Answer: 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 Answer 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 04:33 PM INDEX NO. 907862-22
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 02/15/2023

SUPREME COURT OF THE STATE OF NEW YORK
ALBANY COUNTY
---------------------------- ---------------x
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

-against-

RICHARD A. BALL, Commissioner of the New York
State Department of Agriculture and Markets, and
DELEA SOD FARMS, INC., Index No. 907862-22

Respondents,

-and-

CENTRAL PINE BARRENS JOINT PLANNING &
POLICY COMMISSION,

Additional Respondent
Joined as a Necessary/
Affected Party Under
CPLR l00l(a)
------------------------------------------- X

VERIFIED ANSWER, OBJECTIONS IN LAW AND
ADMINISTRATIVE RETURN OF
RESPONDENT RICHARD A. BALL

Respondent Richard A. Ball, Commissioner of the New York State

Department of Agriculture and Markets ("Department") for the verified answer to

the Amended Verified Petition ("Amended Petition") of petitioner Town of

Brookhaven ("Town") [Doc. No. 1], alleges as follows. The Department:

1. Neither admits nor denies the allegations of paragraph 1, as they are

the Town's characterization of its own Amended Petition to which no response is

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warranted, except admits that the Department issued an Order dated November 22,

2022 ("Order").

2. Neither admits nor denies the allegations of paragraph 2, as they are

the Town's characterization of its own Amended Petition to which no response is

warranted, except admits that the Department issued a final determination dated

September 14, 2022 ("Final Determination") as well as the Order.

3. Denies the allegations of paragraph 3, except admits that the Order

bars enforcement by the Town of certain zoning code provisions, admits that the

Farm engages in mulch and compost activities, admits that the Farm is located in

the Compatible Growth Area as defined under the Long Island Pine Barrens

Protection Act codified in the Environmental Conservation Law, and respectfully

refers the Court to the Order and the Final Determination as the best evidence of

their contents.

4. Denies the allegations of paragraph 4, except admits that the

Department issued the Order pursuant to Agriculture & Markets Law ("A.M.L.")

sections 305-a and 36 and issued the Final Determination pursuant to A.M.L.

section 305-a, and respectfully refers the Court to the Order and those statutes as

the best evidence of their contents.

5. Denies the allegations of paragraph 5, except admits that the

Department issued the Order and the Final Determination, admits that the Final

Determination contains, among other things, language substantively the same as

the quoted language except for nonsubstantive errors introduced by the Town, and

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respectfully refers the Court to the Order and the Final Determination as the best

evidence of their contents.

6. Denies the allegations of paragraph 6.

7. Neither admits nor denies the allegations of paragraph 7, as the

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the laws cited as the best evidence of their contents.

8. Denies the allegation in paragraph 8 that the Department has taken

any "impermissible" action, and otherwise neither admits nor denies the allegations

of paragraph 8 as those allegations call for a legal conclusion for which no response

is warranted.

9. Admits the first sentence of paragraph 9, except denies knowledge and

information sufficient to form a belief as to the whether the operations of DeLea Sod

Farms, Inc. at its Miller Place location ("Farm") are in all respects lawful. Neither

admits nor denies the allegations of the second sentence of paragraph 9, as they are

the Town's characterization of its own action to which no response is warranted.

10. Neither admits nor denies the allegations of paragraph 10, as the

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the laws cited as the best evidence of their contents.

11. Denies knowledge and information sufficient to form a belief as to

whether the operations of the Farm are in all respects lawful, denies that the

attached photographs accurately characterize the Farm, and otherwise neither

admits nor denies the allegations of paragraph 11, as they either (a) are expressions

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of the Town's opinion to which no response is warranted, not allegations of fact, or

(b) call for a legal conclusion for which no response is warranted, and respectfully

refers the Court to the laws cited as the best evidence of their contents.

12. Neither admits nor denies the allegations of paragraph 12, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the laws cited as the best evidence of their contents.

13. Admits that the language of the long quotation in paragraph 13

accurately reflects language found on the cited web page, admits that the language

of the long citation sets out information regarding the Pine Barrens Act and Central

Pine Barrens Joint Planning and Policy Commission, and otherwise neither admits

nor denies the allegations of paragraph 13, as those allegations call for a legal

conclusion for which no response is warranted, and respectfully refers the Court to

the laws cited as the best evidence of their contents.

