Motion-Secondary: Town Of Brookhaven v. Richard A. Ball COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS, Delea Sod Farms, Inc., Central Pine Barrens Joint Planning & Policy Commission Additional Respondent Joined as Necessary/Affected Party under CPLR 1001(a)

On October 13, 2022 a Motion-Secondary was filed involving a dispute between Town Of Brookhaven, and Central Pine Barrens Joint Planning & Policy Commission Additional Respondent Joined As Necessary Affected Party Under Cplr 1001, Delea Sod Farms, Inc., Richard A. Ball Commissioner Of The New York State Department Of Agriculture & Markets, for Special Proceedings - CPLR Article 78 in the District Court of Albany County.

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FILED: ALBANY COUNTY CLERK 02/15/2023 04:13 PM INDEX NO. 907862-22
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 02/15/2023

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, :
:
Petitioner, :
:
For an Order Pursuant to Article 78 of the Civil Practice Law :
and Rules and Agriculture and Markets Law §37 : Index No.: 907862-22
:
-against- : Assigned Justice: Pending
:
RICHARD A. BALL, COMMISSIONER OF THE NEW :
YORK STATE DEPARTMENT OF AGRICULTURE & :
MARKETS, and DELEA SOD FARMS, INC., :
:
Respondents. :
:
-and- :
:
CENTRAL PINE BARRENS JOINT PLANNING & :
POLICY COMMISSION, :
:
Additional Respondent, :
:
Joined as Necessary/Affect Party under CPLR 1001(a). :
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RESPONDENT DELEA SOD FARMS, INC.’S
MEMORANDUM OF LAW
IN OPPOSITION TO THE PETITION

FARRELL FRITZ, P.C.
Attorneys for Petitioner
100 Motor Parkway, Suite 300
Hauppauge, NY 11788
(631) 547-8400
Of Counsel:
John C. Armentano
Philip A. Butler

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TABLE OF CONTENTS

Page #

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 8

A. Background on Delea Sod Farm ................................................................................... 8
B. Delea’s Mulch and Compost Practices ....................................................................... 10
C. The Underlying Proceeding Pursuant to AML § 305-a .............................................. 11

SCOPE OF REVIEW ................................................................................................................... 13

ARGUMENT ................................................................................................................................ 14

POINT I ........................................................................................................................................ 14

THE TOWN’S CLAIM THAT THE PINE BARRENS ACT ALLOWS
THE TOWN ZONING CODE TO SUPERSEDE THE DEPARTMENT’S
AUTHORITY PURSUANT TO AML ARTICLE 25-AA IS BLATANTLY
UNFOUNDED AND IGNORES THE LEGISLATURE’S CLEAR
INTENT WHEN IT GRANTED THE DEPARTMENT AUTHORITY
TO OVERRIDE LOCAL ZONING THROUGH THE AML .......................................... 14

A. The Town’s Preemption Theory Lacks Foundation ................................................... 16
B. The Pine Barrens Act is Not a Special Law ................................................................ 20
C. The Town’s Assertion That Mulch and Compost Violate the Pine
Barrens Act Is the Town’s Attempt to Transform Its Zoning Code into
State Legislation.......................................................................................................... 21

POINT II ....................................................................................................................................... 22

THE TOWN FAILS TO MEET ITS BURDEN OF PROOF
UNDER ARTICLE 78 ...................................................................................................... 22

POINT III ...................................................................................................................................... 24

THE COMMISSIONER'S CONSTRUCTION OF THE AML
REGARDING THE USE OF MULCH AND COMPOST IS
ENTITLED TO DEFERENCE ......................................................................................... 24

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POINT IV...................................................................................................................................... 26

THE ARGUMENTS INTERPOSED BY THE CENTRAL PINE
BARRENS JOINT PLANNING AND POLICY COMMISSION
ARE IRRATIONAL, UNTETHERED TO THE FACTS, AND NOT
DISPOSITIVE OF THE QUESTIONS OF LAW AT ISSUE.......................................... 26

CONCLUSION ............................................................................................................................. 28

