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A DEEPER HOLE
NEW SAUGERTIES TIMES, November 15, 2001 (p8)
Town, DEC and applicant involved
in complicated dispute over Veteran mine lead agency status
Shott Mine Inc.'s application to create a bluestone mine on a ridge north of the hamlet of Veteran moved into the epic stage last week with a debate over lead-agency status of the project. The assignment of responsibility for environmental review of the project is being discussed by the Department of Environmental Conservation in Albany. Meanwhile, the town Zoning Board of Appeals (ZBA) has shot down the claims of a citizen opposition group about how the case was presented to the planning board, but supported it in its criticism of how the board chairman handled it.
Lead-agency status in the mining application review was initially claimed by the DEC last July. Irregularities in how planning board chairman William Creen dispensed with the town's interest in being the lead agency led town supervisor Greg Helsmoortel to ask DEC to reopen the case and consider giving the town responsibility for being the lead agency. The DEC's division of environmental permits in Albany is sorting through the arguments in anticipation of making a final decision.
The case took on an arcane twist when the town board last month enacted an amendment to the zoning law that made it illegal for quarries or mines to be sited in residential zones in the town. The Shott Mine site is a 45-acre parcel in the middle of an R-2 district. In arguing for lead-agency status, Helsmoortel said the change in law meant that the planning board no longer had jurisdiction, since special-use permits for quarries were now limited to certain commercial zones only. The body that could authorize a change in the zoning law to allow mining in a residential zone was the town board.
Kevin Bernstein, an attorney for Shott Mine Inc., countered that the planners were the only involved agency besides the DEC. Bernstein said Gilbert Shott, the mining principal, had no intention of applying for a rezoning of the Veteran property under the new law. He urged DEC to continue as lead agency.
DEC's regional office in New Paltz, which had begun processing the Shott Mine Inc. application, contended that it should remain lead agency. DEC routinely assumes lead-agency status in the environmental review of mining applications because mining operations have regional implications, not just local ones. Helsmoortel countered that Saugerties indeed had issues and could conduct a regional review using appropriate professional help, including that of DEC Region 3 in New Paltz.
The ZBA issues were raised by CARES, the citizen group formed to fight the Shott Mine application, after Shott and his team of lawyers and geologists appeared before the planning board at Creen's invitation. CARES chairman Pat Fitzsimmons took issue with town building inspector Paul Andreassen sending Shott Rock Inc.'s application for a special-use permit to the planning board. He claimed a 'presubmission conference should have been held first. ZBA chairman Joseph Roberti Sr. said Andreassen acted reasonably even though the planning review, including consideration of a site plan, remained incomplete.
The ZBA strongly supported a second CARES inquiry. Attorney March Gallagher had said that the planning board chairman acted improperly in notifying DEC last July that the town did not wish to be lead agency in the environmental review. No vote was taken by the full planning board. The ZBA ruled that the decision on lead agency was "an official action" that required an official vote.
Bernstein alluded to the planning board's action in his defense of the state retaining lead-agency status. DEC regional staff provided details on their solicitation of input from the town planners since June 4.
Bernstein said the company considered the recent zoning amendment illegal. If it wishes to overturn the zoning-law amendment, Shott Mine Inc. has a four-month statute of limitations period in which to file an Article 78 proceeding in state court. Even if the law is not overturned, Bernstein suggested that the company may proceed anyway if DEC grants the mining permit. He said "historical and recent (prior to Shott's ownership) use of the site as a quarry and source of aggregate" may make it unnecessary to apply for an amendment to the zoning law even if it is considered legal.
In that case, the mine might be grandfathered in as a pre-existing use. Michael Moriello, a previous Shott Mine attorney, had also alluded to prior uses in documents filed with the building inspector, but neither provided details of information on what that use might have been. William Parr, a nearby Veteran sand operation owner, had taken stone from the land in the 1990s, but not under permit