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Joseph Marando Nurseries - Decision, December 29, 1997

Decision, December 29, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter of

- 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

December 29, 1997

DECISION OF THE DEPUTY COMMISSIONER

The Commissioner has delegated the responsibility to make the following Decision to the Deputy Commissioner for Air and Waste Management.

The attached Hearing Report by Administrative Law Judge ("ALJ") Edward Buhrmaster in the Matter of the Application of Joseph Marando Nurseries, Inc. ("Marando") for a permit to construct and operate a sand and gravel mine in Manorville, Town of Brookhaven, Suffolk County, is hereby accepted, subject to this Decision. This Decision rejects the ALJ's legal conclusion that this Department is legally bound by the Pine Barrens Commission's determination that the project conforms to the Central Pine Barrens Comprehensive Land Use Plan ("Plan"). It also remands this matter for a hearing on the issue whether Marando's proposed project conforms with the Plan.

The Applicant requests a Mined Land Reclamation Law permit for mining at a site delineated as within the "compatible growth area" of Long Island's Central Pine Barrens, pursuant to Environmental Conservation Law ("ECL") Article 57. The Department's Region 1 Staff recommended denial of the permit on the ground that the project would not conform to certain provisions of the Plan. However, the ALJ concluded that DEC has no authority or responsibility to deny approval of the requested mining permit on the basis of non-conformance with the Plan, because the Central Pine Barrens Joint Planning and Policy Commission ("Commission") had previously asserted jurisdiction to review the project and had approved the project as being in compliance with the Plan. There is no dispute that Marando's permit application meets all other applicable requirements and was not otherwise objected to by Staff or others. Therefore, the ALJ's report recommends that further proceedings be dispensed with and that Staff be directed to issue the requested mining permit pursuant to Article 23 of the ECL.

However, I disagree with the ALJ's conclusion that DEC lacks authority and responsibility to evaluate the Marando project's conformity with the Plan. Accordingly, I am rejecting the ALJ's conclusion. Also, I am remanding this matter to the ALJ for a hearing as to whether or not the project conforms to the Plan.

My reasons for rejecting the ALJ's legal conclusion are as follows: First, the Legislature has given a clear instruction 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]."

This language makes it clear that DEC may not grant Marando's mining permit application unless Marando's project conforms to the Plan. I find that a determination whether the project conforms, or does not conform, 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. The Legislature did not direct the Department to accept the Commission's findings uncritically, or otherwise be bound by them. I am aware that the Applicant contends that the Pine Barrens Commission has exclusive jurisdiction to determine whether the proposed mining project conforms to the Plan. In support of its contention, the Applicant cites ECL 57-0123(2)(a) which states that:

"The Commission shall have jurisdiction to review and approve all proposed development...""Development" includes mining. See 57-0107(13).

However, the plain language of this provision only gives the Commission "jurisdiction." But such jurisdiction is concurrent with the Department's. Section 57-0123(2)(a) does not give "exclusive" jurisdiction to the Commission. The provisions of 57-0123(2)(a) in fact show that the Commission is allowed to review proposed development activity that is "found by the Commission after petition by a Commissioner to have a significant adverse impact." Thus the Commission may pick and choose which projects it wants to review, and only those proposed developments that are brought to the Commission's attention need to be reviewed by the Commission. If the Commission's jurisdiction was intended as being exclusive, all developments would need to be reviewed by the Commission. But the legislation makes the Commission review both permissive and concurrent, not mandatory and exclusive. On the other hand, the following subsection, 57-0123(3)(a), mandates that "no state... permit...shall be granted, unless [it] conforms to the [Plan]. Thus, state agency review of Plan conformity or non-conformity is mandatory. Such review is required regardless of whether the Commission has elected to review any particular development's plan. This shows that the legislature intended that the Department should independently review all proposed development projects for conformity with the Plan, regardless of the outcome of the Commission's separate permissive review.

I am aware that in this case the Commission invoked its jurisdiction and voted 3 to 2 to find that the project conforms to the Plan. However, I do not read Article 57 as requiring that I must be bound by the Commission's vote. Rather, Article 57 required me to exercise my independent judgment as to conformity or non-conformity. This is supported by ECL 57-0133(2), which provides that:

"Except as otherwise provided in the provisions of [Article 57], this article shall not affect: (2) the police power of the state to regulate any activity carried upon any lands, in the Long Island Pine Barrens maritime reserve..."The words "carried upon" may have been intended to read "carried out upon."

