A special meeting of the Town Board of the Town of Moreau was held on July 15, 2003 in the Town Office Building, 61 Hudson Street, South Glens Falls, New York.
Supervisor Gutheil called the meeting to order at 6:03 p.m.
The Town Clerk called the roll, which resulted in the following Town Board Members being present or absent:
Town Board Members Present:
Harry G. Gutheil, Jr. Supervisor
Bob Prendergast Councilman
Niki Baker Councilwoman
Todd Kusnierz Councilman
Town Board Members Absent:
Rich Hewlett Councilman
Also Present: Jeanne Fleury, Town Clerk; Joe Patricke, Building Inspector; Martin Auffredou, Attorney for the Town; Karla Buettner, Attorney with Bartlett, Pontiff, Stewart & Rhodes and Attorney Auffredou’s Assistant; Michael O’Connor, Attorney with Little & O’Connor and representing Pallette Stone; John Caffry, Attorney representing Jan Kropp, Scott Smith and Chuck Rowson; and guests.
Supervisor Gutheil stated the meeting was called for the express purpose of discussing the mining situation with the applicant, Pallette Stone Corp. Miscellaneous correspondence has been received from the attorneys until as recent as a few minutes ago. He asked that they try not to rehash all the information that we have had through a couple of prior sessions and try to narrow it down to facts.
Attorney Auffredou thanked the attorneys for their submittals and thought they were very well done on both sides and helpful in the process. It was appropriate, he thought, to allow the attorneys and others to present their views and summarize their positions set forth in their submittals.
Attorney O’Connor introduced himself and thanked the Board for an opportunity to present his arguments. He referred to his submittal of June 24th. He stated they weren’t talking about something new on this particular site. They were talking about mining a footprint that was approved by the Zoning Board of Appeals in 1998 after SEQR. They are talking about a Town Mining Permit, the same that was approved by this Board in November of 2000, by unanimous vote, with the exception of Mr. Bulman who was absent and Mr. Kusnierz who has taken his place on the Board. We are talking about a legal argument and not a factual argument as to what is the jurisdiction of the Town Board. He firmly believes the Town Board has a non-discretionary role to play when it comes to a mine that has been permitted by DEC and the Zoning Board of Appeals. The Board should verify that there is a valid Special Use Permit and valid DEC Permit and then act in accordance with law. He submitted a written reply to Attorney Caffry’s argument that he received yesterday. According to Attorney O’Connor, Attorney Caffry in his argument agrees with the premise of what we are talking about.
Supervisor Gutheil advised Attorney O’Connor that none of the people present have seen the documents he is referring to and thought it would be best if he gave some background on what the arguments are so they could follow it better.
Attorney O’Connor stated that Attorney Caffry provided an entire section (chapter) from the Treatise on Mining Permits. This was Exhibit A in Attorney O’Connor’s response. Attorney O’Connor referred to the part that addressed Post 1981, the Mine Reclamation Law, that allows municipalities to have certain jurisdiction to enact and enforce local laws and ordinance of general applicability, but they may not regulate mining and/or mining reclamation activities. This goes so far as mining noise. It does say the Board
can enact and enforce local zoning ordinances or laws that determine permissible uses in zoning districts. That is not an issue here. What we are talking about is not a zoning issue. The Town’s Zoning Law says mining is a permissible use, with a Special Permit, on the land in question. There is some confusion in the cases cited by Attorney Caffry where he relies upon those cases and says that Town Board’s can regulate mining. This is referring to cases that were determinative of zoning issues, not a local mining law issue. The case cited also stated that a municipality may enact or enforce local laws regulating mining or reclamation of mines not required to be permitted by the State. Attorney O’Connor stated this was for smaller mines and not what we are talking about here. It went on to say that if a locality designates mining as a permissible use by Special Use Permit, conditions may be placed, but that is done by the Zoning Board and not by the Town Board. In this instance, that has happened. This mine has some restrictions of hours of operations and directions how traffic will travel to and from the site. The second area where the Town Board can regulate mining is when an applicant applies to DEC, DEC must give written notice of the application and the Executive Officer of the Town can reply to areas of concerns the Town has. If the Town asks for special conditions then DEC can ask for justification of those special conditions. In this instance, when Valente applied, DEC did send the required notice to the Town and they have a receipt for the mailing. Supervisor Gutheil stated for the record, this is Exhibit C.
