In the Matter of the Application of Troy Sand & Gravel Co., Inc. and Henkel Realty Associates, LLC, Petitioners- Plaintiffs
Town of Nassau; TOWN BOARD OF THE TOWN OF NASSAU; RAYMOND SENEY, Individually and as Nassau Supervisor; MICHAEL ROLAND, Individually and as a Member of the Nassau Town Board; BARBARA FAUSNER, Individually and as a Member of the Nassau Town Board; IAN HART, Individually and as a Member of the Nassau Town Board; PLANNING BOARD OF THE TOWN OF NASSAU; MELISSA TONI, Individually and as a Member of the Nassau Planning Board; WALTER BERTRAM, Individually and as a Member of the Nassau Planning Board; ANDREW DAVIS, Individually and as a Member of the Nassau Planning Board; TERESA EDDY, Individually and as a Member of the Nassau Planning Board; RONALD GALLENTIER, Individually and as a Member of the Nassau Planning Board; JONATHAN GOEBEL, Individually and as a Member of the Nassau Planning Board; MICHAEL O'LEARY, Individually and as a Member of the Nassau Planning Board; THE CODE ENFORCEMENT AND BUILDING DEPARTMENT OF THE TOWN OF NASSAU; KEVIN M. CONDON, Code Enforcement Officer for the Town of Nassau., Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
TUCZINSKI, CAVALIER, BURSTEIN & COLLURA, P.C. Attorneys for Troy Sand & Gravel Petitioners (Andrew W. Gilchrist, Esq.)
GREENBERG & GREENBERG Attorneys for Respondents (Mark D. Greenberg, Esq.) and Joseph M. Catalano, Esq. and Edward Fassett, Esq.
Michael C. Lynch, J.
Petitioner Henkel Realty owns a 214 acre parcel of property located in the Town of Nassau. The property is located in the Town's "rural residential" district, where, pursuant to the Town's Land Use Regulations (Local Law 2 for 1986), commercial mining is a permitted use allowable by special use permit and subject to site plan review. In February 2004, petitioner Troy Sand and Gravel submitted applications for a special use permit and site plan approval wherein it sought to establish a 90 acre greywacke quarry on the land owned by Henkel Realty.
In September 2004, the Town adopted Local Law 3 of 2004, which imposed a one hundred eighty day moratorium on the acceptance and approval of commercial excavation applications. The Town Board extended the moratorium in January 2005 (Local Law 1 for 2005), July 2005 (Petitioner's Exhibit L), and January 2006 (Local Law 1 for 2006), which extended the moratorium through July 23, 2006. Notably, three days before the expiration of the final moratorium, respondents adopted Local Law 4 for 2006, which, in part, amended the Town's Land Use Regulations to prohibit all commercial excavation in the Town. In August 2006, petitioner Troy Sand and Gravel was notified that, pursuant to Local Law 4 for 2006, its February 2004 application for a special use permit and site plan approval had been rejected by the Town Board (Petitioner's Exhibit AA).
In September 2006, petitioner commenced a combined declaratory judgment/Article 78 proceeding wherein it challenged the August 2006 rejection of the special use permit/site plan review applications which petition was later amended to add a challenge to the adoption of Local Law 4 for 2006 ( Troy Sand & Gravel Inc. v. Town Board of the Town of Nassau et. al., Rensselaer County Index No. 219221). A companion case was commenced challenging the adoption of Local Law 4 ( Hanson et. al v. Town Board of the Town of Nassau, Supreme Court, Rensselaer County, Index 219634). By correspondence dated January 17, 2007 ("So Ordered" by this Court on January 19, 2007) petitioner confirmed the parties' request that this Court resolve, first, the issues raised with respect to the validity of Local Law 4 for 2006 prior to considering the remaining causes of action asserted in the petition. By Decision and Order dated August 31, 2007 and October 19, 2007, this Court determined that Local Law 4 for 2006 was invalid.
In the meantime, in May 2007, the New York State Department of Environmental Conservation issued a permit under the Mined Land Reclamation Law authorizing petitioner to undertake mining activities on the Henkel parcel. On October 5, 2007, also while the validity of Local Law 4, 2006 was in question, respondents passed a moratorium prohibiting, in part, submission and review of mining applications (Local Law 2 of 2007). Following this Court's October 19, 2007 decision and order concluding that the Local Law was invalid, by correspondence dated October 22, 2007 (Petition, Exhibit RR), petitioners requested that respondents continue to process the February 2004 site plan approval and special use permit application in accordance with the Town's Land Use Regulations (Local Law 2 for 1986). Citing the October 2007 moratorium, respondents advised that it was prohibited from processing the applications as requested.
Sometime prior to September 2007, TSG began performing "certain activities" including tree removal, on the Henkel parcel. Believing such work to be "clearcutting" as defined by the Town's Land Use Regulations and thus, prohibited, the Town sought, by Order to Show Cause dated September 24, 2007 (Lynch J.), an Order pursuant to Town Law 268 declaring that the activity was unlawful.On November 2, 2007, the Town's Code Enforcement Officer issued a "Notice of Violation/Stop Work Order" wherein it advised petitioner that the parcel was being "developed without the required approvals from the Town of Nassau...in violation of the [Town's Land Use Regulations]" (Petitioner's Exhibit TT).
By Order to Show Cause dated November 15, 2007 (Lynch, J.), petitioner now seeks an Order enjoining enforcement of the November 2, 2007 Notice of Violation/Stop Work Order. Petitioner argues that (1) the Notice of Violation/Stop Work Order is illegal and unenforceable because "[a]ll" provisions of the Town's land use regulations "pertaining to mining", specifically Articles V(E), VI(B)(3) and VI(F), are preempted by the New York State Mined Land Reclamation Law (Petition Paragraph 165, 169); (2) the Notice of Violation/Stop Work Order is illegal and unenforceable because it does not specify the activities that are in contravention of the Town's Land Use Regulations or identify the conditions under which the work may resume (182, 186, 188); and (3) that the Town's Land Use Regulations "in terms of requirement for Special Use Permit and/or Site Plan Review" are preempted and thus, illegal and unenforceable ( 193). Respondents counter (1) that the Local Law is not preempted, (2) that the issue is not ripe for review, and (3) that petitioners failed to exhaust their administrative remedies prior to seeking judicial review of the Notice of Violation/Stop Work Order.
At the outset, it must be noted that the issue presented on this Order to Show Cause is the validity of the November 2007 Stop Work Order/Notice of Violation and the provisions cited therein. So framed, the Court finds that the issue is ripe for review. Relevant to this question, Local Law No. 2 for 1986 empowers the respondent's Code Enforcement Officer to issue a Notice of Violation:
Whenever, in the opinion of the Code Enforcement Officer and after proper inspection there appears to exist a violation of any provision of this Local Law or of any procedure adopted pursuant thereto, the Code Enforcement Officer shall serve written notice upon the appropriate person responsible for the alleged violation. This notice shall inform the recipient of the following:
a. the nature and specific details of the violation;
b. the date by which the violation must be remedied or removed, which period shall not exceed ...