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In re Troy Sand & Gravel Co., Inc.

Supreme Court of New York, Third Department

December 28, 2017

In the Matter of TROY SAND & GRAVEL CO., INC., et al., Appellants,
v.
DAVID F. FLEMING JR., as Supervisor of the Town of Nassau, et al., Respondents.

          Calendar Date: November 20, 2017

          Tuczinski, Gilchrist, Tingley, Cavalier & Ferradino, PC, Troy (Andrew W. Gilchrist of counsel), for appellants.

          Donohue, Sabo, Varley & Huttner, LLP, Albany (Bruce S. Huttner of counsel), for respondents.

          Goldberg Segalla LLP, Buffalo (Meghan M. Brown of counsel), for Associated Builders and Contractors, Inc. - Empire State Chapter, amicus curiae.

          Harris Beach, PLLC, Albany (Victoria A. Graffeo of counsel), for The Business Council of New York State, Inc., amicus curiae.

          Couch White, LLP, Albany (Adam J. Schultz of counsel), for New York State Construction Materials Association, Inc. and another, amici curiae.

          Underberg & Kessler LLP, Buffalo (Edward P. Yankelunas of counsel), for New York State Builders Association, amicus curiae.

          Before: McCarthy, J.P., Rose, Devine and Mulvey, JJ.

          MEMORANDUM AND ORDER

          Rose, J.

         Appeals from a judgment and an amended judgment of the Supreme Court (McNally Jr., J.), entered July 21, 2016 and September 20, 2016 in Rensselaer County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town Board of the Town of Nassau denying the request of petitioner Troy Sand & Gravel Co., Inc. for a special use permit.

         In 2003, petitioner Troy Sand & Gravel Co., Inc. applied for a mining permit from the Department of Environmental Conservation (hereinafter DEC) to operate an open pit hard rock quarry requiring the blasting and crushing of solid rock formations on a 214-acre parcel of land in the Town of Nassau, Rensselaer County, located within a rural residential land use district that is zoned to allow commercial excavation by special use permit subject to site plan review. Troy Sand subsequently applied for the required special use permit and site plan approval from respondent Town Board of the Town of Nassau. As lead agency for the coordinated State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) process, DEC issued a positive declaration and Troy Sand prepared a draft environmental impact statement (hereinafter EIS) in 2006. After a public hearing and comment period, Troy Sand prepared a final EIS in 2007 and, shortly thereafter, DEC issued its SEQRA findings approving the project and granting the mining permit. The parties have since engaged in related litigation that has brought the matter before us on six prior occasions (see 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');">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');">89 A.D.3d 1178 [2011], lv dismissed 18 N.Y.3d 920');">18 N.Y.3d 920 [2012]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 A.D.3d 1377');">82 A.D.3d 1377 [2011]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 A.D.3d 199');">80 A.D.3d 199 [2010]).

         In May 2010, the parties entered into a stipulation, which was memorialized as an order by Supreme Court (Lynch, J.), whereby they agreed that Troy Sand's application would be reviewed under Local Law No. 2 (1986) of the Town of Nassau (hereinafter Local Law No. 2). In August 2012, Supreme Court enjoined the Town Board from reassessing the environmental impacts of the proposed quarry to the extent already addressed by DEC's SEQRA determination. As a result, the Town Board issued a resolution of completeness and referred Troy Sand's application to respondent Planning Board of the Town of Nassau for review and recommendation. As required by Local Law No. 2, the Planning Board then held a four-day public hearing on the application. In December 2012, before the Planning Board issued its recommendation, we vacated the injunction against the Town Board, finding that DEC's SEQRA determination did not preclude the Town Board from considering the environmental and neighborhood impacts of the project in accord with the standards set forth in the Town's local zoning regulations (Troy Sand & Gravel Co., Inc. v Town of Nassau, 101 A.D.3d at 1507-1508). As a result of our decision, the Town Board rescinded its prior completeness resolution and reopened the administrative record. In February 2015, upon petitioners' appeal challenging the Town Board's recission, we clarified that, although the Town Board retained the authority to undertake an independent review of Troy Sand's application, it was not permitted to evaluate the proposed quarry's environmental impact based on information collected outside of the SEQRA process (Troy Sand & Gravel Co., Inc. v Town of Nassau, 125 A.D.3d at 1173). In July 2015, over the protest of Troy Sand, the Town Board, joined by the Planning Board, held a second public hearing on the application. After that hearing, the Town Board denied Troy Sand's application, as recommended by the Planning Board. Petitioners then commenced this CPLR article 78 proceeding seeking to annul the Town Board's determination. Supreme Court (McNally Jr., J.) dismissed the petition, thereby upholding the Town Board's denial of a special use permit, and petitioners now appeal from the judgment and amended judgment. [1]

         First, we reject petitioners' contention that the Town Board violated the parties' May 2010 stipulation by holding its own public hearing pursuant to Town Law § 274-b. The stipulation provided, as relevant here, that the Town Board would review Troy Sand's application pursuant to Local Law No. 2, which requires that an application to the Town Board for a special use permit be referred to the Planning Board for a public hearing. Upon the advice of its counsel, the Town Board found that Town Law

         § 274-b, which was enacted after Local Law No. 2 (see L 1992, ch 694), required it to hold its own public hearing in addition to the one prescribed by Local Law No. 2 (see Town Law ยง 274-b [6]). While petitioners read the stipulation to say that Local Law No. 2, alone, would govern Troy Sand's application, we find that the stipulation is silent as to any other state or federal laws that may also apply to the review of a special use permit, including the indisputably applicable SEQRA and the Town Law. In our view, the clear intent of the stipulation was to avoid the application of prior or subsequent land use regulations of respondent Town of Nassau, not ...


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