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Palumbo Block Company, Inc. - Interim Decision, June 4, 2001

Interim Decision, June 4, 2001

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

In the Matter

- of -

Application of PALUMBO BLOCK COMPANY

for a Mined Land Reclamation Permit for a proposed Mine in the Town of Ancram,
pursuant to Article 23, Title 27 of the Environmental Conservation Law

DEC Application No. 4-1020-00035/00001

INTERIM DECISION

June 4, 2001

Interim Decision

Introduction and Background

This interim decision addresses the appeals filed pursuant to 6 NYCRR 624.8(d)(2) from the February 9, 2001 ruling on issues and party status (the "Ruling") by Administrative Law Judge ("ALJ") Susan DuBois. Appeals were filed by the Palumbo Block Company (the "Applicant"). A response to the Applicant's appeal was filed by the Town of Ancram and the Taconic Valley Preservation Alliance (the "Intervenors"). Department Staff did not file an appeal or a response.

The Applicant proposes to mine approximately two million cubic yards of sand and gravel from 73 acres in seven phases over twenty years. The mine is located in the Town of Ancram, Columbia County, on the east side of Route 22 approximately one mile north of White House Road.

The ALJ found the following issues should be adjudicated: 1) the Applicant's record of compliance, 2) erosion control and drainage, 3) freshwater wetlands impacts, 4) visual impacts, 5) noise, 6) impacts on the character of the community, and 7) deficiencies in the maps submitted as part of the mining permit application. Issues determined not to be adjudicated include impacts on groundwater, spill prevention, air and dust impacts, and traffic.

Issue on Appeal

The Applicant objects to the inclusion of impacts to "community character" in the hearing. The Intervenors support the inclusion of "community character" impacts as part of the adjudicatory hearing.

Standards for Adjudication

An issue is adjudicable if "it is raised by a potential party and is both substantive and significant." 6 NYCRR 624.4 (c)(iii). An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. 6 NYCRR 624.4 (c)(2). An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. 6 NYCRR 624.4(c)(3).

In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR 624.4(c)(4).

Discussion

In this proceeding, the ALJ held that the impacts on the "existing character of the community" will be an issue for adjudication." Ruling at 22. In her findings, the ALJ noted that the Intervenors' reasons for alleging such impacts "relate largely to the issues of noise and visual impacts, and to the importance of tourism, recreational and agricultural activities in the economy and social fabric of the area surrounding the proposed mine." Ruling at 21. The ALJ then concluded that in view of the visual and noise impact issues, and the Town's development plan emphasizing open and rural character goals, that the potential impacts of the project on character of the community be adjudicated. Ruling at 22.

The Applicant asserts that the proposed issue of "community character" is neither substantive nor significant because the ALJ has already determined that community character will be taken into account within the context of potential visual impacts, potential noise impacts, and mitigation of those potential impacts. See Appeal at 2. Both potential visual and noise impact issues were not appealed and are thus joined for adjudication. According to the Applicant, the issue of community character should not be separately addressed.

I find that parsing out community character by addressing only potential visual and noise impacts unduly excludes a thorough review of the proposed mine impacts on the community setting. Intervenors propose to call local officials and others as witnesses regarding community character. Ruling at 22; Intervenors' Reply at 10. In addition, the Town's development plan contains information to help properly evaluate "community character." See generally Intervenors' Reply at 12-14. Such adopted local plans can serve as "evidence of a community's desires for the area and should be consulted when evaluating the issue of community character as impacted by a project." Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995; Matter of American Marine Rail, ALJ Ruling, August 25, 2000 (adopted local plans should be afforded deference in assessing impacts of a project).

Moreover, the term "environment" is broadly defined under SEQRA. Matter of Chinese Staff and Workers Association v. City of New York, 68 N.Y.2d 359 (1986); Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400 (1986); ECL § 8-0105(6); 6 NYCRR 617.2(l). Indeed, the term "environment" expressly includes "existing community or neighborhood character" (see ECL § 8-0105[6]; 6 NYCRR 617.2[l]; see also ECL § 8-0101 [purpose of SEQRA includes enhancing "human and community resources"]) and New York courts recognize that the concept maintains its own meaning and identity in terms of environmental review. Impacts to community character can include neighborhood gentrification (Matter of Chinese Staff, supra, at 367), a proposed development that would quadruple a town's present population (Matter of Tuxedo Conservation and Taxpayers Assoc. v. Town Bd. of Tuxedo, 69 A.D.2d 320 [2d Dept. 1979]), traffic and parking problems for a neighborhood arising from a proposed sports stadium (Matter of H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222 [4th Dept. 1979]), and lower property values and less future commercial development emanating from a proposed transfer station (Matter of Meschi v. New York State Dep't of Environmental Conservation, 114 Misc. 2d 877 [Sup. Ct., Albany Co. 1982]).

At times, the issue of community character may intertwine and overlap with issues such as noise, aesthetics, traffic and cultural resources, and a commissioner's final determination may "necessarily involve a judgment that integrates all of the relevant facts with respect to all of those issues." See Matter of Whibco Inc., Interim Decision of the Commissioner, June 15, 1998; see also Matter of Lane Construction Company, Decision of the Commissioner, June 26, 1998 at 3 & 4 (impacts of proposed rock quarry on the historical and scenic character of the community included visual, noise and other associated impacts on the local community); Matter of William E. Dailey, Inc., supra at 9 ("[m]atters of noise, blasting, and water resources, which can be considered as part of the character of the community" may be addressed as separate issues). Accordingly, the issue of "community character" cannot necessarily be viewed in isolation and may include a myriad of diverse components.

Conclusion

For the foregoing reasons, the ALJ's ruling to include community character as an adjudicable issue is affirmed in all respects.

_____________/s/_____________
Erin M. Crotty, Commissioner

Dated: Albany, New York
June 4, 2001

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