Town wins latest round in quarry fight
Appelate judges rule town acted appropriately in denying permit
NASSAU, N.Y. » The town has won the latest round in a 15-year battle against a proposal to build a quarry along Route 66 in the rural community.
The Appellate Division of state Supreme Court, in a ruling released Thursday, dismissed the appeal of Troy Sand & Gravel Co. of the town’s latest rejection of its request for a special-use permit to begin mining a 214-acre parcel bordered by routes 43 and 66, Dunham Hollow Road and Gardner Hill Road.
Troy Sand & Gravel claimed in its third lawsuit involving the proposal, which dates back to 2003, that the 2015 decisions by the town and planning boards in Nassau were “arbitrary, capricious and lacked a rational basis,” citing a mine permit issued to the company for the project in 2007 by the state Department of Environmental Conservation after an environmental review. A state Supreme Court judge ruled last year, however, that despite the state review and issuance of the mining permit, the town still had the authority to reject the proposal if officials determined it didn’t fit within the scope of its zoning law.
Under that law, the town and planning boards have the authority to make their own determinations on whether a proposed nonconforming use for the land is acceptable within the area where it would be located. Both boards said in a 110-page finding that the quarry was not an acceptable special use in the Rural Residential District in which it was proposed.
In unanimously affirming Judge Richard McNally’s rejection of Troy Sand & Gravel’s latest challenge, the three-judge panel dismissed point-by-point several claims included in the suit, including that the town failed to follow legal guidelines for considering a special-use permit set in deciding a lawsuit filed by the company in 2011 that sought to limit the town’s consideration of the proposal strictly to the findings of the DEC’s 2007 review. While the judges admitted some information from beyond the DEC’s review were included in the town’s finding, the final decision was made in accordance with relevant information.
“[ T]he Town Board’s denial of Troy Sand’s application based upon three of the four special use permit standards properly found its rationale in the final [ Environmental Impact Statement],” according to the ruling. “These standards require the Planning Board and the Town Board to ‘consider the health, safety, welfare, comfort and convenience of the public, in general, and that of the residents of the immediate neighborhood in particular, and the environmental impact’ of any proposed special use.”
Troy Sand & Gravel also claimed town Supervisor David Fleming should have recused himself from any discussions or votes because he lives about a mile from the site. The panel, however, said the fact that Fleming lived in the vicinity of the site did not constitute a conflict of interest that would preclude him from doing his job as town supervisor.
“The location of real property owned by Fleming and his family near the site of the proposed quarry is an interest that Fleming has in common with many other citizens of the Town,” the judges wrote, “and, in our view, nothing in the record clearly demonstrates that he stood to gain any financial or other proprietary benefit from the Town Board’s denial of Troy Sand’s application that would necessitate annulling his vote or the determination.”
The greywacke sandstone quarry would be mined for as many as 150 years, according to legal papers, producing road stone and aggregate. The town brought the first legal action in the case, challenging in 2007 the findings of the DEC’s environmental review, but that claim was rejected. AFter filing its first lawsuit in 2011, Troy Sand & Gravel sought legal action again in 2015, this time asking a state Supreme Court judge to block a planned public hearing on the proposal to be hosted jointly by the town and planning boards. That request was rejected by both a judge and the Appellate Division.