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THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) MAY APPROVE MINING WHERE MINING IS OTHERWISE PROHIBITED IF THE MINING IS AN UNDISPUTED PRIOR NONCONFORMING USE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined the Department of Environment Conservation (DEC) can renew mining permits where mining is an undisputed prior nonconforming use. The “mining” at issue in this case is a sand and gravel mine on Long Island. Although mining was a permitted use when the mine opened, the area where the mine is located had been rezoned as a residential district where mining is prohibited:

The question raised on this appeal is whether Environmental Conservation Law 23-2703 (3) bars the Department of Environmental Conservation from processing all applications for permits to mine in covered counties, including applications for renewal and modification permits, when “local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” … . We hold that DEC may process renewal and modification applications when such applications seek to mine land that falls within the scope of an undisputed prior nonconforming use. The applications at issue implicate some prior nonconforming uses that are undisputed and others that are disputed but not yet resolved. Because prior nonconforming use was not taken into account by either DEC or the courts below, we modify and remit for further proceedings. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2023 NY Slip Op 00689, Second Dept 2-9-23

Practice Point: Where mining is currently prohibited by zoning, the DEC cam renew mining permits when the mining is an undisputed prior nonconforming use.

 

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