Preview
FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
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In the Matter of the Application of
TOWN OF BROOKHAVEN, Index No.: 907862-22
Petitioner,
AMENDED
For an Order Pursuant to Article 78 of the VERIFIED PETITION
Civil Practice Law and Rules and Agriculture and
Markets Law §37
- against -
RICHARD A. BALL, COMMISSIONER OF THE NEW
YORK STATE DEPARTMENT OF AGRICULTURE &
MARKETS AND DELEA SOD FARMS, INC.,
Respondent.
-and-
CENTRAL PINE BARRENS JOINT PLANNING & POLICY
COMMISSION,
Additional Respondent,
Joined as Necessary/Affected Party
under CPLR 1001(a).
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Petitioner, TOWN OF BROOKHAVEN, by its attorneys, Rosenberg Calica & Birney
LLP, (as Special Counsel to Brookhaven Town Attorney Annette Eaderesto, Esq.), for its
Amended Verified Petition herein, states:
Introduction
1. This Amended Petition is filed pursuant to Stipulation of counsel dated November
11, 2022 (NYSCEF Doc. 19) to address, review and annul the post-Petition filing by the New
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York State Department of Agriculture of a further Order dated November 22, 2022 described
below (Ex. A-2 hereto).
2. This Article 78 proceeding and Petition and Amended Petition is brought to annul
a Determination (initially rendered in letter form dated September 14, 2022) by Respondent,
Richard A. Ball, Commissioner of the New York State Department of Agriculture & Markets
(the “Department”) pursuant to the provisions of Agriculture and Markets Law (“AML”) §305-a
against the Town of Brookhaven, New York (“Brookhaven” or the “Town”) located in central
Suffolk County, New York, and supplemented by a further, substantially identical paper
denominated as an “Order” dated November 22, 2022 (collectively, the “AML Order”).
3. The AML Order upheld the claims of Respondent Delea Sod Farms, Inc. (“Delea
Sod” or “Delea”) to bar enforcement by the Town of certain Brookhaven Zoning Code
provisions applicable to Delea Sod’s large scale mulch and compost storage and bulk/
commercial sale facility located in Long Island’s statutorily protected Central Pine Barrens area
as defined and protected under the Environmental Conservation Law.
4. The AML Order was purportedly exercised pursuant to the Department’s
authority under AML §305-a to find that “local governments’…local laws, ordinances, rules or
regulations” are being “administer[ed]” in a manner so that “farm operations would be
unreasonably restricted,” and to render an opinion “upon the request of any…farm owner or
operation…as to whether farm operations would be unreasonable by restricted or regulated
by…local land use regulations, ordinances or local laws pertaining to agricultural practices….,”
and to “bring an action to enforce” its provisions.
5. The AML Order, initially in letter form addressed to Brookhaven Town
Supervisor, Edward Romaine (Ex. A-1), “concludes that the Town of Brookhaven Zoning Code
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and its administration by the Town, unreasonably restricts farm operations in violation of AML
§305-a(1), by restricting Delea’s proposed sale of mulch, topsoil and other products, that are
utilized in the installation of sod or which are incidental and contribute to the marketing of
nursery stock.”1 It was supplemented procedurally by a further paper denominated as an “Order”
dated November 22, 2022 (Ex. A-2) which made no substantive or other change other than
converting it to Order form and appending the September 14, 2022 letter to it.2
6. In fact, as established herein, the cited Brookhaven Zoning Code (published at
https://ecode360.com/33729641, Article 85) does neither inasmuch as mulch is not “utilized in
the installation of sod” (which Delea concedes) and Delea Sod’s bulk mulch and compost sales
are in no manner “incidental to and contribute to the marketing of nursery stock.”
7. More fundamentally, as established below (and in the Record), the Brookhaven
Town Code provisions are not mere “local laws” at all. Rather, they are an integral part of the
New York State Long Island Pine Barrens Protection Act, ECL §57-0101 et seq., and of the
“Central Pine Barren Comprehensive Land Use Plan” adopted by additional Respondent Central
Pine Barrens Joint Planning & Policy Commission (“Central Pine Barrens Commission”) which
is a “state agency, a planning board and a park commission” (https://pb.state.ny.us/about-
1
The AML Order essentially reaffirmed the position taken in the Department’s initial, but non-final letter
dated November 19, 2021 (the “Interim Decision”) Ex. B hereto, which is provided because the Interim
Decision inexplicably contains conflicting provisions with the final AML Order.
2
The Department’s counsel sought and obtained an unnecessarily long adjournment (5 months) upon the
pretextual contention that the September 14, 2022 Letter (Ex. A-1) was not a “final” Determination
(which it indisputably was, see Best Payphones, Inc. v. Department of Information, Technology, etc., 5
N.Y.3rd 30 (2005)) and that a further “formal” Order of the Department was required and threatening to
move for dismissal upon “prematurity” grounds unless an excessive 5 month long filing schedule was
agreed to. The utter meritlessness of this pretextual tactic is exposed in the purportedly “formal”
November 22, 2022 Order (Ex. A-2) which merely changes the “label” of the paper to an “Order” and
appends a copy of the September 14, 2022 Letter Determination as its determination. Such dilatory
conduct is clearly indefensible.
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us/overview/). The Town’s and the Central Pine Barrens Commission’s specific statutory role in
adopting and enforcing its Comprehensive Land Use Plan and the statutorily protected Central
Pine Barrens area of Long Island, including the Long Island Pine Barrens Protection Act’s own
and materially different definition of “agriculture” and “development” (see ECL §§ 57-0107 (13)
and (14)) supersedes that of the Commissioner of Agriculture under AML §305-a because the
Long Island Pine Barrens Protection Act, ECL §57-0101 et seq., and its definition of agriculture
is a “special law” applicable only to the Central Pine Barrens area, while the AML and its
definition of agriculture is a “general law” applicable state-wide. Additionally, the Long Island
Pine Barrens Protection Act flatly prohibits any state agency, department or commission from
overriding the Central Pine Barrens Commission’s “Comprehensive Land Use Plan.” See ECL
§57-0123(3)(a) quoted at ¶27 below.
8. Thus, directly presented to the Court herein is the Department’s impermissible
attempt to invoke AML provisions, and definitions of “agriculture” which are “general laws,” in
a manner which, when exercised against local laws regulating “development” activities in the
Central Pine Barrens area, is preempted by the Long Island Pine Barrens Protection Act, which is
a “special law”.
The Central Pine Barrens Area and the Jurisdiction of the Central Pine Barrens
Commission and the Town of Brookhaven
9. Respondent, Delea Sod operates a lawful sod farming operation on an
approximately 250 acre plus site in Miller Place, New York (the “Sod Farm”) which is located in
the statutorily protected “Central Pine Barrens area” of Suffolk County created by the Long
Island Pine Barrens Protection Act of 1993. The lawful sod farming activities are not at issue
herein, only the bulk/commercial loading, storage and sale of imported mulch and compost is.