CERTIFICATION PURSUANT TO 22 NYCRR 202.8-B .......................................................... 29

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TABLE OF AUTHORITIES

Page(s)

Cases

Matter of Able Health Servs. Inc.,
67 NYS3d 755 [Sup Ct Albany County 2017] ......................................................................... 22

Cnty. of Albany v Hudson River-Black River Regulating Dist.,
97 AD3d 61 [3d Dept 2012] ..................................................................................................... 24

D.S. v Hogan,
874 NYS2d 711 [Sup Ct New York County 2008] .................................................................. 22

Matter of Eastern Milk Producers Coop. Assn. v State Dept. of Agric. & Mkts.,
58 NY2d 1097 [1983] ......................................................................................................... 24, 25

Matter of Howard v Wyman,
28 NY2d 434 [1971] ................................................................................................................. 24

Lewis Family Farm, Inc. v New York State Adirondack Park Agency,
64 AD3d 1009 [3d Dept 2009] ......................................................................................... passim

Town of Lysander v Hafner,
96 NY2d 558 [2001] ................................................................................................................. 17

Trump-Equitable Fifth Ave. Co. v Gliedman,
57 NY2d 588 [1982] ................................................................................................................. 13

Statutes

Agricultural Markets Law Article 25-AA ............................................................................. passim

Agricultural Markets Law § 300 ............................................................................................. 15, 26

Agricultural Markets Law § 301 (11) ............................................................................................24

Agricultural Markets Law § 303....................................................................................................21

Agricultural Markets Law § 305-a ......................................................................................... passim

Environmental Conservation Law § 57-0103 ............................................................................... 15

Environmental Conservation Law § 57-0105 ............................................................................... 15

iii

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Environmental Conservation Law § 51-0107 [10] ...................................................................... 20

Environmental Conservation Law § 57-0107 [13] [v] .................................................................. 15

Environmental Conservation Law § 57-0107 [14] ....................................................................... 16

Executive Law § 802 [8] ............................................................................................................... 18

N.Y. Const. Art IX, § 3 ................................................................................................................. 20

NY Const. Art XIV, § 4 .......................................................................................................... 15, 19

Rules

CPLR § 7803[3] ............................................................................................................................ 13

Town Code § 85-925 [2016] ......................................................................................................... 21

Town Code § 85-925 [A] [1] [2016]) ............................................................................................. 2

Town Code § 85-925 [A] [2], [3]) ................................................................................................ 19

Town Code § Town Law § 283-a ................................................................................................. 15

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PRELIMINARY STATEMENT

Respondent Delea Sod Farms, Inc. (“Delea”), by and through its undersigned attorneys,

submits the within Memorandum of Law in opposition to the Verified Petition (“Petition”) of the

Petitioner Town of Brookhaven (the “Town”), which seeks to overturn a Final Determination of

the New York State Department of Agriculture & Markets (the “Department”), dated September

14, 2022, and resulting Order, dated November 22, 2022, finding that the Town’s application of

its zoning laws unreasonably restricts Delea’s protected farming operations in violation of Article

25-AA of the New York State Agriculture and Markets Law (“AML”). For the reasons set forth

herein, the Town’s Petition should be denied, and this proceeding should be dismissed entirely.

The AML has comprehensively regulated farming activities in the State of New York since

1992. Pursuant to Article 25-AA of the AML, farming operations admitted into state-certified

agricultural districts are granted special protections by the State. In furtherance of that charge, the

Department issues Orders pursuant to its authority under AML §305-a to protect farm operations

from unreasonably restrictive local laws, like those which the Town of Brookhaven seeks to

enforce against Delea. The Department issues protective Orders on a case-by-case basis only after

conducting a thorough investigation and review, and after collaborating with the municipality to

develop mutually acceptable modifications to their laws.

Indisputably, Article 25-AA empowers the Department to supersede local zoning

regulations that might otherwise impair or prohibit protected farming operations on lands admitted

into state-certified agricultural districts, like Suffolk County Agricultural District No. 3 (“Ag.

