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Joseph Marando Nurseries - Decision 2, June 25, 1998

Decision 2, June 25, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of the -

Application of JOSEPH MARANDO NURSERIES, INC.,
for a permit to construct and operate a sand and gravel mine,
in Manorville, Town of Brookhaven, Suffolk County.

DEC Application No. 1-4722-01831/00001

DECISION OF THE DEPUTY COMMISSIONER

June 25, 1998

DECISION OF THE DEPUTY COMMISSIONER

The attached hearing report of Administrative Law Judge ("ALJ") Edward Buhrmaster in the matter of the application of Joseph Marando Nurseries, Inc. ("the Applicant") for a permit to construct and operate a sand and gravel mine in Manorville, Town of Brookhaven, Suffolk County, is hereby adopted as the Decision in this matter subject to my comments below.

This matter concerns a mining project that is proposed in conjunction with an expansion of the Applicant's nursery. Because the project site is within the compatible growth area of the Central Pine Barrens on Long Island, the project is subject to review under the Central Pine Barrens Comprehensive Land Use Plan.

The issue under consideration in the ALJ's report is whether the project complies with the plan's limits on vegetation clearing. The ALJ concludes that it does not, and I agree with his conclusion. Therefore, the mining permit must be denied.

Because I am denying the mining permit, no findings statement under the State Environmental Quality Review Act is needed. [Environmental Conservation Law Section 8-0109(8).]

For the New York State Department of Environmental Conservation
/s/
By: Carl Johnson, Deputy Commissioner

Albany, New York
June 25, 1998

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1550

In the Matter

- of the -

Application of JOSEPH MARANDO NURSERIES, INC.,

for a permit to construct and operate a sand and gravel mine,
in Manorville, Town of Brookhaven, Suffolk County.

DEC Application No. 1-4722-01831/00001

HEARING REPORT

- by -

/s/
Edward Buhrmaster
Administrative Law Judge


PROCEEDINGS

Background and Brief Project Description

Joseph Marando Nurseries, Inc. ("the Applicant") proposes to mine about one million cubic yards of sand and gravel from a site at County Road 111 and Chapman Boulevard in Manorville, Town of Brookhaven, Suffolk County. The site is within the compatible growth area of the Long Island Central Pine Barrens. As mining progresses over the course of, at most, about 4.5 years, the site would be reclaimed to expand the Applicant's nursery business.

The Applicant requests that the Department of Environmental Conservation ("DEC", or "the Department") issue a Mined Land Reclamation Law permit pursuant to Article 23, Title 27, of the New York State Environmental Conservation Law ("ECL") and Parts 420-423 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Parts 420-423). On May 13, 1997, Department Staff issued a notice denying the permit since, in Staff's view, the project would not conform to a provision of the Central Pine Barrens Comprehensive Land Use Plan ("Pine Barrens Plan"). By letter dated June 10, 1997, the Applicant requested a hearing pursuant to 6 NYCRR 621.7(f).

As lead agency, the Town of Brookhaven issued a Positive Declaration for the project on February 28, 1994. On August 14, 1995, the Town accepted a Final Environmental Impact Statement, thereby concluding project review under the State Environmental Quality Review Act ("SEQRA"), ECL Article 8. The Town also has approved a site plan.

On August 26, 1996, the Central Pine Barrens Joint Planning and Policy Commission ("the Commission") approved the project, finding that it complies with the Pine Barrens Plan. However, that determination was reversed after a court challenge by the Long Island Pine Barrens Society, the Society's executive director, Richard L. Amper, and several area residents and taxpayers. Granting their Article 78 petition, Judge Mary Werner of the State Supreme Court, Suffolk County, ruled on February 10, 1998, that the Commission's approval violated the Pine Barrens Plan and was therefore invalid. (A copy of Judge Werner's decision is attached to this report as Appendix "A".)

- - DEC Legislative Hearing

On September 4, 1997, I conducted a legislative hearing on the application for a mining permit. About 200 people attended the hearing, which was held at the Manorville Fire Department building on Silas Carter Road. Comments made at the hearing and in letters to this office were almost evenly divided on the subject of permit issuance. The comments are summarized in a hearing report I wrote that is attached to a decision of Deputy Commissioner Carl Johnson, dated December 29, 1997.

- - Issues Conference

On September 5, 1997, I presided over an issues conference in this matter. Participating at the conference, held at DEC's Region 1 office in Stony Brook, were attorneys for the Applicant, the Department Staff, and the Long Island Pine Barrens Society, which filed a request for full party status.