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10. The Central Pine Barrens area of Long Island is governed and protected by ECL
§57-0136 and §57-0107 which renders a violation of the subject Brookhaven Zoning Code
provision a parallel violation of the Environmental Conservation Law under the Long Island Pine
Barrens Protection Act (ECL §57-0101 et seq.) and thus a violation of the Environmental
Conservation Law itself.
11. At issue is only an unlawful ten acre portion adjacent to the otherwise lawful 258
acre Delea Sod Farm operation at which 10-acre site Delea Sod is illegally conducting and
operating an industrial-scale mulch and compost storage and bulk sale facility in a manner which
violates the provisions of the Brookhaven Town Code (even violating Brookhaven’s own
expansive “Farmland Bill of Rights”, Town Code §85-925, which otherwise endorses,
encourages and permits “bona fide agricultural production”) and violates the parallel prohibitions
of the Long Island Pine Barrens Protection Act. (See, site photos of mulch, compost storage,
processing and bulk sale facility from Record before the Department, collectively Ex. C).
12. The Town Zoning Code provisions at issue were among those local zoning laws
approved as part of the “Central Pine Barrens Comprehensive Land Use Plan” by the additional
respondent, Central Pine Barrens Planning and Policy Commission (the “Central Pine Barrens
Commission”), a Commission established under the Long Island Pine Barrens Protection Act
with express statutory jurisdiction to coordinate local zoning and development in the Central
Pine Barrens area which are vital to the “protection of the hydrologic and ecological integrity of
the region, as well as the public’s health and welfare for future generations.” (ECL §57-
0107(3)).
13. The statutory role of the Central Pine Barrens Commission, which by law is a
“state agency, a planning board, and a park commission” (see, https://pb.state.ny.us/about-
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us/overview/) with unique statutory jurisdiction and oversight in the protected Central Pine
Barrens area, is as follows:
“The New York State Legislature approved and Governor Mario
Cuomo signed the Long Island Pine Barrens Protection Act into law
in 1993, thereby creating the spectacular natural and cultural
resource called the Central Pine Barrens region. The main goals of
the Act were the protection of ground, surface, and drinking water
and preservation of the area’s significant vast ecological resources.
The Act defined and described the boundaries of this area, which is
located in central and eastern Suffolk County on Long Island and
which comprises portions of eastern Brookhaven Town, southern
Riverhead Town and western Southampton Town. The region
consists of approximately 105,000 acres of land. The ecological
communities found in the Central Pine Barrens are part of a globally
rare ecosystem, one of only a handful of Pine Barrens ecosystems
found in the northeastern United States. The Central Pine contains
vast areas of undeveloped, vegetated and protected public and
private lands as well as farmland, communities and other active
areas. The map on the right can be downloaded and saved as a pdf
by clicking on the image.
The Act also created a five-member Central Pine Barrens Joint
Planning and Policy Commission with one member each
representing New York State, Suffolk County, and the Towns of
Brookhaven, Riverhead and Southampton, with one of the members
serving as chair. The Central Pine Barrens legislation also formed
an Advisory Committee and mandated the creation and
implementation of the Central Pine Barrens Comprehensive Land
Use Plan, which was first adopted in June of 1995.
The Act and the land use plan charge the Commission with the
combined duties of a state agency, a planning board and a park
commission. The Commission has joint land use review and
regulation, permitting, and enforcement authority along with local
municipalities and also oversees the implementation of the land use
plan.”3
3
See also, Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning and
Policy Commission, 113 A.D.3d 853 (2nd Dept. 2014), recognizing the Commission as a “regional
planning agency “with authority to adopt a “comprehensive land use plan” which includes the very
Brookhaven Zoning Code section at issue.
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14. Notwithstanding the general public policy underlying AML 305-a of “protecting,
conserving and encouraging ‘the development and improvement of…agricultural lands” by
authorizing the Commissioner, in a proper case, to invalidate “unreasonably restrictive local laws
and ordinances” (see, Town of Lysander v. Hafner, 96 N.Y.2d 558), the overly broad and
overreaching AML Order here directly violates the specific and contrary statutory policy of the
more targeted “special law” applicable to the limited Central Pine Barrens area contained in the
“Legislative Findings and Intent” provisions of ECL §57-0105 reading:
“The legislature recognizes that the provisions of this title may
restrict the beneficial use of some lands currently in private
ownership. These restrictions are deemed to be necessary and
desirable to protect and preserve the hydrologic and ecologic
integrity of the Central Pine Barrens area as well as the public's
health and welfare for future generations. The legislature intends
that a comprehensive regional land use plan be implemented
whereby private landowners whose property is located within the
Central Pine Barrens area are afforded an opportunity to receive
benefits from the plan such as transferable development rights,
conservation easements, rights and values transfers, purchase of
development rights and/or fee acquisition with monetary
compensation.” (emphasis supplied)
15. Further, as shown below (paragraphs 31 to 39), numerous provisions of the Long
Island Pine Barrens Protection Act provide that it is to be “implemented” and enforced by
Brookhaven’s (and four other named municipalities’) local laws. See ECL 57-0121; 57-0105;
57-0107, at subdivisions [13] and [14]; ECL 57-0136(b) and ECL § 57-0123, Implementation of
the Central Pine Barrens comprehensive land use plan (providing that the Town of Brookhaven
along with the two other named Towns and two named Villages is to “implement” the Central
Pine Barrens Comprehensive Land Use Plan via local laws).
16. By overriding the Long Island Central Pine Barrens Protection Act’s own specific
and dissimilar definition of “agriculture” and by overriding the Brookhaven Town Zoning Code
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and its already expansive Farmland Bill of Rights so as to authorize Delea Sod to maintain and
operate an industrial-scale mulch, compost, storage and commercial bulk sale facility at the
Delea Sod farm by, inter alia, storing and continually replenishing five times the permitted 3,000
cubic yard limit of “imported” organic materials (including mulch and compost) sold on a bulk
sale basis by means of front loader deliveries onto commercial dump trucks in a residential zone
directly abutting the Delea Sod farm, the AML Order violates the specific and overriding public
policy of the Long Island Central Pine Barrens Protection Act.4
17. The limited circumstances in which the Courts have upheld AML Orders
overriding local zoning laws under AML §305-a have been clear instances where, unlike here,
local zoning restricted economically vital components of farming activities such as by barring
mobile homes used for worker housing (Town of Lysander v. Hafner, supra), utilizing methods
of fertilizing deemed necessary (Town of Butternuts v. Davidsen, 259 A.D.2d 886 (3rd Dept.
1999); Matter of Town of Wheatfield v. Ball, 2018 WL 4916171 (Sup. Ct. Albany 2018)), or
otherwise compromising the farm’s operations and financial viability, none of which is presented
here where the sale to off-site commercial users of imported mulch and off-site sales of compost
in quantities exceeding the Brookhaven Town Code’s limit of 3,000 cubic yards of stored
organic material have no such impact whatsoever. It is a mere convenience to make more money
from sales of collateral products not used for installation or planting of sod by Delea’s
customers.
