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Top Stories Mining company suffers legal setbacks
By Jesse J. Smith , Freeman staff 2/18/04

SAUGERTIES - Efforts to restart mining operations in a residential neighborhood suffered a double blow in recent weeks, with state and federal court rulings against mine owner Gilbert Schott and his company, Schott Rock Inc.

U.S Northern District Court Judge Lawrence E. Kahn, in a Feb. 11 decision, granted the town's motion to dismiss most of a lawsuit filed by the mining company last summer. Schott sued after the town issued stop work orders and a criminal appearance ticket to stop the removal of bluestone stored on pallets on the property off Morse Road.

Khan dismissed claims that the town's action violated Schott's Fifth Amendment by taking away the property's value as a mining site without providing just compensation and depriving Schott of due process. The judge also ruled that the mine owner could not sue the town for punitive damages.

However, Khan let stand the claim that the town issued the stop work order and ticket in retaliation for Schott's legal actions against the town, in violation of his First Amendment rights. Khan's decision allows the First Amendment claim to proceed to trial, but he did not rule on its merits.

"If you look at it, there is definitely a pattern of activity by the town against Mr. Schott," said attorney Kathleen M. Bennett of the Bond Schoeneck law firm of Albany, which represents Schott. Bennett said lawyers "will be looking at the motivations behind the Town Board's actions" in the upcoming discovery phase of the federal case.

The other ruling against Schott Rock, on Feb. 5, granted a change of venue motion by the town to move the company's challenge of a Saugerties Zoning Board of Appeals decision to state Supreme Court in Ulster County. In December, the zoning board ruled that the mining operation could not be grandfathered as a pre-existing nonconforming land use under the town's 1989 zoning law.

Despite the fact that the mine is in Ulster County, Schott Rock filed the suit in Greene County under a section of state Civil Practice Law that allows a case to be filed in any county in the same judicial district as the property in question. Ulster and Greene counties are both in the state's Third Judicial District.

Discussing the case with Greene County Supreme Court Justice Leslie E. Stein, Schott Rock attorney Kevin M. Bernstein argued that the case would get a fairer hearing in Greene than in Ulster County, where Justice Vincent Bradley had ruled against the company in previous cases concerning the town's effort to shut down the mine.

"To be honest, I think we can get a fair shake here," said Bernstein. "And, based on Judge Bradley's familiarity with us, maybe he's fed up with us. I don't think we would be able to get a fair shake there."

"They were judge-shopping, they were forum-shopping, and that's not appropriate," said March Gallagher, who heads Citizen Action for Residential Environments in Saugerties (CARES), a grass roots group opposed to the mine. "'We don't like the way (Bradley) ruled in the past' is not a legitimate argument."

Bennett said that, despite the latest rulings, both court actions would continue as planned.

©Daily Freeman 2004

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