At the conference, Staff maintained that the mining permit should be denied because, in Staff's view, the project does not comply with limits on vegetation clearing as set out in Section 5.3.3.6.1 and Figure 5-1 of the Pine Barrens Plan. Staff argued that if the project does not conform to the Pine Barrens Plan, issuance of a mining permit is prohibited according to ECL Section 57-0123(3)(a). Staff's view was endorsed by the Pine Barrens Society.

No issue was proposed by Staff or the Pine Barrens Society under SEQRA or the Department's mining statutes and regulations. Also, Staff prepared a draft mining permit whose terms were fully acceptable to the Applicant. (A copy of the draft permit was attached to my previous hearing report.)

- - Rulings on Issues and Party Status

In rulings made at the issues conference and confirmed in a memorandum dated September 10, 1997, I said there was a threshold legal issue whether DEC may or must deny approval of the mining permit application pursuant to ECL Section 57-0123(3)(a) if it determines that the project does not comply with some aspect of the Pine Barrens Plan. Second, I said that should the Department determine that it has the authority or responsibility to deny permit approval, another issue is whether the project actually complies with the plan's limits for vegetation clearing.

This second issue, I said, involves considerations of what constitutes the project site as well as which of the plan's site clearance standards applies. More specifically, does the project site include the pre-existing 62-acre nursery as well as the 38-acre expansion area, as DEC Staff argues, or solely the 38-acre expansion area, as the Applicant argues? Also, is the applicable maximum site clearance standard from Plan Figure 5-1 35 percent for two-acre minimum lot size residential zoning, as Staff argues, or 65 percent for commercial use, as the Applicant argues?

I ruled that the threshold issue was one of law, concerning the Department's jurisdiction in this matter. I said that, as a legal issue, it was suitable for briefing and did not require a fact-finding hearing. Despite its request for full party status, I granted the Pine Barrens Society amicus status to brief the threshold issue according to a timetable the Applicant and Staff had already negotiated.

My rulings on issues and party status were not appealed by any of the issues conference participants.

- - Initial Hearing Report

Based on the parties' briefs, I prepared a hearing report on the threshold legal issue. My report concluded that DEC had no authority or responsibility to deny approval of the mining permit application pursuant to ECL Section 57-0123(3)(a) on the ground that the project does not comply with some aspect of the Pine Barrens Plan. Therefore, I said, it was not necessary to reach the issue of whether the project actually complies with the plan's limits for vegetation clearing. Rather than reach that issue, I recommended that the draft mining permit, already prepared by DEC Staff, be issued to the Applicant, the Applicant having accepted its terms and no objections to the project unrelated to the Pine Barrens Plan having been asserted by DEC Staff or the Pine Barrens Society.

- - Deputy Commissioner's Decision

On December 29, 1997, Deputy Commissioner Carl Johnson issued a decision rejecting my conclusion that DEC lacks authority or responsibility to evaluate this project's conformity with the Pine Barrens Plan. He rejected my conclusion given language in ECL 57-0123(3)(a) that " . . . no state approval, certificate, license, consent [or] permit . . . for the . . . disturbance of any land within [the Central Pine Barrens] area shall be granted, unless such approval . . . conforms to the provisions of [the plan]."

Deputy Commissioner Johnson said a determination whether the project conforms to the plan is a responsibility of the Department, and is to be fulfilled by the Department independently, and not by reference to the Commission's judgment on the matter. Accordingly, he remanded the matter to me for a hearing on whether the proposed development is, or is not, in compliance with the plan.

- - Adjudication of Plan Conformity

During a conference call held on January 8, 1998, the parties' counsel agreed that adjudication of the compliance issue could proceed on a set of stipulated facts and without a fact-finding hearing. The parties' agreed statement of facts was submitted under a cover letter of Lori Riley, DEC Region 1 attorney, dated February 4, 1998, and has been inserted in the section of this report headed "Findings of Fact."

According to a briefing schedule the parties also negotiated, initial briefs were to be received by March 2, 1998, and reply briefs by March 13, 1998. In accordance with the schedule, timely initial briefs were received on behalf of all parties. The Applicant's and Department Staff's briefs, both dated February 27, were received on March 2, 1998. The Pine Barrens Society's initial brief, dated February 17, was received on February 26, 1998.

Although there was an allowance for reply briefs from all parties, I received only one, from Department Staff. That brief, dated March 12, was received on March 13, 1998. It included a copy of a decision dated February 10, 1998, by Judge Mary Werner of State Supreme Court, Suffolk County, in Long Island Pine Barrens Society, Inc. et al v. Central Pine Barrens Joint Policy Planning & Policy Commission and Joseph Marando. The judge's decision invalidated the Commission's project approval.