4
The Brookhaven “Farmland Bill of Rights” contained in Town Code §85-925 (a statute approved by the
Pine Barrens Commission) permits “storage and use of organic material for the subject farm [limited to] a
maximum 3,000 cubic yards of organic material [which] may be utilized off site. Nothing herein shall be
construed to allow a commercial mulching operation or the stockpiling and screening of compost for sale
to others.”
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18. The AML Order’s position that overriding the Central Pine Barrens
Commission’s statutorily authorized Comprehensive Land Use Plan (ECL 57-0123[3][a]) is
justified on the ground that the “Town’s submissions…offer no public health or safety
documentation or evidence,” ignores the explicit Statutory and Legislative Findings of the
Central Pine Barrens Protection Act that the Central Pine Barrens Comprehensive Land Plan is
required to “protect the hydrologic and ecological integrity of the region, as well as the public’s
health and welfare for future generations.” ECL 57-0107(3). Under Town of North Hempstead
v. Exxon Corp., 53 NY2d 747 (1981), the New York Legislature’s express “Legislative Findings
and Intent” cannot be overcome by such a blithe assertion, inasmuch as “the burden of proof [of
establishing invalidity beyond a reasonable doubt] is upon the party challenging the ordinance
and the mere presence of empirical evidence that casts doubt upon the existence of the hazards
sought to be alleviated by the legislation is not conclusive of proof of its invalidity.” As a result,
even “impressive evidence to the contrary” is legally insufficient to meet the highest of legal and
evidentiary burdens imposed on a party seeking to invalidate a “public health and welfare” law,
such as the Long Island Central Pine Barrens Act by establishing its “invalidity” “beyond a
reasonable doubt” (citing Lighthouse Shores v. Town of Islip, 41 NY2d 7 (1976).
19. For the same reason, the so-called “deference” ordinarily accorded to the Department’s
assessment of impacts on public health (see, Town of Lysander v. Hafner, supra), does not and cannot
apply here where it is the Legislature itself in the Long Island Pine Barrens Protection Act at ECL §57-
0107(3), that determined that adherence to the Act’s Central Pine Barrens Comprehensive Land Use Plan
“are restrictions…deemed necessary and desirable to protect the hydrologic and ecological integrity of the
region, as well as the public’s health and welfare for future generations,” and prohibited “state approval”
or “consent” for “any disturbance of land within such area unless such approval or grant conforms to the
provisions of such land use Plan.” ECL §57-0123(3)(a).
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Parties
20. At all pertinent times alleged herein, Petitioner Town of Brookhaven
(“Brookhaven” or the “Town”) was and is a duly organized New York municipal corporation
with its principal please of business located at 1 Independence Hill, Farmingville, New York
11738.
21. At all pertinent times alleged herein, Respondent, Richard A. Ball was, is, and
performed the actions and rendered the AML Order under review in his capacity as the
Commissioner of the New York State Department of Agriculture and Markets (“Department”).
22. At all pertinent times alleged herein, defendant Delea Sod Farms, Inc. was and is
a duly organized New York corporation with its principal offices located in Suffolk County, New
York which owns and operates an approximately 258 acre sod farm located in Miller Place, New
York, of which an approximately 10 acre portion is devoted to industrial-scale mulch and
compost storage and bulk sale facility activities are at issue.
23. At all pertinent times alleged herein, additional Respondent, Central Pine Barrens
Joint Planning & Policy Commission (“Central Pine Barrens Commission”) was and is a New
York State Commission comprised of public officers including the County Executive of Suffolk
County, the Supervisors of the Towns of Brookhaven, Riverhead and Southampton, and a
designee of the Governor of the State of New York created by the Long Island Pine Barrens
Preservation Act of 1993 and which by statute possesses the “combined duties of a state agency,
a planning board and a park commission” with “joint land use review and regulation,
permitting, and enforcement authority along with local municipalities and also oversees the
implementation of the land use plan” in the Central Pine Barrens region.
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24. The Central Pine Barrens Commission is joined solely as a necessary and affected
party under CPLR 1001(a). See, New York v. Long Island Airports Limousine Serv. Corp., 48
N.Y.2d 469 (1979).
Delea Sod’s Violations
25. Delea Sod’s activities violate Brookhaven Town Code5 prohibitions against:
(i) Engaging in the processing, storage, and commercial and retail
sale and bulk deliveries of mulch, topsoil, logs, wood chips and
other organic materials (in excess of 3,000 cubic yards for storage
purposes only authorized pursuant to the Town of Brookhaven
Farmland Bill of Rights, Town Code §85-925);
(ii) Conducting these illegal activities in the Central Pine Barrens
Compatible Growth Area as established by ECL §57-0137 and
Brookhaven Town Code 85-722, where they are prohibited under
ECL §57-0107;
(iii) Commercial and industrial activity is prohibited in Residential
Districts (Brookhaven Town Code § 85-378), not falling within the
Farmland Bill of Rights (Brookhaven Town Code §85-925);
(iv) Violating the Conditional Discharge Agreement providing:
“defendant to comply with Section 85-925 farmland Bill of Rights
sub section C-12 by maintaining a maximum of 3000 cubic yards of
organic materials which may be used off site. Nothing herein should
be construed to allow a commercial mulching operation or the stock
piling and screening of compost for sale to others. Additionally,
defendant to cease all other non permitted uses including but not
limited to sale of decorative stone, statu[]es, and other non accessory
agriculture items.”
5
As indicated, the Brookhaven Town Code is published at https://ecode360.com/33729641.
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The AML Order Unlawfully Attempts to Preempt and Contravene the Long Island
Pine Barens Protection Act of 1993
26. Delea Sod is located in the Compatible Growth Area of the Long Island Pine
Barrens. The Brookhaven Town Code provisions which the AML Order attempts to preempt are
zoning laws enacted pursuant to the express authority of the Long Island Pine Barrens Protection
Act of 1993 (1993 N.Y. Laws ch 262, codified as amendments to N.Y. ECL §57-0101, et seq.),
and are specifically incorporated into that Act and the Long Island Pine Barrens Commission’s
Comprehensive Land Use Plan created pursuant to that Act. As both the Town’s Memorandum
of Law before the Department (Ex. H and I), and its accompanying Memorandum of Law
demonstrate, the express text of the Long Island Pine Barrens Protection Act of 1993, as well as
the fact that it is a New York State “special law,” establish that the Agriculture and Markets Law
must yield, and that the Department does not have authority to contravene those local laws
incorporated into and implementing the Pine Barrens statute. See N.Y. Env’t Conserv. Law §§
57-0123(3)(a), § 57-0121(2)(d); Pine Barrens Commission Land Use Plan, including at its Ch. 5,
Standards and Guidelines for Land Use, § 5.3.3.10.1 (published at https://pb.state.ny.us/assets/1
/6/Chapter_5_Ministerial_amendments_only_clean_copy.pdf).