District No. 3”) in which Delea’s sod farm is located, unless the local restrictions or regulations

bear a direct relationship to a substantiated public health or safety issue. Despite at least two

written requests from the Department, at no time in the underlying AML §305-a review did the

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Town submit information demonstrating a threat to public health or safety in connection with

Delea’s farming activities.

Ironically, the Town Code acknowledges the inherent value and need for agricultural uses

within the Town where it states “that the conservation of prime agricultural lands within the Town,

used for bona fide agricultural production, is of vital importance to the Town's character,

environment and economy, as preserving an historically important industry which provides fresh

food and horticultural products to local and regional markets; by enhancement of the quality of

life of the Town's residents; and by providing a measure of protection from intensification of

development (Town Code § 85-925 [A][1] [2016]). Yet, notwithstanding this recognition, the

Town now attempts to use local legislation (its zoning code) to force Delea to modify its farming

practices to Delea’s detriment and for the Town’s own objectives. The Town’s goal is in fact the

opposite of the State’s pro-farming policy.

In bringing this proceeding, the Town advances a fictitious and wholly invented theory of

law that is directly contrary to the express legislative intent behind AML Article 25-AA. The

Town’s primary argument in this proceeding alleges that the Long Island Pine Barrens Protection

Act of 1993 (the “Pine Barrens Act”, or the “Act”) somehow elevates the Town’s local zoning

code to supersede the Department’s authority under AML Article 25-AA. Thus, according to the

Town, the Department “lacks jurisdiction” to issue determinations pursuant to AML §305-a with

respect to agricultural uses located within the Town and in the Long Island Central Pine Barrens

region (the “Pine Barrens”). This theory—which emerged only after the Department made clear

that it disagreed with the Town’s application of its zoning laws against Delea—is completely

unsupported by any legislative or judicial authority whatsoever, and it rests solely upon the Town’s

own legal argument and its misapplication of the doctrine governing conflicts between “general”

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and “special” state laws. The Town has concocted a construction that contravenes the legal

authority of the Department and undermines the State’s policy mandating the protection and

encouragement of agriculture.

In fact, the legal theory the Town advances was already reviewed and rejected by the

Appellate Division in Lewis Family Farm, Inc. v New York State Adirondack Park Agency, 64

AD3d 1009 (3d Dept 2009). There, the question was raised whether the Adirondack State Park

Agency’s (“APA”) application of the Adirondack Park Agency Act (the “APA Act”) and Wild,

Scenic and Recreational Rivers System Act (the “Rivers Act”)—both State statutes—could be

applied to prevent a farming operation in a state-certified agricultural district from constructing

farmworker housing units on its property. Applying the statutes, the APA determined that the

single-family dwellings constructed on the farm were not exempt from the APA Act or the Rivers

Act. The courts disagreed based upon their own independent reading of the statutory language and

the overarching “pro-farming policy” of the State, which the courts found to apply with equal force

and effect inside the Adirondack State Park as anywhere else in the State of New York. The courts

overturned the APA’s determination and ruled that the farmworker housing units were not subject

to regulatory requirements of either the APA Act or the Rivers Act.

The parallel between Lewis and this case is clear. In effect, the Town claims that because

it is allegedly charged with enforcing the Pine Barrens Act, its interpretation and application of

that statute through its local zoning code supersedes the Department’s authority under the AML.

The Lewis decision rejects the Town’s theory completely, and is controlling precedent that resolves

the question of law presented to this Court in Delea’s favor. The Town’s theory that the Pine

Barrens Act and Town Code preempt the Department’s authority under the AML is simply a

variation of the theory the APA advanced in Lewis, and it should be rejected on the same grounds.

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If the Department had based its Final Determination and Order upon the objections of the

Town and neighbors concerning things like alleged odors, noises, truck use, and hours of

operations, it would have had to ignore the applicable review standards under the AML and,

instead, base its decision on whether Delea’s farm is compatible with the surrounding residential

uses created pursuant to the Town’s zoning code. Thus, the Town’s position would have had the

Department place the desires of the Town and Delea’s neighbors above the legitimate agricultural

practices and needs of the farmer in direct contravention of the protections specifically intended

for farming operations pursuant to AML Article 25-AA.

