Appeals Court Reverses On Standing, But Upholds Grant of Extraordinary Hardship Waiver for Mine in LI Pine Barrens

Westhampton Property Associates, Inc. (“Respondent”) owns and operates a sand and gravel mine partly in the “core preservation area” of the Long Island Central Pine Barrens and Town of Southampton. In 2011, Respondent applied to the Central Pine Barrens Joint Planning and Policy Commission for an extraordinary hardship waiver to vertically expand the mine from 44 feet above sea level to 26 feet above sea level. On October 17, 2012, the Commission granted Respondent the waiver. Richard Amper, in his individual capacity and as the Long Island Pine Barrens Society’s Executive Director, as well as two members of the Society’s Board of Directors, commenced a CPLR Article 78 proceeding to review the Commission's determination. The Supreme Court denied the petition, finding the petitioners lacked standing, and furthermore, the determination was not arbitrary, capricious, or an abuse of discretion.

On appeal, the Court first determined the lower court erred in holding the Petitioners lacked standing. Petitioners established Amper, in both his individual and professional capacities, used and enjoyed the Pine Barrens to a greater degree than most other members of the public. Thus the threatened injury to Amper by development in the core preservation area of the Central Pine Barrens was within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993. In addition, the Society had organizational standing test, as its interests in the proceeding were germane to its purposes, and neither the asserted claim nor the relief sought required participation of the individual members. Thus, both Amper and the Society had standing to challenge the determination at issue.

Regardless, the lower court properly dismissed the proceeding on the merits, as the record showed that Respondent’s proposed expansion needed an extraordinary hardship waiver. The Commission’s finding that any hardship was not self-created, and that Respondent had no other beneficial use of the property absent the hardship waiver, was not arbitrary and capricious. Likewise, the record supported finding the subject property, used as a mine since 1981, would be subject to various zoning restrictions if used as anything other than as a mine. As such, the Supreme Court’s dismissal of the proceeding was upheld.

The case was Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning and Policy Commission, 2016 WL 1576954 (2 Dep’t April 20, 2016).

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