27. Because of the express texts of the relevant statutes, and because the Long Island
Pine Barrens Protection Act is a “special law,” whereas the relevant Agriculture and Markets
Law provisions are “general laws,” the Pine Barrens Act prevails and the Department has no
authority to preempt or diminish local laws enacted pursuant to the Act. To the contrary, ECL
§57-0123(3)(a) explicitly provides that the Department is prohibited from granting approvals
contrary to the Pine Barrens Land Use Plan:
“Subsequent to the adoption of the [Pine Barrens] land use plan, the
provisions of any other law, ordinance, rule or regulation to the
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contrary notwithstanding, no application for development within the
Central Pine Barrens area shall be approved by any municipality or
county or agency thereof or the commission, and no state approval,
certificate, license, consent, permit, or financial assistance for the
construction of any structure or the disturbance of any land within
such area shall be granted, unless such approval or grant conforms
to the provisions of such land use plan.” (emphasis supplied)
The AML Order Rests on False Factual Findings
28. As further shown, the AML Order’s factual findings are not merely arbitrary,
capricious and irrational, but are actually false factual findings directly contradicted by the
Record before the Commissioner.
29. Further, as just shown in paras. 11 through 18 above, the AML Order’s Finding
that the Town presented “no public health or safety documentation or evidence,” wholly ignores
what the New York State Legislature already found in the “Legislative Findings and Intent”
section of the Long Island Pine Barrens Protection Act in ECL §57-0105, i.e., that the Act’s
“restrictions are deemed to be necessary and desirable to protect the hydrologic and ecological
integrity of the region, as well as the public’s health and welfare for future generations.”
30. As extensively quoted in the Town’s attached Memorandum of Law, the Act does
so by carefully and pervasively regulating “development” activities as its prime means of
protecting the environment and the Long Island Sole Source Aquifer. See ECL 57-0121 and 57-
0105. Further, ECL 57-0107, at subdivisions [13] and [14], provide that “development” activity
is anything that is not allowed by local zoning, and it contains a definition of non-developmental
“agricultural” which is limited to actual on-site agricultural activity.
31. In fact, the Legislative Intent section of the Act (ECL 57–0105) explicitly states
that it was passed “to allow the state [through the Pine Barrens Commission and the DEC] and
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local governments to protect, preserve and properly manage the unique natural resources of the
Pine Barrens Peconic Bay system.”
32. Moreover, ECL 57-0121(2)(d) provides that with respect to Compatible Growth
Areas within the Pine Barrens Protection Area, that the Pine Barrens Commission’s Land Use
Plan shall be designed to regulate and “encourage appropriate patterns of compatible residential,
commercial, agricultural, and industrial development in order to accommodate regional growth
influences in an orderly way while protecting the Pine Barrens environment from the individual
and cumulative adverse impacts thereof” (emphasis added).
33. The Commission’s Land Use Plan, as amended, of course incorporates the same
definition of “Development” as the ECL, including that it involves any land uses not authorized
by local zoning and land use restrictions. See Pine Barrens Commission’s Comprehensive Land
Use Plan § 4.3.5 (published at: https://pb.state.ny.us/assets/1/6/CLUP_Vol_1_11-21-
2012wamend.pdf). It further provides, among other things, that “These standards shall be
incorporated into local land use and development review procedures, ordinances and laws by
the local municipalities” (id. at 5.3.1), that “Projects proposed in the Compatible Growth Area
must conform to all other involved agency jurisdictions and permit requirements in effect on the
project site” (id.), and “Where standards contained in the Plan differ from state, county, or local
requirements, the stricter standard(s) shall apply” (id. at § 5.3.3). Published at https://pb.state.ny
.us/assets/1/17/final_draft_version_3-18-2015_ch_5_proposed_amendments_w_Fig_5-2_
strikeout.pdf.
34. Additionally, ECL 57-0136(b) provides that:
With respect to any land use conduct within the Central Pine Barrens
Area that violates any provision of an applicable village or town law,
the responsibility for enforcement of such violation shall lie with the
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applicable village or town in the first instance as provided for in the
laws of the respective town or village….
35. Further, ECL § 57-0123, Implementation of the Central Pine Barrens
comprehensive land use plan, provides that the Town of Brookhaven (along with the Towns of
Southampton and Riverhead and the Villages of Quogue and Westhampton Beach) are to
“implement” the Central Pine Barrens Comprehensive Land Use Plan via local laws.
36. The Brookhaven Town Code (published at https://ecode360.com/33729641) at its
Chapter 85, Article XXV, implements these ECL provisions and the Commission’s
Comprehensive Land Use Plan. See Brookhaven Town Code § 85-719.
37. Brookhaven Town Code § 85-720, like the ECL, defines “development” as actual
compliance with established local zoning and land use requirements, and exactly like the ECL
provides that “agriculture” is “nondevelopment” only to the extent it involves on-site agriculture,
not materials imported into the site via a large-scale commercial operation as Delea Sod is
conducting.
38. Moreover, Brookhaven Town Code § 85-722—like the ECL and the
Commission’s Comprehensive Plan which, as shown, protect the Compatible Growth Areas from
“piecemeal and scattered development” and encouraging development which is “compact,
efficient and orderly” by mandating actual compliance with existing local laws and zoning
restrictions—provides that only uses permitted in the underlying zoning district classification are
permitted for properties in the Compatible Growth Area, absent a hardship exemption from the
Pine Barrens Commission.
39. Thus, as a matter of law and directly contrary to the AML Order, the State
Legislatures’ legislative intent, restrictions on all “development” activities, definition of
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development activities as those activities as those defined in the local land use laws, express
categorization of off-site agricultural activities as included in development to the full extent it is
regulated by local laws, and finding that all of this is to protect the Long Island Aquifer and the
Central Pine Barrens region, is the clearest showing and evidence of environmental harm
resulting from Delea Sod’s activities. Indeed, the Court of Appeals in Town of North Hempstead
v. Exxon Corp., 53 N.Y.2d 747, 749 (1981), went so far as to hold that expressions of legislative
intent are so binding on the courts that “[s]o long as there is evidence that the question is at least
debatable, the legislative judgment is not irrational” and must be followed.
The AML Order Further Authorizes Delea Sod to Evade a Conditional Discharge Order
Entered Into By Delea Sod in Prior Code Enforcement Proceedings Against It
40. Further, by operating a commercial mulching and compost facility and engaging
in bulk sales of these materials to commercial users distributed via front loaders into dump trucks
and other large vehicles,6 Delea Sod is engaging in the precise same illegal conduct to which it
previously pleaded guilty on September 14, 2017 in prior Code Enforcement proceedings
brought by Brookhaven under a “Conditional Discharge” Order providing as follows:
“In addition, it is further ordered as a Condition of Discharge that
defendant to comply with Section 85-925 farmland Bill of Rights
sub section C-12 by maintaining a maximum of 3000 cubic yards of
organic materials which may be used off site. Nothing herein should
be construed to allow a commercial mulching operation or the stock
piling and screening of compost for sale to others. Additionally,
defendant to cease all other non permitted uses including but not
limited to sale of decorative stone, and all other non accessory,
agriculture items, statutes.” (emphasis supplied) (Ex. D).