Attorney O’Connor stated that in the past the Town Board has treated the issuance of a Town Mining Permit as an administrative function. The Town collected from Valente $500.00 and treated it as a new application and it was approved with two others, Glens Falls Lehigh and Cranesville. Attorney O’Connor said he happened to be the attorney that presented the application for Glens Falls Lehigh. They did not get into SEQR on that one. They showed their State Facility Permit and Special Use Permit from the Zoning Board of Appeals and the Town Board issued the permit. He thought the reason SEQR was dispensed was because the Board recognized that the State Law superseded this Board’s jurisdiction and if this isn’t recognized then we have a legal problem not a factual problem. [amended 7/22/03 jf]
Attorney O’Connor stated that his response to Attorney Caffry’s submittal was drafted by his co-counsel, Tom Gleason, who stated that the cases cited by Attorney Caffry were done in a liberal manner and not applicable to the issues before the Town Board.
Attorney O’Connor went on to briefly comment on each case cited by Attorney Caffry.
Attorney O’Connor didn’t think it was the intent of the State Law to have a review level and then say to the Town if you don’t think we have done enough you are free to take another shot at the same subject. You are either pre-empted or you are not and it really is a legal issue.
Attorney Caffry introduced himself as the attorney representing Jan Kropp, Scott Smith and Chuck Rowson. He thanked the Board for allowing him to present their case. He stated that Attorney O’Connor took a lot of what he said out of context, misquoted it and twisted it around to make it sound like he said something he didn’t. He tried to correct some of this. They aren’t trying to say that the Town should regulate mining. There is a standard that exists for noise at the property boundary and that is not a regulation of how they mine. They are looking at the off-site impacts. The Seaboard vs. Town of Smithtown Case is fully supportive of their case. It was a tree removal ordinance applied to tree removal on any type of property. It wasn’t a zoning ordinance. This excavation ordinance that the Town of Moreau has applies to all types of excavation with a couple of specific exceptions. Attorney O’Connor also claimed that you couldn’t use another ordinance, other than the zoning ordinance, to prohibit a mine permit and this isn’t correct. There is also a case called "The Patterson Materials" where a mining company challenged a number of local ordinances and a court upheld them. One of them was an ordinance of excavation of steep slopes. DEC does not set noise level limits in the mine land reclamation law. When they do it comes out of SEQR. The preemption comes from mine land reclamation. So if something is directly governed by the mine land reclamation then the Town is going to be preempted. If the mine land reclamation law had a limit of 75 decibels at the property line, he might not be here tonight, but it doesn’t. DEC has purposely chosen not to pass noise levels limits and that is discussed in the other cases and when they do it comes out of SEQR. The Town is not preempted under SEQR. He didn’t see anything that showed DEC paid attention to the noise limits. The Town’s Sand, Gravel, Mining Law has what is called a "savings clause" in it, which means, that if part is preempted the rest is still upheld. The letter from Attorney O’Connor and his co-counsel says you can’t pick and choose which sections you like and which you don’t. That is the purpose of the savings clause. If part isn’t valid, the rest still is.
Attorney Caffrey stated that even if the end result tonight is that the Board finds out it can’t require or issue a permit, then the decibel limits stay on the books as a performance standard that is enforceable with or without a permit. He also stated that when they made a presentation the last time they were before the Board about the noise levels that their project would create, they received no response back from Pallette and he thought it was because they knew they wouldn’t be able to comply and that is why they were trying to get out of it.
Attorney Caffry also stated that for whatever reason, if the Board decides that it’s ordinance should not be applied to this project, there are other options:
Rezone the area to prevent expansion. Attorney O’Connor stated before that his client does not have any plans for expansion and it should be mined out in a year or so, however, nothing has been put in writing and nothing enforceable. If the stone company stands by it’s word then they should put it in writing.
The Town could apply its noise ordinance and use the 50-decibel standard from the excavation ordinance.
The noise ordinance could be amended and put the 50 decibel standard for excavations into the noise ordinance.
Attorney Caffry stated that the fact that the Town Board reviewed this particular project before doesn’t really matter. Assuming your local ordinance is valid, it is only a one-year permit, and in this case you were presented with new information, so you have every right to go back and revisit the issues.
Attorney O’Connor had hoped the manner they were proceeding in would avoid interpretation or arguing of legal principles, but he didn’t know if they could avoid it. He referred to the Patterson Case again. It had to do with four local laws:
Remove quarry and mining from list of permitted uses in a residential district. That law was upheld as being constitutional.
Imposed various regulations of harvesting of timber within a Town.
3. & 4. Restricted various construction-related activities from occurring on steep slopes, wetlands and other environmentally consistent areas within a Town.
Attorney O’Connor stated the Appellate Court decided that any determination that these
local laws as applied to a specific mining operation are preempted by a mine land
reclamation law may not be made within the context of the category judgment action.
It doesn’t say these laws are preempted, it says the manner in which they were
challenged didn’t bring them to the challenge. When you are talking about the matter
of mining you are preempted.