On March 20, 1998, I conducted a conference call with the parties' attorneys. The Applicant's counsel said the Applicant intended to appeal Judge Werner's decision, and the parties agreed that this separate matter before DEC should proceed to its conclusion in the meantime.

On April 18, 1998, I requested briefs addressing what effect Judge Werner's decision should have on this case. I asked whether Judge Werner had decided the same issues that remained in this proceeding, and whether DEC should be considered bound by her decision, even if it would not have been bound by the Commission's determination. Timely briefs on this limited issue were received from all parties.

In May and early June, 1998, I had several other calls with the parties' attorneys. I wanted to whether or how the Commission considered language proposed by the Town of Brookhaven for the Plan's vegetation clearing standard. An additional submission dated May 29, 1998, was received from Department Staff, and a response dated June 11, 1998, was received from the Applicant. Upon receipt of the Applicant's response on June 11, 1998, the hearing record closed.

The record of hearing exhibits has been expanded to include the additional documents that all parties agreed would be included, as reflected in a letter from Department counsel dated February 10, 1998.

- - Appearances for the Parties

The parties have been represented by the same counsel throughout this matter.

The Applicant has been represented by Martha Luft, Esq., of Twomey, Latham, Shea & Kelley, LLP, of Riverhead, New York.

Department Staff have been represented by Lori Riley, DEC Region 1 attorney, whose office is in Stony Brook, New York.

The Pine Barrens Society has been represented by Regina Seltzer, Esq., of Bellport, New York.

ISSUE FOR ADJUDICATION

Does the Applicant's proposed project comply with vegetation clearing limits in the Pine Barrens Plan?

- - Position of the Applicant

The project complies with the vegetation clearing limits in the Pine Barrens Plan. The appropriate clearance standard is 65 percent, which should be applied to the 38-acre nursery expansion area. The project meets this standard.

- - Position of Department Staff and the Pine Barrens Society

The project does not comply with the vegetation clearing limits in the Pine Barrens Plan. The appropriate clearance standard is 35 percent, which should be applied to the 100 acres encompassing both the existing 62-acre nursery and the 38-acre expansion area. Because all natural vegetation has already been cleared from the existing 62-acre nursery, any further clearance of natural vegetation on the remaining 38 acres would violate the plan.

FINDINGS OF FACT

The following findings are a restatement of the "Agreed Statement of Facts" submitted under Ms. Riley's cover letter of February 4, 1998.

  1. The Applicant, Joseph Marando Nurseries, Inc., has applied to DEC for a mining permit. The permit application documents have been marked as Exhibit Nos. 8-A through 8-G. Additional documents to be marked as exhibits are: the Reclamation Plan included as part of the application, to be marked as Exhibit No. 8-H; the Town of Brookhaven's Statement of Findings on the Final Environmental Impact Statement for Manorville Nursery Expansion Site Plan and Hot Water Street Land Division, issued 3/25/96, to be marked as Exhibit No. 13; the February 11, 1997, letter from Mark Carrara to Felix Grucci, to be marked as Exhibit No. 14; the March 5, 1997, letter from Gladys N. Gentile to Mark Carrara, to be marked as Exhibit No. 15; the Town's Final Environmental Impact Statement for Manorville Nursery Expansion Site Plan and Hot Water Street Land Division, to be marked as Exhibit No. 16.
  2. The Applicant proposes to mine approximately one million cubic yards of sand and gravel over the course of, at the most, an approximately 4.5-year period.
  3. The subject site is located at County Road (C.R.) 111 and Chapman Boulevard, Manorville, Town of Brookhaven, Suffolk County, and is within the compatible growth area of the Central Pine Barrens. (Exhibit Nos. 8-D, 8-E, 8-F, 8-G.)
  4. The Applicant currently is an owner of 100.0 contiguous acres at the site consisting of a 62-acre existing nursery and a 38-acre proposed expansion. (Exhibit Nos. 8-D, 8-E, 8-F, 8-G.)
  5. The 38 acres consist of Suffolk County Tax Map ("SCTM") Parcel No: District 200 - Section 509 - Block 7 - Lot 1.3 (19.0 acres) and, adjacent thereto to the east, SCTM Parcel No.: District 200 - Section 509 - Block 7 - Lot 1.4 (19.1 acres) each of which front on C.R. 111. The 62 acres consist of SCTM Parcel No.: District 200 - Section 462 - Block 2 - Lot 15.1 (34.2 acres) which fronts on C.R. 111 and, abutting directly to the south, SCTM Parcel No.: District 200 - Section 509 - Block 6 - Lot 1.1 (27.8 acres). (Exhibit 8-G). Suffolk County Tax Maps for District 200, Sections 462 and 509, have been marked as Exhibit 17.
  6. The 62 acres have been disturbed and are the site of an existing nursery that has been in operation for approximately eighteen years. (Exhibits 8-D, 8-E, 8-F, 8-G.)
  7. The Applicant proposes to mine a total of 32 acres, comprised of 24.7 acres of the 38 acres and 7.3 acres of the 62 acres. (Exhibits 8-D, 8-E, 8-F, 8-G.)
  8. Approximately 100 percent of the 62 acres has already been cleared, eighteen years ago. (Exhibits 8-D, 8-E, 8-F, 8-G.)
  9. Sixty-five percent of the 38 acres will be cleared pursuant to the application. (Exhibits 8-D, 8-E, 8-F, 8-G.)
  10. New clearing will only occur on the 38 acres.
  11. The 100 acres is zoned A Residence 2, a zoning category in which the minimum area for a one-family residence lot size is 80,000 square feet (2 acres) or more. (Code of the Town of Brookhaven ["Town Code"], Volume II, Land Use Legislation, 85-56; Town Zoning Map Sheet No. 9 and 85-7 of Town Code.)
  12. Ingress and egress for the 38 acres will be partially through the 62 acres. (Exhibit 8-G.)
  13. Chapter 85 of the Town Code contains the ordinances for the Town of Brookhaven which regulate zoning.
  14. The Central Pine Barrens Comprehensive Land Use Plan, Volume I, Version of 5/1/96, Exhibit 10 in this proceeding, is hereinafter referred to as the Pine Barrens Plan.
  15. Section 5.3 of the Pine Barrens Plan sets forth the standards and guidelines for the compatible growth area of the Central Pine Barrens.
  16. The 100 acres is in the compatible growth area of the Central Pine Barrens.
  17. The standards which the Applicant must meet under the Pine Barrens Plan which are at issue here are set forth in Section 5.3.3.6.1 ("Vegetation Clearance Limits") as follows:

    "The clearance of natural vegetation shall be strictly limited. Site plans, surveys and subdivision maps shall delineate the existing naturally vegetated areas and calculate those portions of the site that are already cleared due to previous activities.

    Areas of the site proposed to be cleared combined with previously cleared areas shall not exceed the percentages in Figure 5-1. These percentages shall be taken over the total site and shall include, but not be limited to, roads, building sites and drainage structures. The clearance standard that would be applied to a project site if developed under the existing residential zoning category may be applied if the proposal involves multi-family units, attached housing, clustering or modified lot designs. Site plans, surveys and subdivision maps shall be delineated with a clearing limit line and calculations for clearing to demonstrate compliance with this standard.

    To the extent that a portion of a site includes Core property, and for the purpose of calculating the clearance limits, the site shall be construed to be the combined Core and CGA portions. However, the Core portion may not be cleared except in accordance with Section 5.2 of the Plan."

  18. Figure 5-1 of the Pine Barrens Plan sets forth the maximum site clearance standards. (A copy of this figure, part of Exhibit No. 10, is attached as Appendix "B" to this report.)
  19. The Applicant has not and is not seeking nor has it been granted from the Town a use variance for the proposed nursery expansion and/or mining at the subject site. By letter dated April 4, 1996, the Applicant received notice from the Town that its Planning Board voted on March 25, 1996, to approve his site plan with conditions. (The April 4, 1996, letter from Pamela Betheil to Walter Conlon has been marked as Exhibit No. 18.)
  20. Chapter 53 of the Town Code contains the Town's ordinances governing Sand and Gravel Pits, Excavations, and Removal of Topsoil.
  21. All Exhibits referenced above are hereby agreed by the parties to be authentic, although the parties do not necessarily agree that the information contained therein is accurate and/or relevant.

DISCUSSION

In his December 29, 1997, interim decision, Deputy Commissioner Carl Johnson ruled that the Department has its own responsibility to determine whether the Applicant's project conforms to the Pine Barrens Plan. That issue - - whether the project conforms to the plan - - was briefed by the parties based on a set of agreed facts as documented above. In question is whether the project conforms to the plan's limits on vegetation clearance. Relevant considerations include determining the applicable site clearance standard as well as the acreage to which that standard should be applied.

- - Relevant Site Clearance Standard

Pine Barrens Plan Section 5.3.3.6.1 requires that areas of a site proposed to be cleared combined with previously cleared areas shall not exceed the percentages in Plan Figure 5-1. That figure (Appendix "B" to this report) provides a range of maximum site clearance limits (expressed in percentages) based on various classifications delineated on the figure's left-hand side.

