Google Earth satellite image of CMA Mine on april 4, 2021.

A decision by state’s highest court last week will directly affect the outcome of Riverhead Town’s lawsuit against the State DEC and a Calverton sand mine operator, Assembly Member Fred Thiele said in an interview Friday.

The New York Court of Appeals upheld a May 2021 Appellate Division decision that annulled State DEC permits issued to Sand Land Corporation in Southampton.

“This case is going to help Riverhead a lot,” Thiele said. The circumstances of the two cases are “basically on all fours,” he said, meaning they align very closely.

“The DEC was ignoring the towns when it came to renewals and expansions and now they can’t,” Thiele said.

A 1991 amendment to the N.Y. Mined Land Reclamation Law, which is part of the State Environmental Conservation Law, bars the DEC from processing all applications for mining permits in Suffolk and Nassau Counties where local zoning codes prohibit mining uses in the area proposed to be mined.

The Sand Land site is within an area rezoned residential by the Town of Southampton in 1972. Riverhead Town first banned sand-mining in existing industrial districts in 1998. Sand-mining is also specifically prohibited in the Agricultural Protection Zone (APZ) which was applied to the CMA site on the corner of Osborn and Youngs avenues in 2004.

But the State DEC was interpreting the 1991 amendment to apply to new applications only — not to applications to expand existing mines. The DEC argued that the 1991 amendment did not apply to pre-existing nonconforming use — mines that were issued permits by the the DEC before the 1991 amendment was enacted.

The Appellate Division decision dispensed with that notion in 2021 and on Thursday, the state’s high court agreed.

“The plain language of ECL 23-2703 (3) (the 1991 amendment) evinces an intent that the provision should apply, not just to applications for new mining permits, but also to applications for modification and renewal,” Acting Chief Judge Anthony Cannataro wrote in a 12-page decision Feb. 9.

The amendment “does not eliminate or alter [the] non-conforming use. Rather, the statute acts only as a protection against further expansion of those mining activities — beyond the permissible non-conforming use,” the court ruled. “We hold that DEC may process renewal and modification applications when such applications seek to mine land that falls within the scope of an undisputed prior nonconforming use.”

“Although we agree that the statute must be read to be consistent with mine owners’ constitutionally protected rights, we reject Sand Land’s assertion that mine owners have a constitutional right to mine their parcels to an indefinite depth, limited only by DEC’s safety regulations,” Cannataro wrote.

The DEC must determine the scope of the “undisputed prior nonconforming use” and whether itincludes the vertical expansion sought by the applicant — a question which had not been litigated in the Sand Land case, the court said.

To determine whether a the expansion of a prior nonconforming mine is “within the limits of its prior non-conforming use,” the DEC must determine “whether Sand Land manifested an intent to mine the additional acres and the expanded depth it sought in its permit applications, and the extent to which the town recognized Sand Land’s use of the parcel,” the court said.

Riverhead Town sued the DEC in February 2021 over the agency’s handling of CMA’s application to vertically expand its mine to 89 feet below groundwater.

Riverhead officials are concerned that the excavation into groundwater on a site adjoining the old landfill may draw contaminated liquids out of the town-owned site and pose a risk to private and municipal drinking water wells in the vicinity. That concern was one of the town’s reasons for seeking lead agency status under the State Environmental Quality Review Act to review the CMA Mine expansion application.

The DEC — which over the town’s objection took lead agency on review of the application — determined the vertical expansion would not have a significant negative environmental impact. The town argued that DEC processed the application in direct violation of the amended state law. The suit also names the mine operator as a defendant.

MORE COVERAGE:Riverhead joins forces with other East End towns in sand mine battle
Riverhead hauls DEC into court over Calverton mine expansion

The Court of Appeals’ Sand Land decision is “right on point” for Riverhead’s case, Thiele said,.

“The DEC is going to have to start over with Riverhead,” he said. “They’re going to have to send a new letter to Riverhead” to establish the scope of CMA’s prior nonconforming mining use, Thiele said.

“At the time the mine became nonconforming — had they [the mine operator] already evinced intent to go down deeper?” he said.

Ultimately, the 1991 amendment to the state’s mining law will bar DEC from processing any application that seeks to mine beyond the scope of prior nonconforming use.

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Denise is a veteran local reporter, editor, attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including investigative reporting and writer of the year awards from the N.Y. Press Association. She is a founder, owner and co-publisher of this website.Email Denise.