y.S.2d 710, 16 N.E.3d 1188 [2014] ). Traditional land use considerations, such as "compatibility with neighboring land uses, and noise and air pollution" are not subject to preemption, express or implied ( id. at 37, 964 N.Y.S.2d 714 ). "A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole" ( Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d at 684, 642 N.Y.S.2d 164, 664 N.E.2d 1226 ), and, as the land use violations charged herein do not otherwise implicate the actual operation and process of defendants' mining operation, they are subject to local regulation and to enforcement through the criminal process.
Accordingly, the order is reversed, defendants' motion to dismiss the accusatory instruments is denied, the accusatory instruments are reinstated, and the matter is remitted to the Justice Court for all further proceedings.
MARANO, P.J., and GARGUILO, J., concur.
BRANDS, J., taking no part.