Conclusion

For the foregoing reasons, I remand this matter to the ALJ for a hearing on whether the proposed development is, or is not, in conformity with the Plan.

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

Albany, New York
December 29, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 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 one million cubic yards of sand and gravel from a site located 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 a five-year period, 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). DEC issued a Notice of Complete Application on February 21, 1997, which was published in its Environmental Notice Bulletin on March 5, 1997, and in Newsday on March 7, 1997. 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. By letter of 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 it complies with the pine barrens land use plan.

Legislative Public Hearing

A Notice of Public Hearing, dated July 29, 1997, was published in the Environmental Notice Bulletin on August 6, 1997, and in the Long Island Advance on August 7, 1997. In addition, the notice was distributed to relevant state and local officials as well as people who had previously expressed interest in the project.

As announced in the hearing notice, I conducted a legislative hearing on September 4, 1997, to receive public comments on the DEC permit application. 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.

Proponents of permit issuance said the project is important to the Applicant's business survival and that keeping the nursery at its present location is consistent with Manorville's desire to maintain its rural, agricultural character. Some expressed concern that if the permit is denied, the project site could be developed with as many as 50 houses, which in turn would increase the burden on public schools and result in higher property taxes. Many proponents characterized the Applicant as a good neighbor and said they enjoyed viewing the trees as they drove past the nursery. Some questioned whether a mining permit is even necessary, arguing that the project does not involving mining, only the leveling of a hill. The Manorville Taxpayers Association noted that the project is in the compatible growth area of the pine barrens, not in the core preservation area, and said its environmental impacts would be minimal.

Opponents of permit issuance were largely property owners within a mile of the project site, including representatives of the Cobbleridge Condominium Association and the Bayberry Homeowners Association. Neighbors said they had bought homes in the residentially-zoned area expecting that sand mining would not be allowed there. They raised concern about devaluation of their properties and alleged various environmental impacts if the project goes forward, including health impacts from blowing dust and possible groundwater contamination, and safety impacts due to increased truck usage of County Road 111.

Project opponents questioned why the Applicant could not simply abandon the mining project and continue planting trees on the existing hillside, stabilizing the slope with perennial grasses. Some opponents said that even if mining is permitted, nothing prevents the Applicant or some future buyer from putting houses in the expansion area. The Long Island Pine Barrens Society argued that the project does not comply with the land use plan for the pine barrens and therefore that DEC is obliged by statute to deny the mining permit.

Issues Conference

As announced in the hearing notice, I conducted an issues conference on September 5, 1997, at the Department's Region 1 office in Stony Brook, New York. Participating at the conference were attorneys for the Applicant, the Department Staff, and the Long Island Pine Barrens Society, which filed a request for full party status (Exhibit No. 9).

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

The Department Staff was represented by Lori Riley, Esq., attorney for Region 1 in Stony Brook, New York.

The Pine Barrens Society was represented by Regina Seltzer, Esq., of Bellport, New York, and its executive director, Richard Amper.

At the conference, Staff maintained that the mining permit should be denied because the project does not comply with limits on vegetative clearing set out in Section () 5.3.3.6.1 and Figure 5-1 of the pine barrens land use plan. Staff argues that, since the project does not conform with the land use plan, issuance of a mining permit is prohibited according to ECL 57-0123(3)(a). Staff's view is 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 is attached to this report as Appendix "A".)

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 57-0123(3)(a) if it determines that the project does not comply with some aspect of the pine barrens land use plan. Second, I said that should the Department determine that it has the authority or responsibility to deny permit approval, another issue exists whether the project actually complies with the plan's limits for vegetative 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, the first consideration is whether the project site includes the pre-existing 62-acre nursery as well as the 38-acre expansion site, as DEC Staff argues, or solely the 38-acre expansion site, as the Applicant argues. The second consideration is whether the applicable maximum site clearance standard from Plan Figure 5-1 is 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. 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. According to that timetable, initial briefs, confined solely to the threshold issue, were to be received on or before October 17, 1997, and reply briefs, answering other parties' initial briefs, were to be received on or before October 31, 1997.

Initial briefs were received from all parties, although replies were received only from the Applicant and Department Staff.

