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Deep Lake at Mine Is a Lot to Ponder

Thu, 06/01/2023 - 10:24

Promise of a future ‘nature preserve’ rings hollow for town officials

A view of the Sand Highway mine from a nearby property.
Mary Waserstein

Sand Highway L.L.C., a 14.49-acre sand and gravel mine on Middle Highway in East Hampton, is challenging a 2022 determination by the town’s principal building inspector that its mining activities have surpassed what the town allows. The matter was in front of the town’s zoning board of appeals on May 16. There is a lot of history.

In April 2017, Patrick Bistrian III purchased the mine. The first mining permit was given to David L. Talmage in 1984, but town documents say the land has been mined since the 1960s.

The parcel is in a residential zone, but because mining began on the site before East Hampton passed updated zoning laws in 1984, the mining use is considered pre-existing, nonconforming, which means it is allowed there if it doesn’t increase in intensity.

A year after Mr. Bistrian purchased the mine, he applied to the New York State Department of Environmental Conservation to deepen the mine to 110 feet. The D.E.C. regulates mining activity in the state. The prior permit, renewed over the years since the 1980s, allowed for the owners to excavate only 20 feet. Mining to 110 feet would pierce the water table, and Mr. Bistrian suggested a six-acre “lake” as remediation.

In the summer of 2019, the D.E.C. — contending that the creation of the 110-foot-deep pit would have no serious environmental impact — issued what is called a negative declaration for the project, meaning no further environmental review would be required. Residents, the town, and environmental advocacy groups strongly disagreed, but despite forceful opposition during a public comment period in the fall of 2019, by March 2020, the D.E.C. had given Sand Highway its new permit.

Months after, the town sued in Suffolk County Supreme Court. In its petition, it challenged the state permit and sought “an injunction to prevent Sand Highway from expanding its mining operations.” Just shy of a year later, the Supreme Court partially dismissed the town’s claims, and it appeared that Sand Highway had prevailed.

However, the next day, a different New York State court ruled against the D.E.C. in a similar case involving the expansion of a sand mine in Noyac. East Hampton Town seized on the opportunity, using the ruling as a springboard to launch a new petition in September 2021, and in October it won a temporary restraining order prohibiting Sand Highway from expanding the mine.

According to John Jilnicki, a town attorney, the Southampton case stipulated that before the D.E.C. could issue a mining permit, it must first ensure that the use is permissible under local zoning. If the town Z.B.A. says it is not, the D.E.C. must defer.

In an April 2022 affadavit to the State Supreme Court, Ann Glennon, the principal building inspector at the time, wrote that, “After this case was commenced, Sand Highway took the position in this litigation, for the first time, that its proposed reclamation of the site would change the nonconforming mining use of the property to a conforming use by creating a ‘nature preserve or sanctuary,’ including certain ‘wildlife habitat,’ which it claims is a permitted use in the A3 Residential zone where the property is located. Notably, Sand Highway’s application materials to N.Y.S.D.E.C. did not mention the term ‘nature preserve or sanctuary’ a single time.”

Simultaneous to the ongoing Supreme Court lawsuit, also in April 2022, Ms. Glennon made her determination. In short it said that even if Sand Highway won the Supreme Court case, its plan for remediation not only failed to conform to town code, but would require a natural resources special permit from the Z.B.A.

And that’s why, Roy Dalene, the chairman of zoning board, was trying to wrap his head around the situation at the May 16 meeting.

“The lake is created by the depth of excavation into groundwater?” he asked Ms. Glennon.

“Yes,” she said.

“I have the original D.E.C. approval that allowed mining to go on there,” said Ms. Glennon, “It was very restrictive. Somehow they got an approval for a more extensive use over there, which is what we were saying: They were doing more than the pre-existing use allowed,” she told the board.

Mr. Dalene asked if the modified permit from 2020 allowed Sand Highway to go deeper.

“Yes, it allowed them to extend it,” said Ms. Glennon. “When the new owners bought it, the deeper it went.” Neighbors complained to the town and the Suffolk County Water Authority, worried the intrusion into groundwater, a short distance from their wells, could impact water quality.

Neither Mr. Bistrian nor his lawyers showed up for the meeting. instead, they submitted a 241-page document to argue their points.

One of those points was made by P.W. Grosser, an engineer hired by Sand Highway, regarding the groundwater concerns. They hadn’t seen evidence that mining operations on Long Island “below the water table have led to a degradation of groundwater.” Further, they argued that an enhanced water quality monitoring regime would make the water even safer to drink than if houses, with their unregulated septic systems, were built on the land.

Brian Frank, the chief environmental analyst for the town, advised the Z.B.A. at the meeting and said, “It’s a very clear reading of the code that the creation of a lake that intersects the groundwater table requires a natural resources special permit.”

Meanwhile, in a technical analysis memorandum, he argued that Sand Highway’s attempt to create the so-called lake and designate the property a nature preserve “is flawed and concerning on many levels. This designation is exclusively limited to town-owned properties.” Further, he said, “The habitat and aquatic resource value of a 110-foot-deep artificial lake has not been identified by the applicant or the D.E.C.”

“The sandy soils associated with the subject and neighboring properties provide essential protection to East Hampton’s sole-source aquifer. The permanent removal of this large volume of material would provide a direct conduit for pollutants to enter the aquifer,” Mr. Frank wrote.

A D.E.C. spokesperson was confident that any pollutants would be caught. “D.E.C. subjects all permits to a rigorous review to ensure the protection of public health and the environment. Sand Highway’s permit requires that groundwater be sampled for laboratory analysis and the results submitted to D.E.C. twice per year. Should the mining intersect the groundwater table, the testing frequency increases to four times per year.”

It refused to comment further due to the pending litigation.

Mary Waserstein is a direct neighbor of the mine and opposes the proposal. “He cleared 12 acres in two days,” she said of Mr. Bistrian. “These were incredibly mature trees. We used to have tons of box turtles here. It was very sweet. Some people may accuse me of NIMBYism. I knew when I bought the property it was next to a sand mine. This isn’t about that. This impacts any person who gets town water in East Hampton,” she said.

The Z.B.A. has 62 days from the May 16 meeting to rule on that matter.

 

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