As the parties have stipulated, the 62-acre existing nursery and the 38-acre expansion area are both zoned A Residence 2, a category in which the minimum area for a one-family residence lot is 80,000 square feet (2 acres). (Finding of Fact No. 11.) As noted by counsel for Department Staff and the Pine Barrens Society, the maximum site clearance for such a lot is 35 percent, according to Figure 5-1. Therefore, these parties argue, no more than 35 percent of the natural vegetation can be removed from the site under consideration, whether it is merely the 38-acre expansion area or the 100 acres encompassing both the existing nursery and the expansion area.

This contrasts with the Applicant's analysis, under which a wholesale nursery, as a commercial use, is entitled to a 65 percent maximum clearance standard, despite its location in a residential zone. As noted by the Applicant, permitted uses in an A Residence 2 district include "all principal uses, accessory uses and uses authorized by special permit which are permitted in the A Residence District" [Section 85-59(A)(1) of the Brookhaven Town Code] (emphasis added). The "principal uses" in the A Residence District are set forth in Code Section 85-57(A) and include "open farming," with permission for "the sale at retail or wholesale of farm, garden or nursery products produced on the premises." [Town Code Section 85-57(A)(4).] Therefore, the Applicant argues, a wholesale nursery is permitted as a commercial use in the A Residence 2 District, and a 65 percent maximum site clearance standard, applicable to "commercial, industrial and other or mixed use," governs the nursery expansion.

Deciding which clearance standard to apply - - 35 percent, as proposed by Department Staff and the Pine Barrens Society, or 65 percent, as proposed by the Applicant - - requires that one determine whether Figure 5-1 should be read in terms of zoning or use. The figure is not entirely clear in this regard, and the parties have cited no precedents from prior cases. However, the most sensible interpretation, and the one most consistent with the Commission's apparent intent, is that use, not zoning, is the controlling factor. According to this interpretation, the Applicant would be allowed up to 65 percent site clearance for commercial development in what is acknowledged by all parties to be a residentially-zoned district.

Employing use to determine the clearance standard makes sense in terms of the make-up of Figure 5-1, which sets varying clearance standards in residential zones, but not in other areas. For residential zones, the maximum site clearance depends on the minimum lot size required by zoning. The smaller the lot size, the greater the clearance allowance, presumably because the smaller the lot, the more it will be dominated by any house that is built there. Minimum lot sizes vary within Brookhaven's business and industrial districts as well. However, Figure 5-1 contains one uniform standard for "Commercial, Industrial and Other of Mixed Use," regardless of lot size.

While the Applicant's site is in a residential zone, its intended use is not residential. Therefore, it does not make sense to impose a restriction that was apparently developed with residential use in mind. Rather than limit the Applicant to the 35 percent clearance appropriate to the zoning district in which it is located, it makes sense to allow it the 65 percent clearance apparently intended for non-residential uses.

Not only is this sensible, it is consistent with Brookhaven's own land use regulations, which implement the Plan in the town. Town Code Section 85-448(1) addresses vegetation clearance limits and basically tracks the language of Section 5.3.3.6 of the Pine Barrens Plan. Following language identical to Section 5.3.3.6.1 of the Plan, the Town Code adds the following sentences:

Residential development within residentially-zoned areas shall comply with the residential clearing limit categories contained in Figure 5-1.
Commercial development in residentially-zoned areas
shall comply with the "Commercial, Industrial and
Other or Mixed Use" clearing limit category.
Town Code Section 85-448(E)(1)(b). (Emphasis added.)

While these two sentences do not appear in the Plan itself, they are significant by their inclusion in the Town's regulations, since these regulations required the review and approval of the Commission. [ECL Section 57-0123(1)]. If the regulations were not consistent with how the Commission intended Figure 5-1 to be applied, the Commission could have rejected them, since by law the regulations must conform to the plan.

Of course, the Deputy Commissioner had ruled that DEC has an obligation, independent of the Commission, to determine compliance with the vegetation clearance standard. However, in doing so, DEC should not ignore the fact that in considering this standard, both the Commission and the Town allowed 65 percent clearance for the nursery expansion area. [See Commission Statement of Findings, Exhibit No. 11, at p.13; and Town Statement of Findings, Exhibit No. 13, at pp.4-5.] The Commission's action is especially significant because the clearance standard is its own, and therefore the Commission deserves some deference as to how it is interpreted and applied.

The Town notes in its findings statement that the scope of the clearing in the expansion area was reduced by the Applicant from 80 percent, as originally proposed, to 65 percent in response to public and agency comment, specifically to comply with the plan's clearance standard. The Town states that according to the standards to be implemented by the Town in accordance with the plan, "clearance of existing vegetation on properties used for commercial purposes may not exceed 65 percent of the site." [Exhibit No. 13, p.5.] Therefore, as one of the mitigation measures, the Town required that the 65 percent clearance limit for the 38-acre expansion site be a covenant on the final site plan. [Exhibit No. 13, p.15.]