SUMMARY POSITIONS OF THE PARTIES

Position of the Applicant

DEC has no authority to deny the mining permit application based on lack of conformance to the pine barrens land use plan. The authority to review the project against the requirements of the plan belonged solely to the Pine Barrens Commission, which asserted jurisdiction pursuant to ECL 57-0123(2)(a), reviewed the project and found it in compliance with all of the plan's standards and guidelines, including those for vegetative clearing. Once the Commission determined compliance with the plan, the issue was closed and DEC was prohibited from revisiting it. Staff's interpretation of ECL 57-0123(3)(a) as allowing it in effect to overrule the Commission's determination contradicts the plain language and statutory intent of the Pine Barrens Act. Also, it violates basic tenets of statutory construction since it renders provisions of 57-0123(2)(a) conferring jurisdiction to the Commission meaningless and ineffectual.

Position of DEC Staff

In deciding whether to grant a mining permit, DEC has the authority and responsibility to ensure that the project conforms to all provisions of the pine barrens plan, including those for vegetative clearing. The plain meaning of ECL 57-0123(3)(a) is that a state agency must deny approval of an application where it determines that the project does not conform to the plan. Nothing in the other provisions of ECL Article 57, its legislative history, or its expressed legislative intent acts to supersede this clear, unambiguous and specific requirement. Despite the Commission's prior determination of compliance, DEC is required by 57-0123(3)(a) to independently and separately evaluate the project's conformance to the plan, and to deny the mining permit if the project does not conform.

Position of the Pine Barrens Society

DEC has the authority and responsibility to deny the permit application pursuant to ECL Article 3, which vests DEC with the mandatory obligation to insist on rigorous compliance with all environmental regulations. Also, the legislative history of ECL 57-0123(3)(a) demonstrates the lawmakers' intent to preclude loopholes through which an applicant might defeat the purpose and intent of the Pine Barrens Act. Exempting protection of Long Island's aquifer from DEC jurisdiction would be irrational and run counter to the lawmakers' expressed desire for a consistently strong water protection program.

FINDINGS OF FACT

The following findings are based on the exhibits received at the issues conference and are not disputed by the parties.

  1. The Applicant, Joseph Marando Nurseries, Inc., has applied to DEC for a mining permit as part of a planned expansion of its business in Manorville. (The permit application includes documents marked as Exhibit Nos. 8-A through 8-G.)
  2. On May 1, 1996, the Central Pine Barrens Joint Planning and Policy Commission asserted jurisdiction over the nursery expansion. This was done by majority vote, pursuant to ECL 57-0123(2), as confirmed in the commission's State Environmental Quality Review Act findings (Exhibit No. 11).
  3. On August 26, 1996, the Commission passed a resolution stating that based on its review of the project and the relevant standards and guidelines of Chapter 5 of the Central Pine Barrens Comprehensive Land Use Plan (Exhibit No. 10), "the project is in compliance with the relevant standards and is approved." The relevant standards on which the Commission made specific findings included those in 5.3.3.6 which restrict vegetative clearing. (A copy of the Commission's August 26, 1996, resolution is included as part of Exhibit No. 11.)

DISCUSSION

As noted above, the threshold issue here is whether DEC has the authority or responsibility to deny the Applicant a mining permit on the basis of perceived non-compliance with the pine barrens land use plan. I find that DEC has no authority to deny the permit on this basis, and therefore, that Staff's draft permit should be issued, no other grounds having been asserted for its denial.

- - Statutory Background

To address the issue of DEC authority in this matter, one must consider DEC's duties in relation to those of the Central Pine Barrens Joint Planning and Policy Commission. In connection with establishing the Long Island Pine Barrens maritime reserve, the legislature created the Commission "to prepare, oversee and participate in the implementation" of the land use plan for the Central Pine Barrens area "to guide development therein in a manner suitable to the needs for preservation of the core preservation area and compatible growth and development in the compatible growth area." [ECL 57-0103.]

The Commission was established as a "public entity representative of town, county and state government . . . to plan, manage and oversee land use within the Central Pine Barrens area . . ." [ECL 57-0119(1).] It consists of five voting members: one member appointed by and serving at the pleasure of the governor, and four ex officio members who are the county executive of Suffolk County, and the town supervisors of Brookhaven, Riverhead and Southampton. Each ex officio member may appoint a designated representative to exercise his or her powers and perform his or her duties, including the right to vote. An affirmative vote of three or more members is required to pass a resolution or otherwise exercise any functions or powers of the Commission, except the adoption of the land use plan, which requires the Commission's unanimous vote. [ECL 57-0119(2).] State agencies having jurisdiction of land or water within the Central Pine Barrens area or of programs relating to the purposes and goals of Article 57 are directed to offer full cooperation and assistance to the Commission, to the fullest extent practicable. [ECL 57-0119(4).]