The long-standing controversy at issue here arises from the Town’s unfounded allegations

that Delea is operating an unlawful “industrial-scale mulch and compost storage and bulk sale

facility” or “commercial mulching operation” at its sod farm located at 696 Route 25A in Miller

Place, Town of Brookhaven, New York. However, as the Department aptly observed during its

investigation in the underlying proceeding pursuant to Section 305-a of the AML, there was (and

still is) no evidence of an “industrial-scale” mulch or compost operation on Delea’s farm. Rather,

all activities conducted on the farm are either sod production, or the production and/or sale of

incidental farm products that support the sale and marketing of Delea’s sod crops. The Department

specifically and correctly found that Delea’s on-site production, use, and sale of compost, and its

purchase, use, and resale of mulch are legitimate components of Delea’s long-standing farming

operations. Consequently, the Department determined that, because Delea’s farm is part of a state-

certified agricultural district (Suffolk County Agricultural District No. 3), the AML legally

preempts the Town from applying its zoning code in a manner that would restrict or prohibit Delea

from continuing its farming operations. In response, the Town failed, repeatedly, to offer the

Department any health and safety reason that the statutory protections of Article 25-AA of the

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AML should not be extended to Delea’s entire farming operation, including its use of mulch and

compost.

In seeking redress from this Court, the Town’s papers continue to lack any support for the

Town’s allegations of an illegal mulch and compost operation, or the existence of a threat to public

health and safety. Thus, there was and still is no basis to overturn the Department’s Final

Determination and Order. Accordingly, the deference granted to the Department by law in

rendering its Final Determination and Order should be upheld.

Following the Department’s initial findings in Delea’s favor on November 11, 2021, the

Town pivoted its strategy to include its new legal argument that the Pine Barrens Act effectively

divests the Department of authority to render determinations pursuant to AML §305-a for

agricultural uses located within the Pine Barrens region. In sum, the Town claimed, as it does here,

that its local zoning code is an extension of the Pine Barrens Act, which is a “special law” of the

State that overrides the “general law” contained in AML Article 25-AA. Thus, according to the

Town, the Department cannot render a decision affecting an agricultural use in the Town that does

not agree with the Town’s interpretation of its own zoning code. The Town thereby concluded that

because Delea’s farm operation allegedly includes mulch and compost in quantities that exceed

the limits in the Town Code, Delea is violating the Town Code, and by extension, the Pine Barrens

Act. It cannot be understated, the Town’s theory is completely at odds with the express legislative

purpose and intent behind Article 25-AA of the AML, and that it, unsurprisingly, finds no support

in the Pine Barrens Act or in any authority other than the Town’s own legal argument. Moreover,

the Town’s unsupported legal theory fails for several reasons.

At the outset, the Pine Barrens Act is not a special law of the State because it is not written

to apply to one or more counties, cities, towns or villages. Rather, the Act applies to an ecological

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region of Long Island that is defined and described in the Act itself. Moreover, there is no express

or implied authority in the Act or elsewhere establishing the Pine Barrens Act as a “special law”,

or granting it preemptive effect over the application of other State laws, like the AML. Again, the

Town cites no authority to the contrary.

The entirety of the Town’s legal theory rests upon exhaustive citations to policy provisions

supporting the enactment of the Pine Barrens Act, and the Town’s opinion that the Act should be

elevate above other State laws that also apply to lands within the Pine Barrens region. The sheer

volume of citations contained in the Town’s papers, from which the Town strings together its

preemption theory, is proof in itself that the Legislature did not intend what the Town espouses to

this Court. If the Legislature intended the Pine Barrens Act to preempt other State laws, like the

AML, it would have said so explicitly in the Act, or at the very least, in the Bill Jacket. It would

not have left it to the courts or litigants to divine the Legislature’s intent by cobbling together

various policy statements subject to selective interpretation, as the Town attempts to do here.

