What Can a Municipality Do to Regulate Mining?

David R. Everett
Whiteman Osterman & Hanna, LLP

September/October 2002

1. Mined Land Reclamation Law (ECL Article 23, Title 27)

MLRL supercedes and preempts local regulation of mining operations and conveys the regulatory authority primarily to DEC. DEC regulates mining through a permit process contained in 6 NYCRR Part 420.

Under MLRL, local governments regulate mining in 3 ways:

(1) Traditional zoning powers;

(2) Generally applicable local laws that only incidentally affect mining;

(3) Participate in DEC permitting process

2. Traditional Zoning Powers To Regulate Mining:

The MLRL does not prevent a local government from enacting or enforcing local zoning laws which determine permissible uses in zoning districts. MLRL § 23-2703(2)(a).

1 Banning Mining: The courts have allowed local governments to completely ban mining.

Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987) (the high court upheld a local government’s authority to establish a zoning district where mining was explicitly not a permitted use. The court stated that a zoning law is not a mining regulation, but a land use control, which only incidentally affects mining. It was not the type of regulation that the State Legislature envisioned as being prohibited by the MLRL).

Voorheesville Sand & Stone Company v. Town of New Scotland, 136 A.D.2d 849 (3d Dept. 1988) (the Town amended its zoning law to prohibit mining after a mining company had received a DEC mining permit. The court upheld the amendment citing the town’s right to ban mining as a land use).

Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668 (1996) (upheld the right of a municipality to completely ban zoning as a land use within a town).

2 Designating Mining Locations: The courts have allowed local governments to use their zoning powers to designate the location of mines in their communities, just as they would any other land use.

Scenic Hudson, Inc. v. Town of Fiskill Town Board, 266 A.D.2d 462 (2d Dept. 1999) (the court upheld, on SEQRA grounds, a local zoning law which banned mining from residential districts and permitted it in industrial districts).

Seaboard Contracting & Material, Inc. v. Town of Smithtown, 147 A.D.2d 4 (2d Dept. 1989) (the court upheld the Town’s zoning ordinance which required mines to be located more than 500 feet from a residential district, a school, church or similar place of public assembly. The court held that the zoning ordinance regulated the location of the mine, not its operation, and it was not preempted by the MLRL).

3 Non-conforming Uses: Some municipalities have amended their zoning laws to make mines non-conforming uses. As a non-conforming use, a local law could prohibit a mine’s expansion or require it to be extinguished if abandoned after a certain period of time.

Town of Washington v. Dutchess Quarry & Supply Co., Inc., 250 A.D.2d 759 (2d Dept. 1998) (the court held that a local government could limit the expansion of mines that are prior non-conforming uses).

Stephentown Concerned Citizens v. Herrick, 246 A.D.2d 166 (3d Dept. 1998) (the Town amended its zoning law to make a gravel mine a non-conforming use which would expire upon ceasing operation for longer than a year).

4 Floating Zones: Some municipalities have created floating zones to address mining. A local law is adopted to land the zone after certain standards are met. Gives a municipality flexibility to determine if a mining use is appropriate in a particular area.

3. Local Land Use Laws of General Applicability

The MLRL does not prevent a local government from enacting or enforcing local laws of general applicability which do not specifically regulate mining or reclamation activities. MLRL § 23-2703 (2)(a). Courts have held that local laws of general applicability on their face which regulate land uses with only incidental affect on mining, are not superceded by the MLRL. Examples:

1 Construction Activities on Steep Slopes:

Patterson Materials Corp. v. Town of Pawling, 264 A.D.2d 510 (2d Dept. 1999) (holding that local ordinances regulating construction-type activities on steep slopes, wetlands and other environmentally sensitive areas were laws of general applicability with only incidental affect on mining and not superceded by the MLRL).

2 Timber Harvesting:

Seaboard Contracting & Material, Inc. v. Town of Smithtown, 147 A.D.2d 4 (2d Dept. 1989) (mining company challenged a tree removal/preservation law which regulated tree removal and its related drainage and storm water impacts as being pre-empted by the MLRL. The court upheld the law stating that it was a reasonable land use regulation which applied equally to all landowners in the community with only an incidental affect on mining).

Patterson Materials Corp. v. Town of Pawling, 264 A.D.2d 510 (2d Dept. 1999) (a local law that regulated timber harvesting throughout the Town was a law of general applicability with only incidental affect on mining).

3 Building Permits:

Town of Parishville v. Contore Co., Inc., 237 A.D.2d 67 (3d Dept. 1998) (a mining company argued that a local law requiring it to obtain building permits from the Town for its scale house and scale was preempted by the MLRL. The court held that the law regulated the location, construction and use of buildings throughout the Town. The law was of general applicability which did not attempt to regulate mining, but rather served to regulate land use in general).