Attorney O’Connor quoted from a case law "Town of Ogden", which reads that the
legislature expressly reserved for DEC the authority to regulate the mining industry in
the manner in which mining is performed. Although a municipality may adopt a zoning
ordinance that prohibits mining within it’s zoning districts, it may not regulate the
process or method of mining. Thus we conclude that the provision of the zoning
ordinance which prohibits blasting within a district in which mining is a permitted use
and it restricts mining to excavation by mechanical means only is invalid. Attorney
O’Connor stated that if the Town’s Local Law said that excavation shall be by shovel and
not by mechanical means you are then regulating the manner of mining. Regulating the
level of noise that can be generated from that activity is prohibited. He submitted this
to the Town Board for review.
Attorney O’Connor stated this is not a general noise ordinance, the decibel business is in
the mining law. If he understands Attorney Caffry’s argument, he is saying to issue a
mining permit and if Pallette violates the noise portion then they are going to come
back.
Attorney O’Connor stated that all his client is asking for is a permit under the Town’s
mining law, partly out of politeness. He stated he wasn’t sure the Town could require
one, he argued it before. If it is non-discretional then the Town probably has the right
to charge something for their review.
Attorney Caffry stated that Attorney O’Connor is quoting things selectively and quoting
the parts that he wants you to review. His interpretation of the Patterson Case was that
these laws are not facilely invalid. He suggested the Town Board review the cases
themselves or have the Town’s attorney advise them on them.
Mr. Canavan recalled at the last meeting that a decision was made that they were going
to apply for a new permit and there was going to be a SEQR?
Supervisor Gutheil said correspondence since has indicated that they weren’t going to do
that.
Mr. Canavan asked if they have the right to make that decision? How did it change, you
voted on that right? The Board couldn’t recall, off hand, if it was voted on or not.
Attorney Auffredou stated that since the last time we met Attorney O’Connor asked for
another opportunity to meet with the Board and submit his position. Essentially what he
is saying tonight, the Town’s law (Sand, Gravel and Mining) is preempted by State mining
law and as a result the Town Board has very little, if any, discretion in these particular
matters. He is also saying that he is not going to submit to the SEQR process and he is
not going to submit to the permit process under the Sand, Gravel and Mining Law. That
is why there is no SEQR EAF and that is why we are here this evening so Attorney
O’Connor has the chance to present that position and Attorney Caffry and all of you,
who are concerned about the mining operation, have an opportunity to respond.
Mr. Canavan asked if it is the opinion of this Board that they should apply for a new
permit, because of the time involved between the overlaps and old permit running out?
Attorney Auffredou stated it was their position, but the question becomes as to whether
or not they have the authority to require any permit at all? If there is a permit, they said
it has to be a new permit, because the old one has expired. The question now before
the Town Board is whether or not they can require Pallette Mine to submit to an
application process at all? Attorney O’Connor is willing to agree as a courtesy to let the
Town Board find out if there is a valid DEC Permit and Special Use Permit from the
Zoning Board of Appeals and if there is assess a reasonable fee for review of the permit.
Mr. Canavan asked Attorney Auffredou if his position, the recommendation he gave the
Board at the last meeting was that they should be applying for a new permit?
Attorney Auffredou believed that was correct.
Mr. Canavan asked Attorney Auffredou if he still held that position and Attorney
Auffredou said he wasn’t sure.
Supervisor Gutheil stated for the record, that the June 24th letter from
counsel to the applicant stated that the "last resolution of the Town Board
requested that we file a long form environmental affidavit and must state
that we are unwilling to do so, because we would give up a significant portion
of the rights of this applicant and prejudice this applicant by leading the
Town Board and others involved in the process to believe the Town has a
right to discretionary review of this project".
The question was asked if the Zoning Board could review the Special Use Permit again?
Attorney Auffredou was of the opinion that this might be possible if there was a request for an expansion or changes in the operation that can be demonstrated that are beyond what has been permitted by DEC and the Zoning Board of Appeals. If it is operating in conformance with the DEC and Special Use Permit, it is his opinion that the Special Use Permit runs with the land.
A resident noted that the Zoning Law states that for a Special Use Permit there shall be no substantial changes in the character of the neighborhood or a detriment to the surrounding properties, which in this case she believed this was happening without us having any control because of the Special Use Permit. She thought this was why the Town Board said at the last meeting that they should look at the laws as they relate to the Special Use Permits and change them to allow the Special Use Permits to be reviewed again as changes happen with properties, such as this property, that went from a couple of towns hauling sand out to sand the roads to a 4.75 acre mine that was given a Special Use Permit and that is now 5.5 acres. Also, we know from Pallette that they want to expand. She also mentioned that when it went from 4.75 to 5.5 she wanted to know why they weren’t informed.