Even if the Court were to accept the Town’s proposition that the Pine Barrens Act is a

“special law” with preemptive effect over other State laws, it would still have to take the additional

step and agree that the Town’s zoning code stands on equal footing with the Pine Barrens Act such

that the Town’s application of its local zoning code supersedes the Department’s application of

the AML. In other words, the Town advocates for the precise opposite of Legislature’s express

intent when it enacted AML Article 25-AA, which was to grant the Department the power to

override local zoning regulation to protect and encourage agricultural uses in the State.

Ultimately, the Town’s claim boils down to the assertion that the State and the Department

cannot contravene the Town’s zoning code because the Town code purports to enforce the Pine

Barrens Act. However, that is precisely the stated purpose of Article 25-AA of the AML and the

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purpose of AML §305-a review. If the State Legislature’s intent was to make a special exception

for the Pine Barrens Act and the Pine Barrens region, it would have stated exactly that in one of

the many subsequent amendments to the AML, the ECL, and the Town Law, which it has not

done. If it had, the chain of legal theories strung out in the Town’s papers would not be needed.

To start, the Legislature would almost certainly have eliminated the explicit exclusion of

agricultural and horticultural activities from the definition of “development” in the Pine Barrens

Act so that the Act could regulate those activities within the Pine Barrens. Again, it has not.

If in fact, the Pine Barrens Act is a “special law” because it applies only to lands within the

Pine Barrens region, then Article 25-AA of the AML, too, is a “special law” of the State based on

that same logic. Contrary to the Town’s assertion, Article 25-AA of the AML does not apply to all

land within the State of New York. It does not even apply to all agricultural land in the State.

Rather, AML Article 25-AA applies only to land put to an agricultural use and located within a

County-approved, state-certified agricultural district. Moreover, an agricultural use will only be

included in an agricultural district and receive the protections of AML Article 25-AA if a petition

to include it in a new or existing agricultural district is first granted by the local county and certified

by the Department. Thus, the application of AML Article 25-AA is limited to agricultural lands

within a state-certified agricultural district the same way that the Pine Barrens Act applies only to

lands within the described boundaries of the Pine Barrens region. Thus, applying the Town’s own

logic, the Pine Barrens Act and AML Article 25-AA are both special laws of the State, and neither

can preempt or supersede the other. Either way, the Town’s preemption theory holds no merit.

Setting the Town’s flawed preemption theory aside, the Town’s remaining Article 78 claim

continues to suffer from the same evidentiary and legal deficiencies as the Town’s opposition in

the underlying administrative proceeding before the Department. The record before the Court

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demonstrates that the Department reached its Final Determination and Order following a lengthy

and robust fact-finding investigation, in which both the Town and Delea participated, and based

upon careful review of the applicable laws and guidelines, including the Town Code. The Town

simply disagrees with the result, and begs this Court to substitute its judgment for the Department.

For all these reasons, as more fully argued below, the Court should issue a decision and

order denying the Petition, dismissing this proceeding, and granting Delea such other and further

relief as the Court deems just and proper.

STATEMENT OF FACTS

A. Background on Delea Sod Farm

Respondent Delea owns and operates a sod farm on approximately 258 acres located at

696 Route 25A in Miller Place, New York (the “Farm”). (R381 [Delea Aff.] ¶ 1).1 The Delea

family has cultivated the Farm for sod production continuously since at least 1961. (R384 [Delea

Aff.] ¶ 24). On average, the Farm produces Ten Million (10,000,000) square feet of sod annually

grown on approximately 250 acres. (id. at ¶ 26). The remainder of the Farm consists of Delea’s

mechanic garage, where farming equipment is stored and serviced; a small garden center, with

accompanying greenhouses and kiosks; and a sale yard. It is this portion of the Farm where Delea

stores its mulch, compost, dirt, wood, and other materials. (id. at ¶ 27).

Delea has stockpiled soil, compost, logs and mulch on the Farm for decades because they

materials are necessary and incidental for on-farm production, preparation and marketing of its

nursery stock (i.e. sod). (R384-85 [Delea Aff.] ¶¶ 27-43). For example, the soil is routinely used

to correct and level out “washouts” that occur on the Farm after heavy rains, which cause storm

water to erode large areas of the sod fields. (R384 [Delea Aff.] ¶ 33]). In addition, soil and mulch

1
“R____” is a reference to the five-volume Administrative Record produced by the Attorney General of
the State of New York in this proceeding.