14. Neither admits nor denies the allegations of paragraph 14, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

15. Neither admits nor denies the allegations of paragraph 15, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

16. Denies the allegations of paragraph 16.

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17. Neither admits nor denies the allegations of the first sentence of

paragraph 17, as those allegations call for a legal conclusion for which no response

is warranted, and respectfully refers the Court to the cited authorities as the best

evidence of their contents. Neither admits nor denies the allegations of the second

sentence of paragraph 17, as they are expressions of the Town's opinion to which no

response is warranted, not allegations of fact

18. Neither admits nor denies the allegations of paragraph 18 to the

extent those allegations call for a legal conclusion for which no response is

warranted, otherwise denies, and respectfully refers the Court to the cited

authorities as the best evidence of their contents.

19. Neither admits nor denies the allegations of paragraph 19 to the

extent those allegations call for a legal conclusion for which no response is

warranted, otherwise denies, and respectfully refers the Court to the cited

authorities as the best evidence of their contents.

20. Denies knowledge and information sufficient to form a belief as to the

truth of the allegations of paragraph 20, except admits that the Town is a municipal

corporation of the State of New York.

21. Denies the allegations of paragraph 21, except admits that respondent

Richard A. Ball, in his capacity as Commissioner of the Department, issued the

Order and participated in other ways in the administrative proceedings leading to

his issuance of the Order.

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22. Denies knowledge and information sufficient to form a belief as to the

truth of the allegations of paragraph 22, except admits that the Farm operates on

an approximately 258-acres site in Miller Place, New York and approximately 10

acres of that area is used for mulch and compost activities.

23. Admits that the Central Pine Barrens Joint Planning and Policy

Commission is a New York State commission comprised of the identified members,

and otherwise neither admits nor denies the allegations of paragraph 23 to the

extent those allegations call for a legal conclusion for which no response is

warranted, and respectfully refers the Court to the cited authorities as the best

evidence of their contents.

24. Neither admits nor denies the assertions of paragraph 24, as they

either (a) they are the Town's characterization of its own Amended Petition to which

no response is warranted, or (b) call for a legal conclusion for which no response is

warranted, they are the Town's characterization of its own Amended Petition to

which no response is warranted, and respectfully refers the Court to the cited

authorities as the best evidence of their contents.

25. Neither admits nor denies the allegations of paragraph 25, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

26. Admits the allegations of the first sentence of paragraph 26. Neither

admits nor denies the other allegations of paragraph 26, as those allegations call for

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a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

27. Neither admits nor denies the allegations of paragraph 27, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

28. Denies the allegations of paragraph 28.

29. Denies that the allegation in paragraph 29 that the Department

wrongfully ignored relevant information or legal authority, and otherwise neither

admits nor denies the allegations of paragraph 29, as those allegations call for a

legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

30. Neither admits nor denies the allegations of paragraph 30, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

31. Neither admits nor denies the allegations of paragraph 31, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

32. Neither admits nor denies the allegations of paragraph 32, as those

allegations call for a legal conclusion for which no response is warranted, and

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respectfully refers the Court to the cited authorities as the best evidence of their

contents.

33. Neither admits nor denies the allegations of paragraph 33, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

34. Neither admits nor denies the allegations of paragraph 34, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authority as the best evidence of its

contents.

35. Neither admits nor denies the allegations of paragraph 35, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authority as the best evidence of its

contents.

36. Neither admits nor denies the allegations of paragraph 36, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

37. Neither admits nor denies the allegations of paragraph 37, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

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38. Neither admits nor denies the allegations of paragraph 38, as those

allegations call for a legal conclusion for which no response is warranted, and

respectfully refers the Court to the cited authorities as the best evidence of their

contents.

39. Denies that the Town has made any showing of environmental harm

resulting from the Farm's activities, and otherwise neither admits nor denies the

allegations in paragraph 39, as they call for a legal conclusion for which no response

is warranted, and respectfully refers the Court to the cited authorities as the best

evidence of their contents.

40. Denies knowledge and information sufficient to form a belief as to the

truth of the allegations of the first sentence of paragraph 40. Denies the allegations

of the second sentence of paragraph 40.

41. Denies know ledge and information sufficient to form a belief as to the

truth of the allegations in paragraph 41 regarding the Farm's intent, and otherwise

neither admits nor denies the allegations in paragraph 41, as they call for a legal

conclusion for which no response is warranted, and respectfully refers the Court to

the cited authorities as the best evidence of their contents.