The 65 percent clearance limit was also invoked in the recent Supreme Court decision of Judge Werner. While invalidating the Commission's approval of this project, Judge Werner nonetheless affirmed that the plan allows for 65 percent clearance of the project site. Judge Werner disagreed with the Commission not with regard to the clearance standard, but as to how that standard applies to the site. In other words, Judge Werner viewed the site as more than just the 38-acre expansion area.

Department Staff describes as "ridiculous" the Applicant's argument that its nursery is a "commercial use" entitled to 65 percent clearance, suggesting it is agricultural instead. But however one describes the use, it is certainly not residential, and therefore standards developed for residential uses should not be applied.

Department Staff also notes that the Town has not required or granted a rezoning or use variance. (Finding of Fact No. 19.) Staff contends that a rezoning is necessary for conducting a commercial use on property that is zoned residential. However, as the Applicant argues, its use is a permitted principal use in the district where it is situated. The project does not require rezoning or a use variance, and the Town approved the site plan without either.

- - Application of Site Clearance Standard

Having determined the relevant clearance standard, one must still apply that standard to the site in question. The parties disagree as to what that site is, the Applicant arguing that it is the 38-acre expansion area, and Department Staff, joined by the Pine Barrens Society, arguing that it is the 38-acre expansion area and the 62-acre existing nursery.

I agree with Department Staff and the Pine Barrens Society that the site clearance standard must be considered in relation to the 100 acres encompassing the existing nursery and the intended expansion area. To limit consideration to the expansion area alone, since this is the only area where new "clearing" is anticipated, would work against the protection of natural vegetation by, in effect, "writing off" the vegetation loss that has already occurred at the project site.

The standard in the plan governing vegetation clearance states that the clearance of natural vegetation "shall be strictly limited," and that "areas of the site proposed to be cleared combined with previously cleared areas shall not exceed the percentages in Figure 5-1." According to the plan, these percentages "shall be taken over the total site" (emphasis added) (Plan Section 5.3.3.6.1).

The Applicant contends that "the total site" over which the appropriate percentage should be measured is the 38-acre expansion area, because this is the only area where clearing would occur. For the Pine Barrens Plan standard on vegetation clearance, "clearing" is "the removal of any portion of the natural vegetation found on a site exclusive of any vegetation associated with active agricultural or horticultural activity or formalized landscape and turf areas." [See Exhibit 10, Plan Section 5.3.3.6.] (Emphasis added.) Given this definition, the only "clearing" that the Applicant has proposed would take place on the 38-acre expansion area (Finding of Fact No. 10), since the other 62 acres were cleared 18 years ago to create the existing nursery. (Findings of Fact Nos. 6 and 8.) Sixty-five percent of the 38 acres would be cleared pursuant to the Applicant's proposal. (Finding of Fact No. 9.) This amounts to 24.7 acres, with the remaining 13.3 acres remaining in a naturally wooded state.

According to Department Staff and the Pine Barrens Society, vegetation clearance must be considered in the context of the full l00 acres. I agree with this view because mining will extend onto all parcels which together constitute the 100-acre project site.

As noted in Plan Section 5.3.1, the vegetation clearance standard is one among many adopted by the Commission to regulate "development" in the compatible growth area of the Pine Barrens. "Development" includes "commencement of mining, excavation or material alteration of grade or vegetation on a parcel of land excluding environmental restoration activities" [ECL Section 57-0107(13)(c); see also Plan Section 4.3.5].

The Applicant proposes to mine a total of 32 acres, comprised of 24.7 acres of the 38-acre expansion area and 7.3 acres of the existing 62-acre nursery. (Finding of Fact No. 7.) The 62-acre nursery is actually two separate tax map parcels (one 34.2 acres and the other 27.8 acres), as is the 38-acre expansion area (one parcel being 19 acres and the other 19.1 acres). (Finding of Fact No. 5.) As is apparent from a comparison of the regrading plan (Exhibit No. 8-G) and the relevant tax maps (Exhibit No. 17), mining would occur on all four of these parcels, and parts of both the 62-acre existing nursery and the 38-acre expansion area would be affected by each phase of the project. Ingress and egress for the expansion area would be partially through the existing nursery. (Finding of Fact No. 12.)

As noted above, the vegetation clearance standard was adopted for development in the compatible growth area. Therefore, it makes sense to apply it to the entire site where development is proposed. Combining the areas of the site proposed to be cleared (24.7 of the 38 acres in the expansion area) with the previously cleared areas of the development site (all 62 acres of the existing nursery) equals 86.7 acres of clearance, or 86.7 percent clearance of the site where mining is proposed. This is an unacceptable clearance level, whether one adopts the 35 percent limit proposed by Department Staff and the Pine Barrens Society, or the 65 percent limit proposed by the Applicant.

