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Shott The state Department of Environmental Conservation general counsel last week overruled a regional DEC definition of mining that had prohibited a mining operation in a residential West Saugerties neighborhood. On April 18, the DEC deputy commissioner and general counsel James H. Ferreira ruled in favor of Shott Rock, Inc.'s 2002 petition for a Declaratory Ruling on the definition of mining. Landowner Gilbert Shott's attorney, Kevin Bernstein, had requested a ruling that "under the Mined Land Reclamation Law (MLRL), an MLR permit from the DEC is not required for the removal of pallets and stockpiles of bluestone since the removal of the bluestone will not involve extraction of minerals from the ground." Despite the DEC's Mining Reclamation Law (see sidebar), which mine opponents say includes the removal of materials in its definition of mining, explained Bernstein, "the determination of the general counsel of whether removal of materials from that site constitutes mining supersedes anything to the contrary from Region Three." Added Bernstein: "We're still in the process of evaluating what it means for us and what our next steps will be." The land in question, north of Route 212, just behind the Veteran Pork Store and up a hill from residents on Morse Road, is stunning. If you can look out over the squares of bluestone chunks wrapped up in rusted wire and the piles of bulldozed rubble, it's easy to envision landscaped rocks and fields of flowers to which families could hike and picnic on weekends. But the solid, cool blue rocks stacked on their pallets may also stir up fantasies of luxurious bluestone floors and countertops. Landowner Gilbert Shott may see dollar signs because a yard-and-a-third-square-foot palette of this bluestone will retail for about $200 each, or wholesale for about $75 to $125 each. The landowner alone generally receives ten percent - or about $20 a pallet. In a 2001 mining permit application to the DEC, Shott said he planned to blast and excavate 100,000 tons of the stone. You do the math. But he altered his plans later that year after the town changed its zoning law to prohibit mining in residential areas, and said he planned to simply excavate material left over from previous mining operations. That did not sit well with his neighbors, who formed Citizens Action for Residential Environments in Saugerties (CARES) in 2000 when Shott made his plans clear, and who were behind the zoning law reform. Shott bought the land - close to 100 acres in three parcels - in the mid-1990s. The mine is located on a 25.5-acre parcel, which Shott bulldozed much of, according to CARES attorney March Gallagher. After filing his first mining application in 2000, Shott then began collecting and carting out the loose stone. His neighbors on Morse Road complained when large trucks began rumbling past their homes and up a 20-foot-wide dirt road along their front yards that led to the mining area. After the zoning law was changed, town building inspector Paul Andreassen issued a stop work order and told Shott he would need to apply for a special use permit. Shott did, telling the town board at a public hearing that he planned to blast and excavate 100,000 tons of bluestone over a period of 28 years. In November 2002, after Shott appealed, state Supreme Court justice Vincent Bradley upheld the Saugerties town decision to ban mining in residential areas. The following month, the DEC informed Shott that his designed project did not meet wetland permit standards and that the department would oppose the permit application. In February 2003, the DEC determined that significant environmental impacts might result from the development of the proposed project. This meant that Shott would have to go through a state environmental review due to potential blasting and impacts on the surrounding water, environment and traffic. Bernstein also recently sought determination from Andreassen that any further mining constitutes a non-conforming use (since mining operations went on there prior to the zoning change) and does not require a permit. Andreassen denied the request. March Gallagher said the decision can be appealed in an Article 78, which would make the state Supreme Court consider the Declaratory Ruling an "Abuse of Discretion," "which is when they rewrite the statute," Gallagher explained. "The legislature spoke and said mining is the removal of stone, and the state DEC is rewriting the statute and saying it's not mining. The courts give a lot of deference to agencies when they are interpreting their own statutes; however this is going beyond that. That's my opinion. I get the feeling they're laughing at Saugerties. What's to stop any other person from palletizing their stone? Plenty of people have big slag piles of bluestone in their backyards. What's to stop them palletizing and carting it out of there?" Gallagher said she expects Bernstein will appeal Andreassen's decision not to issue a non-conforming use permit to the town Zoning Board of Appeals. State DEC spokesman Michael Fraser explained the general counsel's surprise decision thusly: "A member of the regional staff communicated an opinion regarding activities at the site. The landowner (Shott) had requested a legal proceeding and the department took a comprehensive look at the entire scope of the proposed activity. And after a thorough review of the facts and law involved and after consulting with regional personnel, the department issued its final declaratory ruling." Fraser said the agency has no statistics on how often the general counsel makes a ruling that contradicts a regional office decision. Shott still has a pending mining permit request at the DEC.
THE DEFINITION OF 'MINING' UNDER NEW YORK STATE MINED LAND RECLAMATION LAW: "Mining" means the extraction of overburden and minerals from the earth; the preparation and processing of minerals, including any activities or processes or parts thereof for the extraction or removal of minerals from their original location and the preparation, washing, cleaning, crushing, stockpiling or other processing of minerals at the mine location so as to make them suitable for commercial, industrial, or construction use; exclusive of manufacturing processes, at the mine location; the removal of such materials through sale or exchange, or for commercial, industrial or municipal use; and the disposition of overburden, tailings and waste at the mine location. "Mining" shall not include the excavation, removal and disposition of minerals from construction projects, exclusive of the creation of water bodies, or excavations in aid of agricultural activities. |