42. Denies the allegations of paragraph 42, except admits that the

Department issued an informal opinion under Agriculture and Markets Law section

308(4) dated July 24, 2020 (the "Informal Opinion").

43. Denies the allegation in paragraph 43 that there is a material

inconsistency between the Order or the Final Determination, on the one hand, and

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the Informal Opinion on the other, and otherwise neither admits nor denies the

allegations in paragraph 43, as they call for a legal conclusion for which no response

is warranted, and respectfully refers the Court to the cited documents as the best

evidence of their contents.

44. Denies the allegations of paragraph 44.

45. Denies the allegations of paragraph 45.

46. Denies the allegation in paragraph 46 that the Order or the Final

Determination rest on any flawed bases, and otherwise neither admits nor denies

the allegations in paragraph 46, as they call for a legal conclusion for which no

response is warranted, and respectfully refers the Court to the cited authorities as

the best evidence of their contents.

47. Denies the allegations of paragraph 47, except admits that mulch is

generally not used to install sod, and avers that the Farm's sale of mulch is

incidental to the sale of nursery stock.

48. Denies the allegation in the first sentence of paragraph 48 that any

Department conclusions were irrational, and otherwise neither admits nor denies

the allegations in that sentence, as they call for a legal conclusion for which no

response is warranted, and respectfully refers the Court to the cited authorities as

the best evidence of their contents. Denies the second sentence of paragraph 48,

except admits that the Farm does not produce mulch at its Miller Place location and

mulch is generally not used to install sod, and avers that the Farm's sale of mulch is

incidental to the sale of nursery stock.

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49. Denies the allegation in paragraph 49 that any Department

conclusions were contrary to any law, and otherwise neither admits nor denies the

allegations in that sentence, as they call for a legal conclusion for which no response

is warranted, and respectfully refers the Court to the cited authority as the best

evidence of its contents.

50. Denies the allegation in the last sentence of paragraph 50 that the

Order or Final Determination rested on any improper basis, and otherwise neither

admits nor denies the allegations in that paragraph, as they call for a legal

conclusion for which no response is warranted, and respectfully refers the Court to

the cited authorities as the best evidence of their contents.

51. Denies the allegations of paragraph 51.

52. Neither admits nor denies the allegations in paragraph 52, as they call

for a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

53. Denies the allegations in the first three sentences and footnote 9 of

paragraph 53, except admits that the Farm does not produce mulch at its Miller

Place location and mulch is generally not used to install sod, and respectfully refers

the Court to the Order and Final Determination as the best evidence of their

contents. Denies the allegation in the last sentence of paragraph 53 that the Order

or Final Determination is contrary to any controlling law or policy, and otherwise

neither admits nor denies the allegations in the last sentence of that paragraph, as

they call for a legal conclusion for which no response is warranted.

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54. With regard to paragraph 54, repeats and realleges the responses to

paragraphs 1 through 53 as if fully set forth herein.

55. Neither admits nor denies the allegations in paragraph 55, as they call

for a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

56. Neither admits nor denies the allegations in paragraph 56, as they call

for a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

57. Neither admits nor denies the allegations in paragraph 57, as they call

for a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

58. Neither admits nor denies the allegations in paragraph 58, as they call

for a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

59. Neither admits nor denies the allegations in paragraph 59, as they call

for a legal conclusion for which no response is warranted, except admits that the

Final Determination cited E.C.L. § 57-0133, and respectfully refers the Court to the

cited authorities as the best evidence of their contents.

60. Denies the allegations in paragraph 60.

61. Denies the allegations in paragraph 61.

62. With regard to paragraph 62, repeats and realleges the responses to

paragraphs 1 through 61 as if fully set forth herein.

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63. Denies the allegations in paragraph 63.

64. Denies the allegations in paragraph 64.

65. With regard to paragraph 65, repeats and realleges the responses to

paragraphs 1 through 64 as if fully set forth herein.

66. Denies the allegations in the first sentence of paragraph 66, except

admits that the Farm engages in mulch and compost activities on approximately 10

acres of its more than 250-acre site in Miller Place, New York, and denies

knowledge and information sufficient to form a belief as to the whether the Farm's

operations are in all respects lawful. Neither admits nor denies the allegations in

the second sentence of paragraph 66, as they call for a legal conclusion for which no

response is warranted, and respectfully refers the Court to the cited authorities as

the best evidence of their contents.