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are often sold with large commercial purchases as part of the sod installations in office parks and

campuses. (R385 [Delea Aff.] ¶¶ 38-39). Customers who purchase sod from Delea very often seek

to purchase mulch as well. (id.).

Notably, Delea does not manufacture, produce, or process mulch on its farm. (R386 [Delea

Aff.] ¶ 47). All mulch is imported. (id. at ¶ 48).

Delea also stores windrows of leaves and other organic material to convert into compost

and augment the soil for both sod and vegetables grown on the Farm (R386 [Delea Aff.] ¶ 53;

R595 [Beyrodt Aff.] ¶ 18). Logs imported to the Farm are used on the Farm’s perimeter, at road

ends, and common property boundaries to deter trespassers on dirt bikes and all-terrain vehicles

(ATVs) that can ruin the sod. (R385 [Delea Aff.] ¶¶ 35-36).

In March, 2020, at the start of the Covid-19 pandemic, the Town commenced a local

enforcement action against the Delea family in an attempt to financially impact the Farm. (R387

[Delea Aff.] ¶ 58). Delea believes the enforcement action, and the Town’s larger campaign against

the Farm, is based on the complaint of one discontented neighbor who complains of sounds and

odors emanating from the Farm during certain times of the year. (id. at ¶ 62). This individual lives

in a residential development next to the Farm, but that was constructed long after the Farm began.

(R387 [Delea Aff.] ¶¶ 62-63).

In response to the Town’s aggressions, Delea petitioned the County and State for admission

into Suffolk County Agricultural District No. 3 (“Ag. District No. 3”) pursuant to Article 25-AA

of the AML. On September 22, 2020, the Department certified the Farm as part of Ag. District No.

3, which it confirmed by letter dated October 6, 2020. (R890).

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B. Delea’s Mulch and Compost Practices

Contrary to the Town’s claims, Delea does not operate, and has never operated a

“industrial-scale” mulch operation at the Farm. All mulch is imported to the Farm. (R386 [Delea

Aff.] ¶ 48). Likewise, mulch, topsoil and other farm products have always been sold at the Farm.

(R386 [Delea Aff.] ¶ 48). Mulch, in particular, is sold strictly as a logical accompaniment to the

sale of Delea’s sod crops. (R385 [Delea Aff.] ¶¶ 41-42). In any case, the amount of mulch Delea

sells is nowhere near the scale of Delea’s sod sales. Delea produces and sells approximately

10,000,000 square feet of sod annually from the Farm. R595 [Beyrodt Aff.] ¶ 15). It sells less than

15,000 cubic yards of mulch during that same period. (id.). Moreover, Delea does not keep all of

the mulch it sells in a year at the Farm. Instead, it actively manages its piles to comply with the

Town’s cap of 3,000 cubic yards, and mulch is trucked to the Farm on an as-needed basis. (R389

[Delea Aff.] ¶¶ 50, 81).

In fact, if we were to exceed the 3,000 cubic yards of stored material at the Farm, Delea

would be required to maintain a New York State Materials Management Permit, commonly

referred to as a “Part 360 Permit” administered by the New York State Department of

Environmental Conservation (“DEC”). (R386 [Delea Aff.] ¶ 51). The DEC routinely inspects the

Farm for storage and use of pesticides and herbicides associated with sod farming while the

stockpiles of soil, mulch and compost are on site. (id. at ¶ 52). Notably, the DEC has never required

Delea to secure a Part 360 Permit for the Farm. (id.).

DeLea also does not “stockpile” compost on its property. All compost imported to the Farm

is actively used during routine farming operations to amend and restore the soil for crop (sod)

production. (R386 [Delea Aff.] ¶ 48).

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C. The Underlying Proceeding Pursuant to AML § 305-a

In response to ongoing pressure from the Town, Delea petitioned the Department on

January 6, 2021, seeking a formal review of the Town’s zoning code and its enforcement actions

against Delea pursuant to Section 305-a of the AML. (R882-912). The Town issued a letter to the

Department, dated February 5, 2021, opposing Delea’s request. (R842-879). From that point on,

the ordinarily straightforward administrative process pursuant to AML §305-a was transformed

into a mini-litigation, with the Town attempting to bury both the Department and Delea is

successive rounds of legal briefs and “evidence”.