4 Other Local Laws of General Applicability:

- Noise Ordinance

- Highway Weight Limitations

- Freshwater Wetlands Laws

4. Examples of Impermissible Mining Regulations By Municipalities

Town of Ogden v. Manitou Sand & Gravel Co, Inc., 252 A.D.2d 964 (4th Dept. 1998) (the court held that a local law which permitted mining only by mechanical means and outlawed blasting was superceded by the MLRL as an impermissible regulation of the methods of mining).

Philipstown Industrial Park, Inc. v. Town Bd. of Town of Philipstown, 247 A.D.2d 525 (2d Dept. 1998) (the court annulled a local law that regulated mining and excavation activities such as screening, degree of slopes, dust suppression and hours of operation in addition to those imposed by DEC. The court found that law regulated the specifics of mining in violation of the MLRL).

Town of Throop v. Leema Gravel Beds, Inc., 249 A.D.2d 970 (4th Dept. 1998) (the court annulled, without explanation, a section in the Town’s zoning code entitled “Mining and Extraction” which allegedly regulated mining operations and processing, but upheld the need for a zoning permit).

Hoffay v. Tifft, 164 A.D.2d 94 (3d Dept. 1990) (town’s prohibition on using a rock crusher at a mine site related specifically to the mining process itself , as opposed to land use, and was superceded by the MLRL).

Hawkins v. Town of Preble, 145 A.D.2d 775 (3d Dept. 1988) (local law prohibiting mining below the water table amounted to an impermissible regulation of mining operations which violated the MLRL. The law was annulled).

5. Special Use Permits

Where mining is permitted in a zoning district and allowed by special use permit, the MLRL limits the conditions that can be imposed in the permit to the following:

(1) ingress and egress to public roads controlled by the local government;

(2) routing trucks on roads controlled by the municipality;

(3) conditions in DEC’s mining permit relating to setbacks, dust control, hours of operation;

(4) enforcement of the reclamation requirements in DEC’s mining permit

Some municipalities have denied special use permits for mines for failing to meet the standards for obtaining such a permit under their zoning laws. The courts have upheld the special use permit process as a general land use regulation affecting the location of mining, not the actual mining operation.

Cipperley v. Town of East Greenbush, 262 A.D.2d 764 (3d Dept. 1999) (the court held that mines are not entitled, as of right, to special use permits and must demonstrate that the use conforms to the requirements in the zoning law. In this case, the mining company failed to demonstrate, as required by the local zoning law, that the use would be in harmony with the orderly development of the zoning district. Evidence was presented that the roadway network around the proposed mine had limited site distances and weight limitations that could not safely accommodate gravel trucks).

Schadow v. Wilson, 191 A.D.2d 53 (3d Dept. 1993) (the court held that the Town’s zoning law which allowed mines (and other uses) by special use permit provided certain generic standards were met, was not superceded by the MLRL. The court upheld the town’s determination that the miner had failed to meet the following standards: (1) the use must be in harmony with the orderly development of adjacent residential districts; (2) traffic from the use must not be hazardous or inconvenient to the neighborhood; (3) real estate values must not be adversely affected; and (4) the public welfare must be substantially served by the use).

6. Site Plan Review

The MLRL does not prevent a local government from requiring all new commercial uses, like mining, from obtaining site plan approval.

Town of Throop v. Leema Gravel Beds, Inc., 249 A,D.2d 970 (4th Dept. 1998) (the court held that a local law requiring a mine operator, and other uses, to undergo site plan review was not superceded by the MLRL because it was a valid exercise of generally applicable land use regulations).

To the extent that site plan review begins to regulate the specifics of the mining activity, it will be preempted, most likely, by MLRL.

7. The DEC Mining Permit Process

Local governments should participate freely in DEC’s mining permit process. The MLRL requires DEC to provide a complete application to the municipality in which the mine will be located. MLRL § 23-2711(3)

After receiving the application, the MLRL directs local governments to advise DEC about the following issues:

(1) the appropriate setbacks from roads and property boundaries;

(2) the location and design of barriers to restrict access to the mine;

(3) dust control issues;

(4) hours of operation; and

(5) whether mining is prohibited in that location

If the municipality’s determinations are reasonable and necessary, the MLRL requires DEC to incorporate them into its mining permit. If DEC disagrees with the determinations, it must notify the local government.

DEC Is SEQRA Lead Agency: As an involved agency in the SEQRA process, local governments are obligated to provide comments to DEC on potentially significant environmental impacts.

8. Regulation of Small Scale Mines

The MLRL does not prevent local government from enacting or enforcing local laws regulating mining or the reclamation of mines not required to be permitted by the State. MLRL § 23-2703(2)(c).

Some local governments regulate mines that fall below DEC’s regulatory threshold. DEC does not regulate mines extracting less than 1000 tons or 750 cubic yards, which ever is less, over a period of 12 successive months, or less than 100 cubic yards of materials from adjacent to any body of water not subject to jurisdiction of ECL Article 15 (wetlands) or to the public lands law.