67. Neither admits nor denies the allegations in paragraph 67, as they call

for a legal conclusion for which no response is warranted, and respectfully refers the

Court to the cited authorities as the best evidence of their contents.

68. Neither admits nor denies the allegations in paragraph 68, as they call

for a legal conclusion for which no response is warranted, except denies that

Agriculture and Markets Law section 305-a must be interpreted to prohibit the

Farm's mulch and compost activities.

69. Denies the allegations in paragraph 69.

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70. Denies each and every factual allegation of the Amended Petition that

is not otherwise herein admitted or denied, or for which the Department has not

denied knowledge and information sufficient to form a belief.

OBJECTIONS IN POINT OF LAW

1. The Town lacks capacity to sue.

2. The Long Island Pine Barrens Maritime Reserve Act, Envtl. Conserv.

L. §§ 57-0101 through -0213, does not limit or otherwise alter the Department's

authority under sections 305-a and 36 of the Agriculture and Markets Law.

3. The Central Pine Barrens Comprehensive Land Use Plan adopted by

the Central Pine Barrens Joint Planning and Policy Commission does not limit or

otherwise alter the Department's authority under sections 305-a and 36 of the

Agriculture and Markets Law.

4. The laws of the Town of Brookhaven do not limit or otherwise alter the

Department's authority under sections 305-a and 36 the Agriculture and Markets

Law.

5. The Department's issuance of the Order and the Final Determination,

and any other Department findings, conclusions, decisions or actions that are the

subject of this case were not (a) made in violation of lawful procedure, (b) affected by

an error of law, (c) arbitrary and capricious, or (d) an abuse of discretion.

6. The Department's issuance of the Order and the Final Determination,

and any other Department findings, conclusions, decisions or actions that are the

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subject of this case were rational, a proper exercise of the Department's discretion

and fully complied with applicable law.

7. The facts and circumstances do not warrant this Court ordering

invalidation, rescission, vacatur, annulment, reversal, costs and disbursements, or

any other relief against the Department.

ADMINISTRATIVE RETURN AND AFFIRMATIVE
STATEMENT OF THE GROUNDS FOR THE
DEPARTMENT'S ACTIONS
The Department has acted in accordance with all relevant procedures,

policies, laws and regulations applicable to it, and the bases for its actions are

rational, for the reasons set out in the Department's return in this matter, which

includes the documents in the certified Administrative Record (February 14, 2023),

the Affidavit of Kathleen E. Tylutki with exhibit (February 14, 2023), the

Affirmation of Andrew G. Frank with exhibits (February 14, 2023), and the

accompanying Memorandum of Law, all of which are filed herewith and

incorporated herein.

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Dated: New York, New York
February 14, 2023

LETITIA JAMES,
ATTORNEY GENERAL OF THE STATE
OF NEW YORK

By: A+- G _(2_(_
Andrew G. Frank, Esq.
Assistant Attorney General
New York State Attorney General's
Office
28 Liberty Street
New York, NY 10005
Telephone: (212) 416-8271
E-mail: andrew.frank@ag.ny.gov
Counsel for Respondent Richard A. Ball,
Commissioner of the New York State
Department of Agriculture and Markets

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VERIFICATION

STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )

Danielle C. Cordier, being duly sworn, deposes and says:

I am an Associate Attorney at the New York State Department of Agriculture

and Markets (the "Department"), and was involved in the Department's issuance of

the November 22, 2022 Order, the September 14, 2022 Final Determination and the

administrative proceedings leading to those issuances. I have reviewed the annexed

Verified Answer, Objections in Point of Law and Administrative Return and know

the contents thereof. The Verified Answer, Objections in Point of Law and

Administrative Return are true to my knowledge, except as to matters stated to be

alleged upon information and belief, and as to those matters, I believe them to be

true. The sources of my knowledge, information and belief are the records kept in

the Department's files, my personal knowledge, and discussions with Department

staff.

...
Danielle C. Cordier

Swo n to before me this
{ y, 2023

NICOLE PERSAUD
Notary Public, State of New York
Reg.No.01 PE6248087
NO Qual!tied in Kings County 3
/I
Commission Expires September 12, 20© _

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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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Answer: 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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