Adopting the Applicant's view - - that one should consider only that portion of the site where clearing is proposed - - is unreasonable because it effectively "writes off" the loss of natural vegetation that has already occurred. Following the Applicant's analysis would undermine the plan's intent to prevent excessive clearing of natural vegetation.

The plan warns that "excessive clearance of natural vegetation can result in severe soil erosion, excessive stormwater runoff, and the destruction or reduction of pine barrens plant and wildlife habitat." The plan also notes that the establishment and maintenance of non-native vegetation requires both irrigation and fertilizer application, given the low fertility of soils that are common to the Pine Barrens, and that as native Pine Barrens vegetation is replaced through development, increased contamination and a general change in the ecosystem can be expected. (Plan Section 5.3.3.6.)

Interpreting "site" as including the entire site of development, and not just that portion where clearing would occur, is also supported by the Commission's failure to adopt a proposal by the Town of Brookhaven, as argued by the Pine Barrens Society.

According to the Pine Barrens Society, when the final plan was being adopted, Brookhaven proposed a "clarification" of Section 5.3.3.6.1 stating that the percentages in Figure 5-1 "shall be applied to the total area of the project site where natural vegetation is present . . . On development sites which through legal compliance with State and local municipal codes and regulations have become completely unvegetated or partially vegetated in natural vegetation, including but not limited to agricultural and horticultural uses, the clearing percentages in Figure 5-1 shall be applied only to those portions and quantities of such sites on which natural vegetation is present and which is not to be harvested in accordance with an existing agricultural or horticultural use" (emphasis added) [See Exhibit "B" to the Pine Barrens Society's February 17, 1998, brief.]

In its brief, the Pine Barrens Society said the Commission rejected this proposal, as evidenced by the Commission's own minutes. Because the minutes were not attached to the brief, I asked the Pine Barrens attorney, Ms. Seltzer, to produce them. Instead of minutes, she produced the Commission's SEQRA findings statement for the Plan, which indicates only that during the SEQRA comment period and throughout the planning process, the need for clarification of the clearance standard became apparent, and that the language of the standard was changed in order to address the issue. Commission meeting summaries subsequently produced by Department Staff confirm that as the plan was being finalized, the Commission sought to and did in fact clarify the clearance standard. While the summaries do not reflect an explicit rejection of Brookhaven's proposal, the rejection is implied by the Commission's approval of language that differs from it significantly.

As argued by the Pine Barrens Society, the Commission's passing over Brookhaven's proposed language in favor of that which became part of the final Plan suggests a rejection of Brookhaven's concept that the total site area should be only that area where natural vegetation is present. Instead, the final plan states that areas of the site proposed to be cleared "combined with previously cleared areas" shall not exceed the percentages in Figure 5-1.

The Applicant contends that applying the clearance standard to the entire 100 acres amounts to illegal discrimination, on the theory that if someone else had purchased the 38-acre expansion area and decided to start his own nursery, he would be able to clear an appropriate amount of vegetation that Mr. Marando, as the owner of the adjoining 62 acres, is forbidden to clear. Actually, however, the Applicant's land ownership is not relevant; it is his intent to perform a regulated activity (mining) that extends onto the existing nursery site. Contrary to the Applicant's assertion, DEC's position is not premised upon merging the 38-acre and 62-acre parcels based upon their common ownership and location adjacent to each other.

The Applicant is correct that had there been no hill on the expansion parcel which required excavation, it would not have been subject to the vegetation clearance standard at all, since by itself "the use of land for horticulture" is specifically exempted from the definition of "development" in the Pine Barrens statute. [See, ECL 57-0107(13)(v).] The Applicant says this state of affairs is ironic, but it is precisely the point: The hill's removal subjects the project to the standard.

Finally, because the Pine Barrens Plan itself would not restrict vegetation clearance to the same extent if no excavation were involved, the Applicant contends it is fundamentally unfair to subject it to a stricter standard than compliance with best management practices, which the plan applies in the usual context for horticulture. [Plan Section 5.3.3.10.1.] This issue - - whether the plan is fair - - is outside the scope of this hearing, which is concerned only with whether the project conforms to the plan's requirements.