Supervisor Gutheil stated in regards to the question about an expansion, he said representations were made that the company had no intentions of expanding. He asked if the company was willing to put that in the deed restrictions?
Attorney O’Connor stated the permit they were requesting does not allow them to expand beyond the existing footprint on the DEC Application. He understood that the difference between the footprint that was on the DEC Permit and the Special Use Permit was that DEC included the haul road and it was not an expansion. The applicant has certain rights as a taxpayer. They know that if they did come in and ask for an expansion the Town’s Counsel would say that the Special Use Permit that runs with the land is no longer applicable. They know it would be an uphill battle and significantly difficult. Attorney O’Connor said whether or not ten years from now something changes that would make that then possible, he didn’t know. What they are asking for is this life of mine. Attorney Caffry almost went to the extent of saying that if that is what you are applying for and not looking for an expansion then it doesn’t create as much heartache. They understand that the permit they are seeking is for the existing life of mine footprint. If they attempt to go beyond that, they know they would have to start over. Attorney O’Connor said he had a problem with lifetime restrictions, because he doesn’t know what is going to happen then.
Councilman Kusnierz asked Attorney O’Connor if he knew what his client’s intentions were for the next five years.
Attorney O’Connor replied it was to finish up the footprint, reclaim it and sell it for residential lots.
A resident said it comes down to a trust factor. Pallette told the people in that area that they were going to expand. They were also mining without a Town permit at one time.
Councilman Prendergast asked Attorney Caffry if he agreed that a Special Use Permit runs with the land?
Attorney Caffry said as a general rule yes, they are usually issued for a project and don’t have a time limit on them, unless there is some error that would render it invalid.
Supervisor Gutheil thought the Board needed to take a look at the law on the books. One person that is issued a Special Use Permit could run a really nice operation and ten years from now a new person could come in and fall under the same permit and not run such a nice operation.
Attorney Auffredou suggested the Board look at the law, possibly revamp it and possibly eliminate it. The Zoning Board of Appeals is the Board that should be looking at these type operations and regulating them under the extent that they can. He thought the Board should look into rezoning these areas. He can’t imagine going through this with each and every mine, each and every year.
Supervisor Gutheil said there is no question that our people have to be protected and it is a question of whether or not DEC is going to give them the protection.
Attorney Auffredou stated that it seems we have close to a concession that our mining law is in substantial part preempted. He is not convinced that the noise level provision is a law of general applicability.
Supervisor Gutheil stated that they were touching on areas where the Town Board in a situation where it may end up in litigation with either party and legal advice of this nature should be in executive session, if we are going to discuss the strengths and weaknesses of our law.
Attorney Auffredou said that was fine.
Supervisor Gutheil said they would review the cases provided and put it on the agenda for the next meeting.
Attorney Auffredou recommended the Town Board take some time and look at the cases.
Councilman Prendergast asked if there was a definitive department or person the Board could go to, to get a final ruling on the case laws presented.
Attorney Auffredou stated that there might be under attorney-client privilege an avenue that he may recommend to the Board.
Supervisor Gutheil stated that based on that an executive session would be in order.
A motion was made by Councilwoman Baker and seconded by Councilman Kusnierz to adjourn to executive session at 7:08 p.m. to discuss potential litigation, attorney-client privileged matters regarding the Pallette Mine.
Roll call vote resulted as follows:
Councilman Hewlett Absent
Councilman Prendergast Aye
Councilwoman Baker Aye
Councilman Kusnierz Aye
Supervisor Gutheil Aye
The Town Clerk did not sit in on the executive session. Joe Patricke, Building Inspector/Code Enforcement Officer was invited into the executive session.
A motion was made by Councilman Kusnierz and seconded by Councilwoman Baker to adjourn the executive session at 7:45 p.m. and re-open the special meeting.
Roll call vote resulted as follows:
Councilman Hewlett Absent
Councilman Prendergast Aye
Councilwoman Baker Aye
Councilman Kusnierz Aye
Supervisor Gutheil Aye
Supervisor Gutheil advised that the Board had some discussions with counsel and shared ideas. What they are going to do is put this on the agenda for the July 22nd Town Board Meeting at which time Supervisor Gutheil will ask for a motion to adjourn to executive session. This will be done at the end of the meeting.
No action was taken as the result of the executive session.
A motion was made by Councilman Prendergast and seconded by Councilwoman Baker to adjourn the special meeting at 7:47 p.m.
Roll call vote resulted as follows:
Councilman Hewlett Absent
Councilman Prendergast Aye
Councilwoman Baker Aye
Councilman Kusnierz Aye
Supervisor Gutheil Aye
Meeting adjourned.
Respectfully submitted,
Jeanne Fleury
Town Clerk