The State Legislature charged the Commission with responsibility to prepare the Central Pine Barrens Comprehensive Land Use Plan, which was to be "designed to preserve the Pine Barrens ecology and to ensure the high quality of groundwater within the Central Pine Barrens area and to balance the public and private interests in development and in protection of the Pine Barrens ecology consistent with the objectives of the land use plan." [ECL 57-0121(1).]

On June 28, 1995, the land use plan was approved in final form by the Commission and signed into law by the Commission and the Governor. On May 1, 1996, it was amended by Commission resolution pursuant to ECL Article 57. (The amended plan is Exhibit No. 10.)

Once the plan was adopted by the Commission, each town and village board with jurisdiction within the Central Pine Barrens area was required to conform its land use and zoning regulations to the plan, and to have those regulations approved by the Commission, at which point the plan would be deemed to be implemented in that locality. [ECL 57-0123(1).]

The Commission has statutory authority to review certain proposed "development" within the Pine Barrens area. "Development" includes "commencement of mining, excavation or material alteration of grade or vegetation on a parcel of land excluding environmental restoration activities" [ECL 57-0107(13)(c)]. That would include the type of activity proposed at the Marando Nurseries site.

According to statute, the Commission has "jurisdiction" to review and approve:

  1. All proposed development in critical resource areas;
  2. Developments of regional significance as identified in the land use plan; and
  3. Proposed developments found by the Commission after petition by a Commissioner to have a significant adverse impact on the land use plan. [ECL 57-0123(2)(a).]

In the case of a proposed development which is the subject of a petition by one of the Commissioners, if the Commission by majority vote asserts jurisdiction, such project or action "shall be subject to review by the commission" [ECL 57-0123(2)(a)]. This review may encompass any or all of the standards and guidelines set forth in Volume 1, Chapter 5, of the pine barrens plan. (See, Plan Chapter 4, Review Procedures and Jurisdiction, 4.5.3.3, Review Standards, p. 56.)

The Commission must make a decision within 120 days of asserting jurisdiction over a project that is before it based on a Commissioner's petition. If the Commission fails to meet this deadline, the development is deemed to be approved by the Commission, unless the period is extended by mutual agreement of the applicant and the Commission. [ECL 57-0123(2)(b).]

- - Processing of Marando Application

Pursuant to the petition mechanism, the Pine Barrens Commission asserted jurisdiction over the Marando nursery expansion and a related division of the expansion site. It did so by majority vote at its meeting of May 1, 1996. The Commission then reviewed the project against the standards and guidelines in Volume 1, Chapter 5, of the pine barrens plan. On August 26, 1996, the Commission approved the project, finding it in compliance with the relevant standards and guidelines, including those in 5.3.3.6 of the plan, which restrict vegetative clearing.

Department Staff contend that DEC has independent authority to evaluate the project's conformance with the pine barrens plan, despite the Commission's August 26, 1996, determination. Staff's position, which is supported by the Pine Barrens Society, is based on ECL 57-0123(3)(a). This section states that "Subsequent to the adoption of the land use plan, the provisions of any other law, ordinance, rule or regulation to the contrary notwithstanding, no application for development within the Central Pine Barrens area shall be approved by any municipality or county or agency thereof or the commission, and no state approval, certificate, license, consent, permit, or financial assistance for the construction of any structure or the disturbance of any land within such area shall be granted, unless such approval or grant conforms to the provisions of such land use plan" (Emphasis added).

On or about November 13, 1996, the Applicant applied for a DEC mining permit in furtherance of its proposed nursery expansion project. (See mining permit application, Exhibit No. 8). On May 13, 1997, DEC's Region 1 Staff issued a notice of permit denial (Exhibit No. 5) stating that, upon review of the application, Staff determined that the issuance of the proposed permit did not meet the standards concerning vegetative clearing limits in Plan 5.3.3.6.1 and Figure 5-1. By letter of June 10, 1997, the Applicant requested a hearing on the permit denial.

- - Jurisdictional Considerations

I agree with the Applicant that DEC has no authority to deny the mining permit on the basis of non-conformance with the land use plan's provisions. The authority to review the project against the plan's standards and guidelines belonged to the commission, which exercised its jurisdiction and approved the project.

