Schadow v. Wilson

OPINION OF THE COURT Casey, J. Pursuant to the Town of Ballston Zoning Law, soil mining is designated as a permissible use and may be allowed by special use permit granted by respondents. To be entitled to a special use permit, the applicant must meet the four standards or guidelines set forth in Town of Ballston Zoning Law § 26.3. Petitioner, as lessee of certain property located on Goode Street in the Town of Ballston, Saratoga County, applied to the Department of Environmental Conservation (hereinafter DEC) pursuant to ECL article 23 for a permit to operate a sand and gravel mining operation on the property (see, ECL 23-2711) and also applied to respondents for a special use permit. DEC apparently granted petitioner a permit, but respondents determined that the standards for the issuance of a special use permit had not been met and, therefore, denied [55] petitioner’s application. Petitioner then commenced this CPLR article 78 proceeding, arguing that respondents’ authority to deny a special use permit for a mining operation had been preempted by ECL article 23 or, in the alternative, that respondents’ determination was arbitrary and capricious. Supreme Court agreed with petitioner’s preemption argument and annulled respondents’ determination, resulting in this appeal by respondents. As originally enacted, the State’s Mined Land Reclamation Law (ECL art 23, tit 27) included an express supersession clause, which provided that the provisions of the Mined Land Reclamation Law "shall supersede all other state and local laws relating to the extractive mining industry” (ECL 23-2703 [former (2)]). Despite the broad language of the supersession clause, it was construed as inapplicable to the provisions of a local law or ordinance that established a district where a mining operation was not allowed because the purpose of the local law was to regulate land use generally and it exerted only "incidental control” over the extractive mining industry (Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126, 131). In Matter of Hunt Bros. v Glennon (180 AD2d 157, revd 81 NY2d 906), this Court was called upon to determine the applicability of the supersession clause to the provisions of the Adirondack Park Agency (hereinafter APA) Act (Executive Law art 27), which allowed sand and gravel mining operations within the Adirondack Park upon review and approval by the APA. Concluding that the statutory provisions that empower the APA to approve or disapprove mining operations go well beyond the "incidental control” of a zoning law that prohibits such uses in particular districts, we held that the APA approval process related to the extractive mining activity itself and was superseded by ECL 23-2702 (former [2]). The Court of Appeals reversed, concluding that "[i]nasmuch as the APA’s mission concerns the broad area of land use planning within the Adirondack Park district, its enabling statute is not a law 'relating to the extractive mining industry’ ” (Matter of Hunt Bros. v Glennon, 81 NY2d 906, 909, supra). Similar to the APA Act, the purpose of the Town of Ballston Zoning Law is to regulate land use generally, not to regulate the actual operation of extractive mining in the Town (see, Matter of Frew Run Gravel Prods. v Town of Carroll, supra). Just as the APA Act empowers the APA to grant or deny a permit for a mining operation in the Adiron [56] dack Park, the ordinance at issue here empowers respondents to grant or deny a special use permit for soil mining in the Town of Ballston. The standards or guidelines specified in the Town of Ballston Zoning Law, which must be considered by respondents on any application for a special use permit in the Town, are no more intrusive on the extractive mining industry than the statutory standards for APA approval of mining operations in the Adirondack Park. We conclude, therefore, that the provisions of the Town of Ballston Zoning Law, which empower respondents to grant or deny a special use permit for a soil mining operation in the Town and prescribe the standards that must be considered by respondents in deciding whether to grant a special use permit, constitute the type of "incidental control” that is not subject to ECL 23-2703 (2). ECL 23-2703 (2) was amended in 1991 and now expressly permits "local laws or ordinances of general applicability” as long as they do "not regulate mining and/or reclamation activities regulated by state statute, regulation, or permit” (ECL 23-2703 [2] [a]). The ordinance at issue clearly meets this requirement, for it regulates land use generally, i.e., the location of mining operations in the Town, not the mining activity itself. The amended statute also provides that "[w]here mining is designated a permissible use in a zoning district and allowed by special use permit, conditions placed on such special use permits shall be limited to [certain subjects unrelated to the mining activity]” (ECL 23-2703 [2] [b]). Petitioner argues that this latter provision precluded respondents from doing anything other than issuing the special use permit with the limited conditions, but we disagree. By its terms, the provision is only applicable when mining is a permissible use and it is allowed by special use permit. Although mining is a permissible use in the Town, respondents decided not to allow it by special use permit. The denial of the special use permit affects only the location of the mining operation, which involves a matter of land use regulation, whereas the imposition of conditions on a special use permit granted for a mining operation affects the mining activity unless the conditions are limited to those permitted by ECL 23-2703 (2) (b). Having concluded that respondents were not prohibited by ECL 23-2703 (2) from deciding whether to grant or deny petitioner’s application for a special use permit based upon the general standards prescribed by the Town of Ballston Zoning Law, we turn to the question of whether respondents’ [57] determination to deny the application was arbitrary and capricious. There is no entitlement to a special use permit, but rather petitioner was required to show that the contemplated use conforms with the standards imposed by the zoning ordinance and then the permit must be granted unless there are reasonable grounds for denying it (see, Matter of C & A Carbone v Holbrook, 188 AD2d 599; see also, Matter of Carrol’s Dev. Corp. v Gibson, 53 NY2d 813, affg on mem below 73 AD2d 1050). It is clear from the record that respondents concluded that petitioner had failed to show that the proposed mining operation conformed with any of the four specific standards or guidelines set forth in the zoning ordinance, a conclusion that is supported by the record. The first guideline requires that the proposed use be in harmony with the appropriate and orderly development of the district and not detrimental to the orderly development of adjacent districts. As one of respondents pointed out at the hearing, the site of the proposed mining operation is rural but it is adjacent to a residential district only 600 feet away. The relevant portion of the tax map reveals that the area along Goode Street has been subdivided into numerous lots, most of which are less than two acres, and one resident stated that numerous children live in the neighborhood. The appearance of 35 to 40 interested persons at a hearing on the issue demonstrates that the area is not sparsely populated. It is clear that respondents’ conclusion as to petitioner’s failure to show conformance with the first guideline of the zoning ordinance did not reflect merely speculative problems or general objections of area residents, but instead constituted a finding that a mining operation would not be in harmony with the orderly development of the adjacent residential neighborhood, a finding that is supported by the record and should not be disturbed by this Court (see, Matter of Connors v Sullivan, 171 AD2d 982, 983). The second guideline requires that the traffic generated by the use not be hazardous or inconvenient to the neighborhood or conflict with the normal traffic of the neighborhood, a standard that is substantially different than that considered by the DEC in its review of the proposed mining operation. In addition to the vehicular traffic typical for a county road, there is evidence in the record that bikers and walkers use Goode Street on a daily basis. One resident noted that someone had been hauling dirt out of the proposed site for the past two years, requiring her to keep her windows closed and her [58] asthmatic son indoors. Respondents were amply justified, therefore, in concluding that the truck traffic generated by the mining operation would be inconvenient to the neighborhood and conflict with the normal traffic of the neighborhood. As to the third guideline, a real estate appraiser expressed his opinion at the hearing that a mining operation could have a very negative effect on property values in the neighborhood, and one resident noted that an old gravel pit along Goode Street had become a haven for teenagers and was often used by hunters to sight their rifles. The fourth guideline requires that the public convenience and welfare be substantially served by the proposed use, and petitioner’s failure to make the showing required by the guideline is in and of itself sufficient to provide the necessary rational basis for respondents’ denial of petitioner’s application (see, Matter of King Rd. Materials v Garafalo, 173 AD2d 931, 933). There is no evidence in this record that the public convenience and welfare would be served by a sand and gravel operation at the site proposed by petitioner. The judgment should, therefore, be reversed and the determination should be confirmed.