Delea responded to the Town’s initial opposition letter on February 10, 2021, requesting

time to respond to the Town’s various legal arguments. (R770). In response, the Town interjected

further legal argument in a letter dated February 11, 2021. (R765-767).

On February 18, 2021, the Department issued an instructional letter setting forth the

standard framework for AML §305-a review, and directing that any further statements from the

Town be submitted no later than 30 days after the Town’s receipt of the letter. (R759-760). The

Town submitted further argument on April 22, 2021. (R598-606). Delea submitted its response on

May 7, 2021. (R579-595). In response to a direct request from the Department, Delea provided

additional information regarding the Farm’s operations by letter, dated June 4, 2021. (R377-424).

On June 9, 2021, the Department issued a letter updating the parties on the status of its

review. (R241-242) The Department expressly directed the Town to submit any evidence in its

possession indicating “public health or safety threat relating to the farm operation’s activities”.

(id.). Seizing upon the opportunity, the Town responded by submitting an unauthorized

“supplement” to the record containing papers the Town filed previously in an active civil litigation

against Delea. (R255-286). Notably, the Town provided no response to the Department’s request

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for evidence of a threat to public health and safety.

On November 19, 2021, the Department issued its initial findings determining that “Delea

Sod Farm is a farm operation for purposes of AML §305-a and the Town’s enforcement

proceeding, which alleges that Delea is operating a commercial mulch facility, and its restriction

on Delea’s sale of mulch, topsoil, fertilizer and other products utilized in the installation of sod,

unreasonably restricts Delea in possible violation of AML §305-a.” (R217-222). In addition to the

numerous submissions of the parties, the Department also conducted a site inspection of Delea’s

Farm on March 30, 2021, the details of which were set forth in the Department’s initial findings,

dated September 14, 2022. (see R47; and R720-749 [field inspection notes]). At the conclusion of

its lengthy analysis of its facts, findings, and guidelines, the Department invited the Town, again,

to offer evidence of any potential threat to public health and safety that might justify denying

Delea’s Farm operations protection under AML §305-a. (R48-49). Instead, on January 28, 2022,

the Town submitted a full-blown legal memorandum in which it made many of the same

allegations and argument already rejected by the Department. (R170-201). However, the Town

added a new claim—which it advances now in this proceeding—that the Pine Barrens Act, as

enforced through the Town Code, preempts the Department’s authority pursuant to Article 25-AA

of the AML. (id.).

On March 11, 2022, Delea submitted its reply to the Town’s legal memorandum. (R123-

162). On March 17, 2022, without any invitation, the Town submitted yet another legal

memorandum in which it claimed exclusive jurisdiction over the regulation of Delea’s farming

operations. (R91-119). Delea responded further on April 5, 2022. (R55-81).

On September 14, 2022, the Department issued its Final Determination in which it rejected

the Town’s legal preemption claim and adhered to its initial findings of November 11, 2021. (R45-

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49). The Department followed with a written Order, dated November 22, 2022, in which it directed

the Town to refrain from enforcing its zoning code in a manner that will unreasonably restrict

Delea’s protected farming operations, including Delea’s use of compost and mulch. (R1-8). This

proceeding followed.

SCOPE OF REVIEW

Judicial review of the determination of an administrative agency under CPLR Article 78 is

limited to whether the challenged decision “was made in violation of lawful procedure, was

affected by an error of law or was arbitrary and capricious or an abuse of discretion”

(CPLR § 7803[3]). Such review is further restricted “solely to the grounds invoked by the agency,

and if those grounds are insufficient or improper, the court is powerless to sanction the

determination by substituting what it deems a more appropriate or proper basis” (Trump-Equitable

Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593 [1982]). Here, the Town presents no basis for this

Court to reverse the Department’s decision-making process, which as set forth above, came about

following a lengthy and robust fact-finding investigation. Instead, the Town seeks to persuade this

Court that the Department should have adopted the Town’s position over Delea’s.

