Closing another door on continued sand mining in Noyac, the state DEC’s chief administrative law judge last week rejected Sand Land’s motion to reargue its long pending application to expand its mining operations on its 50-acre site off Middle Line Highway and Millstone Road. Filed in 2014, the application was initially rejected by the DEC in 2015 and has been on appeal ever since.
Owner John Tintle can further appeal the ruling either by asking the New York State DEC commissioner to overrule the judge or he can apply to the Southampton Town Board of Zoning Appeals for permission to expand a pre-existing, non-conforming use, according to Assemblyman Fred T. Thiele Jr., a critic of the mining operation,
Mr. Tintle on Monday declined to comment except to argue that his certificate of occupancy identifies the mine as a 50-acre facility.
The current mine covers 31.5 acres to a depth of 160 feet above sea level, 60 feet below grade. In his application, Mr. Tintle sought to dig 40 feet deeper and expand the mined area by 4.9 acres.
“It’s another victory for residents of the community,” commented Mr. Thiele, who has been a strong advocate for those seeking to close the Sand Land mine in Noyac as a pollution threat, as has County Legislator Bridget Fleming and Town Supervisor Jay Schneiderman.
In a report issued last summer, the Suffolk County Department of Health Services found groundwater pollution under the mining site including high levels of iron and manganese.
In a separate proceeding, Sand Land has asked for a hearing to challenge the DEC’s September, 2018, decision not to renew the operation’s current permit. The DEC notified Mr. Tintle then that it intended to “modify” the permit to allow only a reclamation of the site.
Mr. Thiele said this week that a date for the requested hearing had yet to be set.
In operation since the 1960s, before zoning banned mining in the Town of Southampton, Sand Land lies in what is now a five-acre residential zone. It obtained a certificate of occupancy for the mine in 2010 from the town building inspector for a pre-existing sand mine and for the storage and processing of trees, brush, stumps and leaves into mulch or topsoil. The building inspector declined to include in the CO a construction debris storage and processing operation on the site as a legal use.
Neighbors challenged the building inspector’s finding that the vegetative storage and processing operation was a legal pre-existing use. They won a split decision from the town Board of Zoning Appeals in 2012, which found the processing aspect of the vegetative waste operation a new use not allowed by zoning. That ruling was eventually upheld in 2016 on appeal to the State Supreme Court’s Appellate Division.
Sand Lane has since ended both the construction debris and vegetative waste operations at the mine.
In the newest ruling against Sand Land, handed down on December 10 by Chief Administrative Law Judge James T. McClymonds of the DEC’s Office of Hearings and Mediation Services in Albany, the judge wrote “the applicant contends settled law gives it an unfettered right to expand its pre-existing, non-conforming mining use to the lateral boundaries of its 50-acre premises and, presumably, to unlimited depths with those 50 acres …”
The applicant “misapprehends controlling law,” he wrote, which he asserted “does not provide the landowner the unfettered right to mine to the boundaries of the parcel without regard to local zoning.” He cited a state Court of Appeals ruling which found the town could “adopt measures reasonably regulating” non-conforming mining operations “and may even eliminate this non-conforming use provided that termination is accomplished in a reasonable fashion.”
It was the judge’s second decision on Sand Land’s appeal. In January, he suspended the hearing on the case to give the Town of Southampton time to say whether or not local law allowed for the expansion of the Sand Land mine.
In July, Supervisor Schneiderman wrote the DEC a letter in which he said that sand mining was not allowed under the town’s zoning code. The letter prompted Sand Land to file suit against the town and Mr. Schneiderman in State Supreme Court.
When the DEC declined to renew the current mining permit in September, Mr. Thiele called it “the beginning of the end” for Sand Land. “If history is any guide, we can anticipate more administrative proceedings, as well as litigation from the polluter,” Mr. Thiele said. “Further, we must make it clear to the DEC that simple reclamation of the land is not enough. We must be assured that our drinking water is also remediated. The decision is a victory for the environment and public health. Today, all levels of government have come to the same conclusion. No more permits. It must be shut down.”