Preview
FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY ---------------------------------------------------------------------------X In the Matter of the Application of TOWN OF BROOKHAVEN, Index No.: 907862-22 Petitioner, AMENDED For an Order Pursuant to Article 78 of the VERIFIED PETITION Civil Practice Law and Rules and Agriculture and Markets Law §37 - against - RICHARD A. BALL, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS AND DELEA SOD FARMS, INC., Respondent. -and- CENTRAL PINE BARRENS JOINT PLANNING & POLICY COMMISSION, Additional Respondent, Joined as Necessary/Affected Party under CPLR 1001(a). ------------------------------------------------------------------------------X Petitioner, TOWN OF BROOKHAVEN, by its attorneys, Rosenberg Calica & Birney LLP, (as Special Counsel to Brookhaven Town Attorney Annette Eaderesto, Esq.), for its Amended Verified Petition herein, states: Introduction 1. This Amended Petition is filed pursuant to Stipulation of counsel dated November 11, 2022 (NYSCEF Doc. 19) to address, review and annul the post-Petition filing by the New {00437146-6} 1 1 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 York State Department of Agriculture of a further Order dated November 22, 2022 described below (Ex. A-2 hereto). 2. This Article 78 proceeding and Petition and Amended Petition is brought to annul a Determination (initially rendered in letter form dated September 14, 2022) by Respondent, Richard A. Ball, Commissioner of the New York State Department of Agriculture & Markets (the “Department”) pursuant to the provisions of Agriculture and Markets Law (“AML”) §305-a against the Town of Brookhaven, New York (“Brookhaven” or the “Town”) located in central Suffolk County, New York, and supplemented by a further, substantially identical paper denominated as an “Order” dated November 22, 2022 (collectively, the “AML Order”). 3. The AML Order upheld the claims of Respondent Delea Sod Farms, Inc. (“Delea Sod” or “Delea”) to bar enforcement by the Town of certain Brookhaven Zoning Code provisions applicable to Delea Sod’s large scale mulch and compost storage and bulk/ commercial sale facility located in Long Island’s statutorily protected Central Pine Barrens area as defined and protected under the Environmental Conservation Law. 4. The AML Order was purportedly exercised pursuant to the Department’s authority under AML §305-a to find that “local governments’…local laws, ordinances, rules or regulations” are being “administer[ed]” in a manner so that “farm operations would be unreasonably restricted,” and to render an opinion “upon the request of any…farm owner or operation…as to whether farm operations would be unreasonable by restricted or regulated by…local land use regulations, ordinances or local laws pertaining to agricultural practices….,” and to “bring an action to enforce” its provisions. 5. The AML Order, initially in letter form addressed to Brookhaven Town Supervisor, Edward Romaine (Ex. A-1), “concludes that the Town of Brookhaven Zoning Code {00437146-6} 2 2 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 and its administration by the Town, unreasonably restricts farm operations in violation of AML §305-a(1), by restricting Delea’s proposed sale of mulch, topsoil and other products, that are utilized in the installation of sod or which are incidental and contribute to the marketing of nursery stock.”1 It was supplemented procedurally by a further paper denominated as an “Order” dated November 22, 2022 (Ex. A-2) which made no substantive or other change other than converting it to Order form and appending the September 14, 2022 letter to it.2 6. In fact, as established herein, the cited Brookhaven Zoning Code (published at https://ecode360.com/33729641, Article 85) does neither inasmuch as mulch is not “utilized in the installation of sod” (which Delea concedes) and Delea Sod’s bulk mulch and compost sales are in no manner “incidental to and contribute to the marketing of nursery stock.” 7. More fundamentally, as established below (and in the Record), the Brookhaven Town Code provisions are not mere “local laws” at all. Rather, they are an integral part of the New York State Long Island Pine Barrens Protection Act, ECL §57-0101 et seq., and of the “Central Pine Barren Comprehensive Land Use Plan” adopted by additional Respondent Central Pine Barrens Joint Planning & Policy Commission (“Central Pine Barrens Commission”) which is a “state agency, a planning board and a park commission” (https://pb.state.ny.us/about- 1 The AML Order essentially reaffirmed the position taken in the Department’s initial, but non-final letter dated November 19, 2021 (the “Interim Decision”) Ex. B hereto, which is provided because the Interim Decision inexplicably contains conflicting provisions with the final AML Order. 2 The Department’s counsel sought and obtained an unnecessarily long adjournment (5 months) upon the pretextual contention that the September 14, 2022 Letter (Ex. A-1) was not a “final” Determination (which it indisputably was, see Best Payphones, Inc. v. Department of Information, Technology, etc., 5 N.Y.3rd 30 (2005)) and that a further “formal” Order of the Department was required and threatening to move for dismissal upon “prematurity” grounds unless an excessive 5 month long filing schedule was agreed to. The utter meritlessness of this pretextual tactic is exposed in the purportedly “formal” November 22, 2022 Order (Ex. A-2) which merely changes the “label” of the paper to an “Order” and appends a copy of the September 14, 2022 Letter Determination as its determination. Such dilatory conduct is clearly indefensible. {00437146-6} 3 3 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 us/overview/). The Town’s and the Central Pine Barrens Commission’s specific statutory role in adopting and enforcing its Comprehensive Land Use Plan and the statutorily protected Central Pine Barrens area of Long Island, including the Long Island Pine Barrens Protection Act’s own and materially different definition of “agriculture” and “development” (see ECL §§ 57-0107 (13) and (14)) supersedes that of the Commissioner of Agriculture under AML §305-a because the Long Island Pine Barrens Protection Act, ECL §57-0101 et seq., and its definition of agriculture is a “special law” applicable only to the Central Pine Barrens area, while the AML and its definition of agriculture is a “general law” applicable state-wide. Additionally, the Long Island Pine Barrens Protection Act flatly prohibits any state agency, department or commission from overriding the Central Pine Barrens Commission’s “Comprehensive Land Use Plan.” See ECL §57-0123(3)(a) quoted at ¶27 below. 8. Thus, directly presented to the Court herein is the Department’s impermissible attempt to invoke AML provisions, and definitions of “agriculture” which are “general laws,” in a manner which, when exercised against local laws regulating “development” activities in the Central Pine Barrens area, is preempted by the Long Island Pine Barrens Protection Act, which is a “special law”. The Central Pine Barrens Area and the Jurisdiction of the Central Pine Barrens Commission and the Town of Brookhaven 9. Respondent, Delea Sod operates a lawful sod farming operation on an approximately 250 acre plus site in Miller Place, New York (the “Sod Farm”) which is located in the statutorily protected “Central Pine Barrens area” of Suffolk County created by the Long Island Pine Barrens Protection Act of 1993. The lawful sod farming activities are not at issue herein, only the bulk/commercial loading, storage and sale of imported mulch and compost is. {00437146-6} 4 4 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 10. The Central Pine Barrens area of Long Island is governed and protected by ECL §57-0136 and §57-0107 which renders a violation of the subject Brookhaven Zoning Code provision a parallel violation of the Environmental Conservation Law under the Long Island Pine Barrens Protection Act (ECL §57-0101 et seq.) and thus a violation of the Environmental Conservation Law itself. 