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Sour Mountain Realty, Inc. - Commissioner Ruling, October 10, 1996

Commissioner Ruling, October 10, 1996



50 Wolf Road

Albany, New York 12233-1010

In the Matter

- of the -

Applications for permits to surface mine rock and related
activities pursuant to the Environmental Conservation Law (ECL)
Articles 3, 8, 15, 17, 19 23 & 70 in Fishkill, Dutchess County,


DEC Application No. 3-1330-47/6-0

October 10, 1996


By letter dated October 2, 1996, Scenic Hudson et al was granted leave to file an expedited appeal with respect to one of Administrative Law Judge Francis W. Serbent's September 16, 1996 Rulings. The leave to appeal was granted insofar as it relates to Scenic Hudson's motion for a protective order regarding documents on the potential sale of lands in the vicinity of the proposed project to the Office of Parks, Recreation and Historic Preservation ("OPRHP"). Now, upon review of the responses of the Applicant, Sour Mountain Realty, Inc. ("SMR") and Scenic Hudson, I am granting Scenic Hudson's motion for a protective order. Items "1." and "2." of SMR's Amended Demand for Discovery dated August 30, 1996 need not be disclosed.


Scenic Hudson, et al seeks the protective order from the following discovery demands by SMR:

  1. Any and all contract(s), including all attachments thereto, between the State of New York and/or any agency thereof (hereinafter "the State"), and Scenic Hudson, for the purchase by the State of any portion or all of Scenic Hudson's property within a ten mile radius of the property line of the project site, whether in final form or otherwise.
  2. All records relating in any manner to any proposed or potential acquisition(s) by the State of property within a ten mile radius of the property line of the project site, including property currently owned by Scenic Hudson, SMR, and/or any other entity.

SMR states that it seeks these records because Scenic Hudson has suggested that it intends to introduce evidence at the hearing that recreational public use of its lands adjacent to and in the vicinity of Sour Mountain's proposed quarry will continue and/or increase in the future, and that, therefore, any noise and visual impacts of the quarry on those lands may be expected to affect an increased number of persons. SMR contends that the demanded documents are needed to shed light on the potential for and degree of increased public use of the property, thereby affecting the evidence to be presented on visual impact and noise considerations at issue.

Scenic Hudson, on the other hand, asserts that release of the documents would adversely affect ongoing negotiations between it and OPRHP concerning sale of certain parcels or interests in parcels of Scenic HudsonActually of Scenic Hudson's affiliate, Scenic Hudson Land Trust. to OPRHP. Scenic Hudson also expresses concern that release of the documents in the context of this proceeding could impair its position in other litigation ongoing between Scenic Hudson and SMR and others.

On balance, I conclude that the demanded contracts, records, and documents relative to these potential land transactions are of minimal relevance to the question of the future intensity of potential public use of these lands. Intensity of potential future use is necessarily judgmental and somewhat speculative. The likelihood seems remote that any information provided by disclosure of the demanded documents would meaningfully develop the record on this point or would reduce the degree of uncertainty involved. On the other hand, release of the documents has the potential to have a chilling effect on ongoing negotiations concerning purchase of the lands. Therefore I conclude that the documents should not be disclosed and I am granting Scenic Hudson's motion for a protective order.

For the New York State Department
of Environmental Conservation

By: Michael D. Zagata, Commissioner

Albany, New York
October 10, 1996

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