- - Judge Werner's Decision

The project before the Commission involved the mining-facilitated expansion of the nursery as well as an unrelated land division to divide a 19-acre parcel from the 38-acre expansion site. (Exhibit No. 11, Commission statement of findings, p.1.) On the issue of vegetation clearance, the Commission found that the 38-acre nursery expansion area and the 19-acre parcel resulting from the land division are limited to 65 percent and 35 percent clearing, respectively, according to Plan Figure 5-1. The Commission found that the nursery expansion complied with the 65 percent clearance limit since 24.7 acres, or 65 percent of the 38-acre expansion site, were expected to be cleared of natural vegetation. [Exhibit No. 11, p.13]

In her decision invalidating the Commission's determination, Judge Werner noted that the project "involves the clearing of all vegetation on 24.7 acres on a 38-acre mining site," and that in its approval, the Commission found that this constituted 65% of the 38-acre site."

Continuing, however, Judge Werner wrote that the "total site" actually consists of 119 acres, including the 62 acres of existing nursery, the 38 acres of the proposed expansion, and 19 acres constituting the land division. Considering the "total site" to be "the areas to be cleared combined with the areas already cleared on the adjacent nursery," Judge Werner found there would be 86.7 acres (or 72.85 percent) clearance, "in violation of the plan which again allows for only 65% clearance."

Concluding that the Commission approved the project though it did not conform to the Pine Barrens Plan, Judge Werner deemed the approval "arbitrary and capricious" and said it must be annulled.

The 19-acre land division is not relevant to the Department's review because it is unrelated to the nursery expansion and to the mining activity which is the basis for DEC's jurisdiction. At any rate, all the parties to this hearing agree with the Commission that the parcel (which the Applicant represents it has since sold) should be subject to a maximum site clearance of 35 percent, and should be considered separately from the other acreage. This obviously was not the approach taken by Judge Werner, but since the land division does not concern DEC, neither should this discrepancy.

What is significant is that Judge Werner agrees that the "total site" is more than just the 38-acre expansion area, and includes the 62-acre existing nursery.

Because Judge Werner's decision is dated February 10, 1998, after issuance of the Commissioner's interim decision, I asked the parties to consider what effect it should have on this matter. Department Staff claim that according to the doctrine of collateral estoppel, the Applicant is bound by the judge's decision as to what constitutes the project site, and that as to this issue, I and the Commissioner must rule in Staff's favor. However, the Applicant claims it should not be bound by Judge Werner's decision, since she determined the total site to be 119 acres (including the 19-acre land division), and in that sense the issue she determined is not identical to the one in this proceeding. The Applicant also claims that application of the vegetation clearance standard was not properly raised in the Article 78 petition before Judge Werner, and therefore the Applicant never had a full and fair opportunity to address this issue. (This second claim cannot be addressed based on the existing record, although if the Applicant did not have a full and fair opportunity to contest on this issue, collateral estoppel could not properly be invoked. See Schwartz v. Public Administrator, 24 N.Y.2d 65.)

All parties agree that Judge Werner's decision does not prevent DEC from issuing its own decision here, although the Applicant argues that if the Deputy Commissioner determines he is bound by Judge Werner's decision, he should stay this proceeding pending a determination of the Applicant's intended appeal of that decision, which could still be reversed.

I agree that this matter should proceed to a final decision, consistent with the Deputy Commissioner's expressed intent that DEC independently review this project for conformity with the plan regardless of the outcome of the Commission's review. My prior hearing report made the Deputy Commissioner aware of the Society's court challenge to the Commission's determination, and had he wanted the matter stayed pending the final result of that litigation, he could have ordered it then.

At any rate, while my analysis does not depend on Judge Werner's decision, the two are consistent with regard to the plan's application to the mining project. Also, assuming DEC and the Commission have concurrent jurisdiction on issues of plan conformity, DEC would not have been obliged to enter the litigation over the Commission's determination, and could consider the issues raised there on its own, upon receipt of a complete mining application, as has been done in this proceeding.

CONCLUSIONS

  1. For review of the mining project against the Pine Barrens Plan's vegetation clearance standard, the maximum allowable site clearance is 65 percent, to be applied in relation to the 100 acres encompassing both the 62-acre existing nursery and the intended 38-acre expansion area.
  2. Given the previous clearance of all natural vegetation from the 62-acre existing nursery and the proposed removal of 24.7 acres of natural vegetation from the 38-acre expansion area, the areas of the site proposed to be cleared combined with previously cleared areas of the site equals 86.7 acres, or 86.7 percent of the entire site, which is greater than the 65 percent maximum site clearance allowed under Plan Figure 5-1.
  3. Therefore, the project does not comply with the Pine Barrens Plan standard for vegetation clearance.

RECOMMENDATION

Assuming that DEC has authority independent of the Pine Barrens Commission to review this project for conformance to the Central Pine Barrens Comprehensive Land Use Plan, the Department should deny the application for a mining permit because the project does not conform to the plan standard for vegetation clearance.

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