Third Department Upholds Denial of Special Use Permit For Quarry

This dispute is a recurring theme on our blog, as this is the parties’ seventh appearance before the Appellate Division since 2003. The dispute arose when Petitioner Troy Sand & Gravel Company, Inc. (“Petitioner”) applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau in Rensselaer County (“Town”), and for a special use permit and site plan approval from the Town.

In 2006, DEC issued a positive declaration as lead agency under the State Environmental Quality Review Act (“SEQRA”), and Petitioner prepared a draft environmental impact statement (“EIS”). After a public comment period, Petitioner prepared a final DEIS in 2007, and DEC issued its SEQRA findings approving the project and granting the mining permit.  The Town then began its own review of the environmental impact of the proposed quarry as part of its zoning determination, however, this review was limited to information collected during the SEQRA process (note: this is an over-simplification of decisions on two separate appeals in this dispute). The Town Board then denied Petitioner’s application, and Petitioners commenced an Article 78 proceeding to annul the Town Board's determination. The Supreme Court dismissed the petition and upheld the Town Board's denial of a special use permit. Petitioners appealed.

Petitioners challenged almost every aspect of the Town Board's decision as arbitrary and capricious, as it was contrary to the final EIS and not based on the SEQRA record.  However, while the Court did find that the Town Board's determinations on the general land use standards were either founded on information outside of the SEQRA record or entirely inconsistent with the final EIS, the Court nevertheless found that the Town Board's denial of Petitioner’s application was properly based upon three of the four special use permit standards in the final EIS.

The Court found there was ample evidence in the SEQRA record that Petitioner’s proposed quarry would be a sizable operation and create a highly intensive industrial land use where only one small commercial entity currently existed. The Court also found that the Town Board was justified in concluding that the probability of decreased property values associated with the proposed land use rendered the second special use standard unsatisfied. On this issue, the Town Board relied on a property value impact analysis prepared by an expert whose qualifications had not been challenged. The Town Board also rationally concluded that the proposed project would alter the essential character of the Town and the immediate neighborhood, which is comprised of residential lots and undeveloped forest land. Accordingly, the lower court’s ruling in favor of the Town was affirmed.

The case was Troy Sand and Gravel Co., Inc. v Fleming, 156 A.D. 3d 1295 (3 Dep’t 2017).

Prior cases in this dispute include Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170 [2015]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1188 [2015]; Troy Sand & Gravel Co., Inc. v. Town of Nassau, 101 A.D.3d 1505 [2012]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 89 A.D.3d 1178 [2011], lv dismissed 18 N.Y.3d 920, 941 N.Y.S.2d 554 [2012]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d 1377 [2011]; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 80 A.D.3d 199 [2010] ).

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