11. At issue is only an unlawful ten acre portion adjacent to the otherwise lawful 258 acre Delea Sod Farm operation at which 10-acre site Delea Sod is illegally conducting and operating an industrial-scale mulch and compost storage and bulk sale facility in a manner which violates the provisions of the Brookhaven Town Code (even violating Brookhaven’s own expansive “Farmland Bill of Rights”, Town Code §85-925, which otherwise endorses, encourages and permits “bona fide agricultural production”) and violates the parallel prohibitions of the Long Island Pine Barrens Protection Act. (See, site photos of mulch, compost storage, processing and bulk sale facility from Record before the Department, collectively Ex. C). 12. The Town Zoning Code provisions at issue were among those local zoning laws approved as part of the “Central Pine Barrens Comprehensive Land Use Plan” by the additional respondent, Central Pine Barrens Planning and Policy Commission (the “Central Pine Barrens Commission”), a Commission established under the Long Island Pine Barrens Protection Act with express statutory jurisdiction to coordinate local zoning and development in the Central Pine Barrens area which are vital to the “protection of the hydrologic and ecological integrity of the region, as well as the public’s health and welfare for future generations.” (ECL §57- 0107(3)). 13. The statutory role of the Central Pine Barrens Commission, which by law is a “state agency, a planning board, and a park commission” (see, https://pb.state.ny.us/about- {00437146-6} 5 5 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 us/overview/) with unique statutory jurisdiction and oversight in the protected Central Pine Barrens area, is as follows: “The New York State Legislature approved and Governor Mario Cuomo signed the Long Island Pine Barrens Protection Act into law in 1993, thereby creating the spectacular natural and cultural resource called the Central Pine Barrens region. The main goals of the Act were the protection of ground, surface, and drinking water and preservation of the area’s significant vast ecological resources. The Act defined and described the boundaries of this area, which is located in central and eastern Suffolk County on Long Island and which comprises portions of eastern Brookhaven Town, southern Riverhead Town and western Southampton Town. The region consists of approximately 105,000 acres of land. The ecological communities found in the Central Pine Barrens are part of a globally rare ecosystem, one of only a handful of Pine Barrens ecosystems found in the northeastern United States. The Central Pine contains vast areas of undeveloped, vegetated and protected public and private lands as well as farmland, communities and other active areas. The map on the right can be downloaded and saved as a pdf by clicking on the image. The Act also created a five-member Central Pine Barrens Joint Planning and Policy Commission with one member each representing New York State, Suffolk County, and the Towns of Brookhaven, Riverhead and Southampton, with one of the members serving as chair. The Central Pine Barrens legislation also formed an Advisory Committee and mandated the creation and implementation of the Central Pine Barrens Comprehensive Land Use Plan, which was first adopted in June of 1995. The Act and the land use plan charge the Commission with the combined duties of a state agency, a planning board and a park commission. The Commission has joint land use review and regulation, permitting, and enforcement authority along with local municipalities and also oversees the implementation of the land use plan.”3 3 See also, Matter of Long Island Pine Barrens Society, Inc. v. Central Pine Barrens Joint Planning and Policy Commission, 113 A.D.3d 853 (2nd Dept. 2014), recognizing the Commission as a “regional planning agency “with authority to adopt a “comprehensive land use plan” which includes the very Brookhaven Zoning Code section at issue. {00437146-6} 6 6 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 14. Notwithstanding the general public policy underlying AML 305-a of “protecting, conserving and encouraging ‘the development and improvement of…agricultural lands” by authorizing the Commissioner, in a proper case, to invalidate “unreasonably restrictive local laws and ordinances” (see, Town of Lysander v. Hafner, 96 N.Y.2d 558), the overly broad and overreaching AML Order here directly violates the specific and contrary statutory policy of the more targeted “special law” applicable to the limited Central Pine Barrens area contained in the “Legislative Findings and Intent” provisions of ECL §57-0105 reading: “The legislature recognizes that the provisions of this title may restrict the beneficial use of some lands currently in private ownership. These restrictions are deemed to be necessary and desirable to protect and preserve the hydrologic and ecologic integrity of the Central Pine Barrens area as well as the public's health and welfare for future generations. The legislature intends that a comprehensive regional land use plan be implemented whereby private landowners whose property is located within the Central Pine Barrens area are afforded an opportunity to receive benefits from the plan such as transferable development rights, conservation easements, rights and values transfers, purchase of development rights and/or fee acquisition with monetary compensation.” (emphasis supplied) 15. Further, as shown below (paragraphs 31 to 39), numerous provisions of the Long Island Pine Barrens Protection Act provide that it is to be “implemented” and enforced by Brookhaven’s (and four other named municipalities’) local laws. See ECL 57-0121; 57-0105; 57-0107, at subdivisions [13] and [14]; ECL 57-0136(b) and ECL § 57-0123, Implementation of the Central Pine Barrens comprehensive land use plan (providing that the Town of Brookhaven along with the two other named Towns and two named Villages is to “implement” the Central Pine Barrens Comprehensive Land Use Plan via local laws). 16. By overriding the Long Island Central Pine Barrens Protection Act’s own specific and dissimilar definition of “agriculture” and by overriding the Brookhaven Town Zoning Code {00437146-6} 7 7 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 and its already expansive Farmland Bill of Rights so as to authorize Delea Sod to maintain and operate an industrial-scale mulch, compost, storage and commercial bulk sale facility at the Delea Sod farm by, inter alia, storing and continually replenishing five times the permitted 3,000 cubic yard limit of “imported” organic materials (including mulch and compost) sold on a bulk sale basis by means of front loader deliveries onto commercial dump trucks in a residential zone directly abutting the Delea Sod farm, the AML Order violates the specific and overriding public policy of the Long Island Central Pine Barrens Protection Act.4 17. The limited circumstances in which the Courts have upheld AML Orders overriding local zoning laws under AML §305-a have been clear instances where, unlike here, local zoning restricted economically vital components of farming activities such as by barring mobile homes used for worker housing (Town of Lysander v. Hafner, supra), utilizing methods of fertilizing deemed necessary (Town of Butternuts v. Davidsen, 259 A.D.2d 886 (3rd Dept. 1999); Matter of Town of Wheatfield v. Ball, 2018 WL 4916171 (Sup. Ct. Albany 2018)), or otherwise compromising the farm’s operations and financial viability, none of which is presented here where the sale to off-site commercial users of imported mulch and off-site sales of compost in quantities exceeding the Brookhaven Town Code’s limit of 3,000 cubic yards of stored organic material have no such impact whatsoever. It is a mere convenience to make more money from sales of collateral products not used for installation or planting of sod by Delea’s customers. 