According to ECL 57-0123(2)(a), "the commission shall have jurisdiction to review and approve . . proposed developments found by the commission after petition by a commissioner to have significant adverse impact on the land use plan." While the statute does not say such jurisdiction is exclusive to the Commission, that is certainly implied because the Commission's jurisdiction (or authority) would be lost if its determinations on plan conformance could be upset by another agency exercising the same power. And that it is clearly what happened here, since the Commission's determination that the project complies with the plan's standards for vegetative clearing has, in effect, been overruled by DEC Staff's contrary finding.

DEC Staff interprets ECL 57-0123(3)(a) as requiring it to independently evaluate the project's conformance to the standards and guidelines in Chapter 5 of the plan, regardless of the Commission's determination. As the Applicant argues, DEC has no authority in this regard, and Staff's action undermines the Commission's legitimate power as well as the very purpose and integrity of the Pine Barrens Act.

A review of the statute as a whole underscores the overall authority and expertise of the Commission with regard to development in the Central Pine Barrens area. As noted above, the Commission is charged to "plan, manage and oversee land use" within this area. The Commission develops and adopts the land use plan. The Commission ensures that localities conform their regulations to the plan; it approves those regulations and can withdraw its approval if the regulations are changed or administered inconsistently with the plan. [ECL 57-0123(1).] The Commission is authorized to waive strict compliance with all or part of the plan under certain specified circumstances. [ECL 57-0123(3)(a).] The Commission may set aside a determination of a governing body acting under Article 57 where a court has found that such determination is the equivalent of a taking without just compensation. [ECL 57-0135.]

Compared to the Commission, the state plays a minor role under ECL Article 57. State agencies having jurisdiction of land or water within the Central Pine Barrens area or of programs relating to the purposes and goals of Article 57 are obliged, to the fullest extent practicable, to cooperate and assist the Commission in carrying out the statute's provisions. The state has only one of five seats on the Commission, and DEC has no authority to review or reverse the Commission's determinations or the determinations of other governing bodies acting under Article 57.

No state permit for the disturbance of any land within the Central Pine Barrens shall be granted unless such grant conforms to the provisions of the land use plan. But this requirement, in ECL 57-0123(3)(a), does not confer jurisdiction; it merely underscores that, once the land use plan is adopted, the state must act consistent with the plan. This subsection places the same duty on the county, municipalities, and the Commission itself, except that the Commission is authorized to waive strict compliance with the plan in specified hardship situations.

Where, as here, the Commission has asserted jurisdiction, reviewed a project, and approved it as complying with relevant plan standards, DEC must act consistent with the Commission's determination. This does not preclude DEC from asserting its jurisdiction under the Mined Land Reclamation Law, since the Applicant is seeking a mining permit. But it does mean that DEC cannot assert, as a basis for permit denial, non-compliance with a standard in the land use plan which the Commission has already considered and determined would be met.

As the Applicant argues, the interpretation of ECL 57-0123(3)(a) advanced by DEC contravenes basic tenets of statutory construction which hold that all parts of a statute must be harmonized with each other, to the extent possible, and that each part is to be given effect. The effect of ECL 57-0123(2)(a), granting the Commission jurisdiction to review and approve development, would be defeated if such jurisdiction could be usurped by a state agency in one of its permitting proceedings. Also, the Commission's authority to waive strict compliance with the plan, or with any of its standards, would be undone if a state agency must deny a permit for failure to conform to the plan's provisions.

The legislation establishing the Commission was intended to "eliminate the delays and uncertainties" that previously "plagued" development in the Pine Barrens area, according to the Assembly's supporting memorandum, attached as Appendix "A" to the Applicant's initial brief. The statute itself reflects this intent by setting deadlines for Commission decisions on proposed developments. The land use plan confirms the intent of the Commission "to avoid duplicate review and reporting requirements and unnecessary delays." (Plan 4.2., p. 51.) Legislative intent as well as the plan itself would be frustrated if Staff's interpretation of ECL 57-0123(3)(a) were adopted, since it would revive the same problems - - delay and uncertainty - - the law was intended to correct.

- - DEC Staff Arguments

DEC Staff argues that ECL 57-0123(3)(a) establishes a system of "checks and balances" to protect against errors, presumably by the Commission, in the implementation of the land use plan. But as the Applicant points out, Staff has cited nothing in the statute or its legislative history to support this assertion. I also found nothing supportive in my own search of the legislative history. Therefore, Staff's assertion is dismissed.

