January 9, 2013 —
TOWN OF NASSAU, NY — The New York State Appellate Court has affirmed that towns have the ability to limit activities in the town, even if a state agency has issued a license that allows the activity. The case was Troy Sand & Gravel versus the Town of Nassau and the decision was issued on December 27, 2012.
Troy was seeking to open a quarry in the town. The NYS Department of Environmental Conservation (DEC) conducted an environmental review under the State Environmental Quality Review Act (SEQRA) and issued a permit under the Mined Land Reclamation Law (MLRL). Troy was also seeking a special-use permit from the town, and the town decided to hire a planning consultant to help officials analyze the requested permit and the environmental aspects of the project. The town also said Troy had to pay for the consultant.
Troy took the town to court, saying that the town did not have the authority to supersede the DEC in the matter and did not have the authority to charge Troy for itconsultant. A lower court agreed and issued a partial injunction against the town.
The town appealed, and the appellate court reversed the lower court’s ruling. In the decision, the appellate court wrote, “DEC’s SEQRA determination did not supplant the town’s zoning regulations governing review of special-use permit applications, nor did it predetermine the town’s decision on the plaintiff’s permit application. Likewise, the SEQRA findings did not bind the town to issue the requested special-use permit or preclude it from employing the procedures—and considering the standards—in its own local zoning regulations, including the environmental and neighborhood impacts of the project.”
The court said that while the town is bound by the DEC’s determination regarding the SEQRA process, the town is still entitled to its own process. The court wrote, “The town remains entitled to independently review plaintiff’s application for the special-use permit in accord with the standards contained in its zoning regulations, including consideration of the ‘health, safety, welfare, comfort and convenience of the public,’ both in general and in the immediate neighborhood, as well as ‘the environmental impact.’
“The town, in its review of, among other things, the environmental impact of the proposed quarry under its zoning regulations, will necessarily take into consideration and abide by DEC’s SEQRA determination and mining permit approval, but these DEC determinations do not displace local special-use permit review. Of course, the town’s ultimate determination is subject to Civil Practice Law and Rules (CPLR) Article 78 review, and will be upheld only if it is rational and supported by substantial evidence.”
The case has similarities with two cases that are now working their way through the appellate court in which towns have passed bans on high-impact activities such as gas drilling with hydraulic fracturing.