4 The Brookhaven “Farmland Bill of Rights” contained in Town Code §85-925 (a statute approved by the Pine Barrens Commission) permits “storage and use of organic material for the subject farm [limited to] a maximum 3,000 cubic yards of organic material [which] may be utilized off site. Nothing herein shall be construed to allow a commercial mulching operation or the stockpiling and screening of compost for sale to others.” {00437146-6} 8 8 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 18. The AML Order’s position that overriding the Central Pine Barrens Commission’s statutorily authorized Comprehensive Land Use Plan (ECL 57-0123[3][a]) is justified on the ground that the “Town’s submissions…offer no public health or safety documentation or evidence,” ignores the explicit Statutory and Legislative Findings of the Central Pine Barrens Protection Act that the Central Pine Barrens Comprehensive Land Plan is required to “protect the hydrologic and ecological integrity of the region, as well as the public’s health and welfare for future generations.” ECL 57-0107(3). Under Town of North Hempstead v. Exxon Corp., 53 NY2d 747 (1981), the New York Legislature’s express “Legislative Findings and Intent” cannot be overcome by such a blithe assertion, inasmuch as “the burden of proof [of establishing invalidity beyond a reasonable doubt] is upon the party challenging the ordinance and the mere presence of empirical evidence that casts doubt upon the existence of the hazards sought to be alleviated by the legislation is not conclusive of proof of its invalidity.” As a result, even “impressive evidence to the contrary” is legally insufficient to meet the highest of legal and evidentiary burdens imposed on a party seeking to invalidate a “public health and welfare” law, such as the Long Island Central Pine Barrens Act by establishing its “invalidity” “beyond a reasonable doubt” (citing Lighthouse Shores v. Town of Islip, 41 NY2d 7 (1976). 19. For the same reason, the so-called “deference” ordinarily accorded to the Department’s assessment of impacts on public health (see, Town of Lysander v. Hafner, supra), does not and cannot apply here where it is the Legislature itself in the Long Island Pine Barrens Protection Act at ECL §57- 0107(3), that determined that adherence to the Act’s Central Pine Barrens Comprehensive Land Use Plan “are restrictions…deemed necessary and desirable to protect the hydrologic and ecological integrity of the region, as well as the public’s health and welfare for future generations,” and prohibited “state approval” or “consent” for “any disturbance of land within such area unless such approval or grant conforms to the provisions of such land use Plan.” ECL §57-0123(3)(a). {00437146-6} 9 9 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 Parties 20. At all pertinent times alleged herein, Petitioner Town of Brookhaven (“Brookhaven” or the “Town”) was and is a duly organized New York municipal corporation with its principal please of business located at 1 Independence Hill, Farmingville, New York 11738. 21. At all pertinent times alleged herein, Respondent, Richard A. Ball was, is, and performed the actions and rendered the AML Order under review in his capacity as the Commissioner of the New York State Department of Agriculture and Markets (“Department”). 22. At all pertinent times alleged herein, defendant Delea Sod Farms, Inc. was and is a duly organized New York corporation with its principal offices located in Suffolk County, New York which owns and operates an approximately 258 acre sod farm located in Miller Place, New York, of which an approximately 10 acre portion is devoted to industrial-scale mulch and compost storage and bulk sale facility activities are at issue. 23. At all pertinent times alleged herein, additional Respondent, Central Pine Barrens Joint Planning & Policy Commission (“Central Pine Barrens Commission”) was and is a New York State Commission comprised of public officers including the County Executive of Suffolk County, the Supervisors of the Towns of Brookhaven, Riverhead and Southampton, and a designee of the Governor of the State of New York created by the Long Island Pine Barrens Preservation Act of 1993 and which by statute possesses the “combined duties of a state agency, a planning board and a park commission” with “joint land use review and regulation, permitting, and enforcement authority along with local municipalities and also oversees the implementation of the land use plan” in the Central Pine Barrens region. {00437146-6} 10 10 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 24. The Central Pine Barrens Commission is joined solely as a necessary and affected party under CPLR 1001(a). See, New York v. Long Island Airports Limousine Serv. Corp., 48 N.Y.2d 469 (1979). Delea Sod’s Violations 25. Delea Sod’s activities violate Brookhaven Town Code5 prohibitions against: (i) Engaging in the processing, storage, and commercial and retail sale and bulk deliveries of mulch, topsoil, logs, wood chips and other organic materials (in excess of 3,000 cubic yards for storage purposes only authorized pursuant to the Town of Brookhaven Farmland Bill of Rights, Town Code §85-925); (ii) Conducting these illegal activities in the Central Pine Barrens Compatible Growth Area as established by ECL §57-0137 and Brookhaven Town Code 85-722, where they are prohibited under ECL §57-0107; (iii) Commercial and industrial activity is prohibited in Residential Districts (Brookhaven Town Code § 85-378), not falling within the Farmland Bill of Rights (Brookhaven Town Code §85-925); (iv) Violating the Conditional Discharge Agreement providing: “defendant to comply with Section 85-925 farmland Bill of Rights sub section C-12 by maintaining a maximum of 3000 cubic yards of organic materials which may be used off site. Nothing herein should be construed to allow a commercial mulching operation or the stock piling and screening of compost for sale to others. Additionally, defendant to cease all other non permitted uses including but not limited to sale of decorative stone, statu[]es, and other non accessory agriculture items.” 5 As indicated, the Brookhaven Town Code is published at https://ecode360.com/33729641. {00437146-6} 11 11 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 The AML Order Unlawfully Attempts to Preempt and Contravene the Long Island Pine Barens Protection Act of 1993 26. Delea Sod is located in the Compatible Growth Area of the Long Island Pine Barrens. The Brookhaven Town Code provisions which the AML Order attempts to preempt are zoning laws enacted pursuant to the express authority of the Long Island Pine Barrens Protection Act of 1993 (1993 N.Y. Laws ch 262, codified as amendments to N.Y. ECL §57-0101, et seq.), and are specifically incorporated into that Act and the Long Island Pine Barrens Commission’s Comprehensive Land Use Plan created pursuant to that Act. As both the Town’s Memorandum of Law before the Department (Ex. H and I), and its accompanying Memorandum of Law demonstrate, the express text of the Long Island Pine Barrens Protection Act of 1993, as well as the fact that it is a New York State “special law,” establish that the Agriculture and Markets Law must yield, and that the Department does not have authority to contravene those local laws incorporated into and implementing the Pine Barrens statute. See N.Y. Env’t Conserv. Law §§ 57-0123(3)(a), § 57-0121(2)(d); Pine Barrens Commission Land Use Plan, including at its Ch. 5, Standards and Guidelines for Land Use, § 5.3.3.10.1 (published at https://pb.state.ny.us/assets/1 /6/Chapter_5_Ministerial_amendments_only_clean_copy.pdf). 