Two lawsuits involving local sand mines, one in Noyac and one in East Hampton, are making their way through the state court system, with two recent rulings appearing to conflict with each other.
In a May 26 decision regarding Sand Highway, a mine on Middle Highway in East Hampton owned by Patrick Bistrian III, State Supreme Court Justice Andrew A. Crecca denied East Hampton Town's motion for a preliminary injunction that would have halted activity there. The town is fighting a permit awarded in 2020 by the State Department of Environmental Conservation allowing the mine to dig 110 feet below groundwater level and ultimately create a 6.05-acre artificial lake, with a nature preserve that could serve as a wildlife habitat, when the property is reclaimed in the future.
East Hampton has argued that the permit not only illegally expands a pre-existing, nonconforming use, but that the D.E.C. overstepped its reach in awarding such a permit where town zoning code should have been followed. Sand Highway, which has been in operation under various owners since the 1960s, argues that the permit is valid because the mine's 11.6-acre footprint is not being horizontally expanded.
In dismissing the town's claim, Justice Crecca ruled that "the increased vertical deepening of the mine within the existing mining area cannot be deemed a prohibited expansion or change to the pre-existing, nonconforming use."
One day after that decision came down, the Appellate Division of the State Supreme Court ruled in favor of a group of citizens and organizations that are suing a different mine, the Sand Land mine in Noyac, and the D.E.C. In that case, four out of five appellate judges found that "where it is unchallenged that the town's laws prohibit zoning, [the] D.E.C. cannot process the application, let alone issue the permit. . . . Therefore, the act of issuing the permits . . . was arbitrary and capricious."
The two rulings contradict each other, with Justice Crecca supporting the D.E.C.'s permit for Sand Highway and the Appellate Court rejecting the D.E.C.'s permit for Sand Land.
"They are in conflict," Assemblyman Fred W. Thiele Jr. said this week. "The appellate decision is a higher court. It's the controlling authority here. The East Hampton case is behind the Southampton case. I think the East Hampton case was wrongly decided. The appellate case was rightly decided. Ultimately, the appeals courts will work out those conflicts."
Sand Land sought to dig 40 feet deeper in the 31 acres that it was previously allowed to mine, and to process crushed concrete aggregate, crushed stone, and finished compost, which was not covered by a previous permit. The D.E.C. granted it permission in 2019, prompting the legal challenge from the mine's opponents.
After the appellate court annulled Sand Land's permit in May, however, mining activities continued, and Southampton Town issued a stop-work order. State records show Sand Land was most recently visited by the D.E.C. on June 11. Inspectors noted that they "did not observe any material being excavated during the inspection, nor was any processing equipment in operation while we were on site." No violations were documented.
D.E.C. inspectors visited Sand Highway on July 14, also finding no violations. In that case, it was observed that the "water table has yet to be intersected or excavated into and . . . the mine floor is still 5 feet above the water table in some parts of the mine floor and about 3 feet above in other locations."
Justice Crecca also dismissed some components of East Hampton Town's case, saying that the statute of limitations had expired in its claim that there were violations of the State Environmental Quality Review Act.
John Henry, the attorney representing the town in the Sand Highway case, could not be reached for comment this week, nor could Bond, Schoeneck, & King, the Syracuse-based law firm representing the mine.
In Sand Land's case, a new suit has been brought by four limited liability corporations owned by residents who own property near the mine. Claudia Braymer, an attorney who represents Southampton Town, the Noyac Civic Council, Group for the East End, and Citizens Campaign for the Environment, has filed a motion for her clients to intervene in the new suit on the side of the citizens.
"We could have filed our own lawsuit, but we figured it would be more efficient to the court . . . if we joined the existing citizen suit," she said, noting that her motion is still in the "wait-and-see" stage.
The D.E.C. is also named in the new complaint, filed by Bridgehampton Road Races L.L.C., 101Co L.L.C., 102Co NY L.L.C., and BRRRubin L.L.C.
Ms. Braymer noted that State Attorney General Letitia James is now involved in the Sand Land case on the side of the D.E.C. "They are still asserting on behalf of D.E.C. that no enforcement is needed against the mining company, which is very discouraging," she said.
Brian Matthews, the attorney representing Sand Land, did not respond to requests for comment this week. In a July 21 email to The Star, the D.E.C. said it "will continue our aggressive oversight and monitoring of both facilities to ensure the ongoing protection of water quality and the environment."