In a similar vein, Staff argues that ECL 57-0123(3)(a) protects against the consequence of a project being deemed approved by the Commission simply because the Commission failed to meet its statutory deadline for a decision. Staff contends it would be "ridiculous" for DEC or another state agency to be bound by the Commission's default. However, this appears to be exactly what the law intends, in the interests of decision-making certainty and finality.

Finally, Staff argues that the project approved by the Commission differs from the one now before DEC, because the division of the expansion site was included in the project approved by the Commission. This contention arose for the first time during briefing, having not been raised at the issues conference. At any rate, as the Applicant argues, the fact that the entire project approved by the Commission included a land division that was inapplicable to the mining permit application does not alter the fact that the nursery expansion that is the subject of the mining permit application was specifically considered by the Commission with regard to all relevant standards, including those for vegetative clearing, and found to comply with them.

- - Pine Barrens Society Arguments

The Pine Barrens Society argues that ECL 57-0123(3)(a) was added to give DEC the requisite authority to plug loopholes through which an applicant might defeat the purpose and intent of the Pine Barrens Act. The Society says this is demonstrated by a review of the legislative history. However, nothing from this history is cited in its brief. For that reason, its contention is dismissed.

The Pine Barrens Society also argues that under ECL Article 3, DEC has the jurisdiction and mandatory obligation to insist on rigorous compliance with all environmental regulations and provisions. However, the section actually cited by the Society [3-0301(1)] obliges the Department only to carry out the state's environmental policy "in accordance with such existing provisions and limitations as may be elsewhere set forth in law." This provision does not expand DEC's responsibilities beyond what otherwise exist in Article 57.

To bolster its argument of DEC jurisdiction, the Society attempts to draw comparisons between Article 55, which protects sole source aquifers, and Article 57. However, as the Applicant points out, the Society's assertions that DEC has comparable authority under both articles are not borne out by the plain language of the statutes themselves.

Comparing the two statutes, DEC plays a major role in Article 55, but a minor role in Article 57. In Article 55, the DEC Commissioner reviews and approves petitions nominating special groundwater protection areas [ECL 55-0111(1)] and reviews and certifies the Comprehensive Management Plan [ECL 55-0117(3)]. In Article 57, the Pine Barrens Commission performs the comparable functions [ECL 57-0119, 57-0121, 57-0125], and there is no legal requirement that DEC be represented on the Commission.

As argued by the Applicant, the Pine Barrens Act balanced the Commission in favor of local government, since three of its five seats, a majority for most decisions, belong to affected towns. Governor Cuomo also emphasized the "local" nature of both the Commission and the land use decision-making process in his memorandum approving the Act. The memorandum, attached as Appendix "C" to the Applicant's initial brief, refers to the Commission as "a local government entity," and adds that after the Commission's adoption of a land use plan, "most land use planning decisions will be made by the towns and by Suffolk County in accordance with the plan; the Central Pine Barrens Joint Planning and Policy Commission will review those development proposals that could affect the region or certain critical resource areas or that a majority of the Commission otherwise determine should be reviewed by the Commission."

At the time the Commission made its determination on the Marando project, the Governor's appointee to the Commission was Ray Cowen, DEC's Region 1 director. Mr. Cowen voted against project approval, as did the county's representative, while the representatives of the three town supervisors voted for it.

DEC Staff's opposition to the project, on the basis of non-compliance with the pine barrens plan, is consistent with Mr. Cowen's vote as a Commission member. Mr. Cowen's stance is applauded by many, including the Society, who would like DEC to act as a check on the Commission's power. However, there is no apparent basis for this authority in the statute.

Apart from appearing in this DEC matter, the Society and certain of its members acting as individuals have challenged the Commission's determination in court. At the time of the issues conference, the challenge had not been decided on the merits, and the Commission's determination remained in place.

CONCLUSION

DEC has no authority or responsibility to deny approval of the mining permit application pursuant to ECL 57-0123(3)(a) on the ground that the project does not comply with some aspect of the pine barrens plan. Therefore, it is not necessary to reach the issue of whether the project actually complies with the plan's limits for vegetative clearing.

RECOMMENDATION

The draft mining permit prepared by DEC Staff (and appended to this report) should 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.

ADDENDUM

By a memorandum dated May 7, 1997, DEC Commissioner John P. Cahill recused himself from involvement in decision-making for this application, and designated David Sterman, who was then assistant commissioner of environmental quality and pollution prevention, to act in his stead. Because Mr. Sterman has left the Department, another substitute decision-maker must be designated.

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