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After Big Victory, Who CARES?
Anti-mine group plans continued vigilance
By Molly Eagan Saugerties Times
Members of the Citizens Action for Residential Environments in Saugerties (CARES) gathered at the Frank D. Greco Senior Center last Friday evening to cautiously celebrate and discuss implications of the state Supreme Courtıs decision that will keep mining out of residential areas.
But CARES co-chair and attorney March Gallagher said the fight is not over yet. Gilbert Shott, who brought the lawsuit against the town after local council members voted to ban mining in residential areas, may still have some legal recourse, although the chances of him winning are slim, she said.
Shott bought more than 100 acres in Veteran and in 1998 applied to mine 45 of them. He then began trucking bluestone down a tiny, private road to the chagrin of his neighbors, who were under the impression he was going to build homes for his children and a lake for all of them to enjoy. In response to great citizen outrage, in October 2001, the town voted to ban mining in residential areas and Shott sued to overturn their decision. In a decision handed down November 6, state Supreme Court Justice Vincent Bradley ruled that Saugerties town officials had correctly followed the law while passing the zoning change. At the Friday, November 22 meeting, CARES members explained to about 30 people from a large political cross-section the possible arguments Shott and his lawyer could bring to their appeal.
The DEC mining regulation, on which Saugerties town law is based, states that "mining shall not include the excavation, removal and disposition of minerals from construction projects, exclusive of creation of water bodies, or excavations in aid of agricultural activities."
However, Gallagher said it is highly unlikely the DEC would go for this argument if Shott were to bring it on since he has already made his intentions clear. "He canıt now go back and claim heıs going to just build houses and continue to mine," she said. "The DEC now knows the full extent of his intentions. If he';s going to build, he'll have to move some stone and he will be allowed to do that, but I think he will have severe oversight from the DEC because they won't trust him now." Shott may also try to argue that he has a right to mine under pre-existing use common law, she said.
"One theory is that he's trying to build up a pre-existing use argument, but there needs to have been a continuing use [of the land for mining]. Last year, he kept trying to get stone out of there without a permit, but itıs been over a year now," she said. Before Shott bought the 45 acres in question, it had been vacant for many years, although it had been quarried in the early 1900s.
Shottıs lawyer, Kevin Bernstein, said he will appeal on behalf of Shott and that the DEC would continue the mining permit process. Gallagher said the DEC has been sued in the past for discontinuing permitting procedures despite town zoning law and is under legal burden to go forward. The DEC has twice returned Shottıs permit applications for being incomplete.
Gallagher said despite the possible loopholes, she feels confident the town will persevere. "The pre-existing use argument needs to be approved by the building inspector, and when he says no then Shott can appeal his decision to the zoning board of appeals, and when they say no he can bring file an Article 78 against them," Gallagher said. "The law isn't in his favor and the town isn't in his favor, and thatıs a long row to hoe."
"You've exhausted Shott and youıre planning to stay in business?" one man asked. "CARES will be there," Gallagher assured him. "CARES will be there," he said triumphantly. "That's all I wanted to hear."