27. Because of the express texts of the relevant statutes, and because the Long Island Pine Barrens Protection Act is a “special law,” whereas the relevant Agriculture and Markets Law provisions are “general laws,” the Pine Barrens Act prevails and the Department has no authority to preempt or diminish local laws enacted pursuant to the Act. To the contrary, ECL §57-0123(3)(a) explicitly provides that the Department is prohibited from granting approvals contrary to the Pine Barrens Land Use Plan: “Subsequent to the adoption of the [Pine Barrens] land use plan, the provisions of any other law, ordinance, rule or regulation to the {00437146-6} 12 12 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 contrary notwithstanding, no application for development within the Central Pine Barrens area shall be approved by any municipality or county or agency thereof or the commission, and no state approval, certificate, license, consent, permit, or financial assistance for the construction of any structure or the disturbance of any land within such area shall be granted, unless such approval or grant conforms to the provisions of such land use plan.” (emphasis supplied) The AML Order Rests on False Factual Findings 28. As further shown, the AML Order’s factual findings are not merely arbitrary, capricious and irrational, but are actually false factual findings directly contradicted by the Record before the Commissioner. 29. Further, as just shown in paras. 11 through 18 above, the AML Order’s Finding that the Town presented “no public health or safety documentation or evidence,” wholly ignores what the New York State Legislature already found in the “Legislative Findings and Intent” section of the Long Island Pine Barrens Protection Act in ECL §57-0105, i.e., that the Act’s “restrictions are deemed to be necessary and desirable to protect the hydrologic and ecological integrity of the region, as well as the public’s health and welfare for future generations.” 30. As extensively quoted in the Town’s attached Memorandum of Law, the Act does so by carefully and pervasively regulating “development” activities as its prime means of protecting the environment and the Long Island Sole Source Aquifer. See ECL 57-0121 and 57- 0105. Further, ECL 57-0107, at subdivisions [13] and [14], provide that “development” activity is anything that is not allowed by local zoning, and it contains a definition of non-developmental “agricultural” which is limited to actual on-site agricultural activity. 31. In fact, the Legislative Intent section of the Act (ECL 57–0105) explicitly states that it was passed “to allow the state [through the Pine Barrens Commission and the DEC] and {00437146-6} 13 13 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 local governments to protect, preserve and properly manage the unique natural resources of the Pine Barrens Peconic Bay system.” 32. Moreover, ECL 57-0121(2)(d) provides that with respect to Compatible Growth Areas within the Pine Barrens Protection Area, that the Pine Barrens Commission’s Land Use Plan shall be designed to regulate and “encourage appropriate patterns of compatible residential, commercial, agricultural, and industrial development in order to accommodate regional growth influences in an orderly way while protecting the Pine Barrens environment from the individual and cumulative adverse impacts thereof” (emphasis added). 33. The Commission’s Land Use Plan, as amended, of course incorporates the same definition of “Development” as the ECL, including that it involves any land uses not authorized by local zoning and land use restrictions. See Pine Barrens Commission’s Comprehensive Land Use Plan § 4.3.5 (published at: https://pb.state.ny.us/assets/1/6/CLUP_Vol_1_11-21- 2012wamend.pdf). It further provides, among other things, that “These standards shall be incorporated into local land use and development review procedures, ordinances and laws by the local municipalities” (id. at 5.3.1), that “Projects proposed in the Compatible Growth Area must conform to all other involved agency jurisdictions and permit requirements in effect on the project site” (id.), and “Where standards contained in the Plan differ from state, county, or local requirements, the stricter standard(s) shall apply” (id. at § 5.3.3). Published at https://pb.state.ny .us/assets/1/17/final_draft_version_3-18-2015_ch_5_proposed_amendments_w_Fig_5-2_ strikeout.pdf. 34. Additionally, ECL 57-0136(b) provides that: With respect to any land use conduct within the Central Pine Barrens Area that violates any provision of an applicable village or town law, the responsibility for enforcement of such violation shall lie with the {00437146-6} 14 14 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 applicable village or town in the first instance as provided for in the laws of the respective town or village…. 35. Further, ECL § 57-0123, Implementation of the Central Pine Barrens comprehensive land use plan, provides that the Town of Brookhaven (along with the Towns of Southampton and Riverhead and the Villages of Quogue and Westhampton Beach) are to “implement” the Central Pine Barrens Comprehensive Land Use Plan via local laws. 36. The Brookhaven Town Code (published at https://ecode360.com/33729641) at its Chapter 85, Article XXV, implements these ECL provisions and the Commission’s Comprehensive Land Use Plan. See Brookhaven Town Code § 85-719. 37. Brookhaven Town Code § 85-720, like the ECL, defines “development” as actual compliance with established local zoning and land use requirements, and exactly like the ECL provides that “agriculture” is “nondevelopment” only to the extent it involves on-site agriculture, not materials imported into the site via a large-scale commercial operation as Delea Sod is conducting. 38. Moreover, Brookhaven Town Code § 85-722—like the ECL and the Commission’s Comprehensive Plan which, as shown, protect the Compatible Growth Areas from “piecemeal and scattered development” and encouraging development which is “compact, efficient and orderly” by mandating actual compliance with existing local laws and zoning restrictions—provides that only uses permitted in the underlying zoning district classification are permitted for properties in the Compatible Growth Area, absent a hardship exemption from the Pine Barrens Commission. 39. Thus, as a matter of law and directly contrary to the AML Order, the State Legislatures’ legislative intent, restrictions on all “development” activities, definition of {00437146-6} 15 15 of 28 FILED: ALBANY COUNTY CLERK 01/04/2023 05:16 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/04/2023 development activities as those activities as those defined in the local land use laws, express categorization of off-site agricultural activities as included in development to the full extent it is regulated by local laws, and finding that all of this is to protect the Long Island Aquifer and the Central Pine Barrens region, is the clearest showing and evidence of environmental harm resulting from Delea Sod’s activities. Indeed, the Court of Appeals in Town of North Hempstead v. Exxon Corp., 53 N.Y.2d 747, 749 (1981), went so far as to hold that expressions of legislative intent are so binding on the courts that “[s]o long as there is evidence that the question is at least debatable, the legislative judgment is not irrational” and must be followed. The AML Order Further Authorizes Delea Sod to Evade a Conditional Discharge Order Entered Into By Delea Sod in Prior Code Enforcement Proceedings Against It 40. Further, by operating a commercial mulching and compost facility and engaging in bulk sales of these materials to commercial users distributed via front loaders into dump trucks and other large vehicles,6 Delea Sod is engaging in the precise same illegal conduct to which it previously pleaded guilty on September 14, 2017 in prior Code Enforcement proceedings brought by Brookhaven under a “Conditional Discharge” Order providing as follows: “In addition, it is further ordered as a Condition of Discharge that defendant to comply with Section 85-925 farmland Bill of Rights sub section C-12 by maintaining a maximum of 3000 cubic yards of organic materials which may be used off site. Nothing herein should be construed to allow a commercial mulching operation or the stock piling and screening of compost for sale to others. Additionally, defendant to cease all other non permitted uses including but not limited to sale of decorative stone, and all other non accessory, agriculture items, statutes.” (emphasis supplied) (Ex. D).