Riverhead Zoning Board: Calverton mine operator has no pre-existing right to mine below water table on site next to old landfill

A sand mine off Osborn Avenue, adjacent to Riverhead Town’s defunct landfill, does not have a pre-existing right to mine below the water table, the Riverhead Zoning Board of Appeals ruled last week.

The ZBA on Thursday denied the mine operator’s appeal of the town’s zoning officer’s determination that its lawful pre-existing mining use does not include mining below the water table.

Riverhead Zoning Officer Greg Bergman issued a letter of pre-existing use determination on June 16 based on his finding that there is no evidence in the record that the site’s prior owners had any “affirmative intent” to mine below the water table.

The current owner of the mined site, CMA Mine, sought the pre-existing use determination as a result of the settlement of a lawsuit with  the Town of RIverhead over whether CMA should be granted permission to dig deeper within the existing footprint of the mine to a depth of 100 feet — which is 89 feet below the groundwater table. 

CMA, a company owned by Steven Mezynieski of Southampton, has owned the 20-acre site on the corner of Osborn and Youngs avenues since 2017. The site was already an active mine when CMA bought it. Mining operations there date back to 1938. 

The Town of Riverhead banned sand mining in 1998, which changed the legal status of the mine in question — then operated by Suffolk Cement— to a prior nonconforming use. The sand and gravel mining operation was allowed to continue pursuant to an existing DEC permit. Whether it would be allowed to expand the prior nonconforming use remained a matter of dispute.

CMA filed the application to modify its state permit in February 2019. The DEC, over the town’s objection, declared itself “lead agency” for purposes of review under the State Environmental Quality Review Act. When the DEC then issued a “determination of non-significance” (also known as a “neg dec”), finding that mining into the groundwater on the site would not have a significant negative environmental impact, the town in 2021 sued to annul the DEC’s decision, naming both the DEC and CMA Mine as defendants. 

MORE COVERAGE: State DEC poised to approve sand and gravel mining 89 feet into groundwater in Calverton (Oct. 27, 2020)

CMA argued in the lawsuit that it has a vested right to mine the land below the water table as a prior non-conforming use.

In a stipulation of settlement made in April, the town and the company agreed that CMA would apply to the building and planning department for a letter of pre-existing use stating that its pre-existing, nonconforming use allows digging to the depth of 100 feet. The parties agreed that if the zoning officer denied the application, the town Zoning Board of Appeals would determine, “the scope of the pre-existing use.” 

That was the determination made unanimously by the ZBA on Sept. 25. 

Based upon historical records provided by the applicant, along with Town records, the ZBA determined that site’s documented history nearly 75 years of applications, permits, excavation plans and restoration plans, limits the depth of mine to 30 feet. 

Also, CMA’s own mining permit applications to the DEC made in 2018 2023 both describe the application as a “renewal” and both state “no” to the question “will mining ever occur below the water table” in both applications, according to the ZBA’s determination.

The Zoning Board of Appeals determined that the evidence in the record presented by CMA “fails to establish a manifest intent or support a Letter of Pre-Existing Non-Confirming Use to mine site to a depth below the water table.”

The Zoning Board determined that the record supports a Letter of Pre-Existing Non-Confirming Use for the site described as 14.984 acres and limited to a depth of mine of 30 feet.

Under the stipulation of settlement between CMA and the town, CMA can challenge the ZBA’s determination in court, but it must file the lawsuit within 30 days of being served with the ZBA’s determination. CMA also retains the right to file an application for an expansion of the nonconforming use as per the town’s zoning code.