The rest of the Town’s s Article 78 claim based upon legal preemption rests upon the

interpretation of certain statutory provisions in the AML and the Pine Barrens Act. It involves only

questions of law for determination by this Court. (see Lewis Family Farm, Inc., supra).

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ARGUMENT

POINT I

THE TOWN’S CLAIM THAT THE PINE BARRENS ACT ALLOWS THE TOWN
ZONING CODE TO SUPERSEDE THE DEPARTMENT’S AUTHORITY PURSUANT
TO AML ARTICLE 25-AA IS BLATANTLY UNFOUNDED AND IGNORES THE
LEGISLATURE’S CLEAR INTENT WHEN IT GRANTED THE DEPARTMENT
AUTHORITY TO OVERRIDE LOCAL ZONING THROUGH THE AML

Having failed to convince the Department of the existence of an “industrial-scale” (non-

agricultural) mulch and compost operation at Delea’s Farm, the Town now turns its ire on the

Department alleging that it lacked jurisdiction from the start to render any AML §305-a

determination with respect to Delea’s Farm, and that the Final Determination and Order were,

therefore, “ultra vires”. In effect, the Town unilaterally proclaims that the mantle of a perceived

superior law, the Pine Barrens Act, cloaks the Town with superior authority to the Department

with respect to determining what does and does not constitute a farming operation within the Pine

Barrens region. However, there is nothing in the Pine Barrens Act granting the Town, or any other

municipality, such authority, and a statue must be given effect as written, not as the Town may

think it should have been written.

The Town’s theory posits that the Pine Barrens Act is a “special law” of the State, which

supersedes the “general law” contained in Article 25-AA of the AML. Furthermore, because the

Case Info

Case No.

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Document Filed Date

February 15, 2023

Case Filing Date

October 13, 2022

County

Parties

ARMENTANO, JOHN C. Attorney for the Defendant
BUTLER, PHILIP ARTHUR Attorney for the Defendant
CALICA, ROBERT MARVIN Attorney for the Plaintiff
CENTRAL PINE BARRENS JOINT PLANNING & POLICY COMMISSION Additional Respondent Joined as Necessary/Affected Party under CPLR 1001(a) Defendant
DELEA SOD FARMS, INC. Defendant
FRANK, ANDREW GERARD Attorney for the Defendant
HOPKINS, TIMOTHY JAMES Attorney for the Defendant
MORGAN, ELIZABETH Attorney for the Defendant
Richard A. Ball COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS Defendant
SERFATY, JUDAH Attorney for the Plaintiff
TOWN OF BROOKHAVEN Plaintiff
DANIELLE CORDIER Attorney
ANNETTE EADERESTO Attorney
JOHN MILAZZO Attorney
ROBERT GAFFNEY Attorney
EMILY PINES Attorney
BARBARA WIPLUSH Attorney
DOUGLAS PENNY Attorney
LINDA RILEY Attorney
FRED THIELE Attorney
KEVIN MCDONALD Attorney
KIM DARROW Attorney
JAMES TRIPP Attorney
JAMES SHERRY Attorney
JOHN MERINGOLO Attorney
ERIC RUSSO Attorney
GLADYS GENTILE Attorney
WAYNE BRUYN Attorney
PATRICIA MOORE Attorney
PHILIP SANDERMAN Attorney
JENNY KWON Attorney
JAMES RIGANO Attorney
Michael Schmidt Attorney
ALLAN GRECCO Attorney
MITCHELL PALLY Attorney
ROBERT CHALIK Attorney
JOHN CASSILLO Attorneys for Defendants
JESSICA LYNCH Attorney
JAMES MCGUIRE Attorney
JOSHUA TOAS Attorney

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Motion-Secondary: Town Of Brookhaven v. Richard A. Ball COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF AGRICULTURE & MARKETS, Delea Sod Farms, Inc., Central Pine Barrens Joint Planning & Policy Commission Additional Respondent Joined as Necessary/Affected Party under CPLR 1001(a)

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