Schoharie County

Judge invalidates Schoharie zoning revision in victory for stone company

A judge has ruled Schoharie’s 2005 zoning overhaul is “null and void,” resetting the town’s land-use

A judge has ruled Schoharie’s 2005 zoning overhaul is “null and void,” resetting the town’s land-use regulations to what they were in 1975.

State Supreme Court Justice Eugene P. Devine, in a Feb. 19 decision, ruled the town made mistakes when adopting new land-use provisions and they are therefore invalid.

Pending any appeals, the ruling brings Cobleskill Stone Products closer to its goal of expanding its Schoharie mine. The town’s 2005 zoning change coincided with the mining company’s application to expand mining into 69 acres near the existing 87-acre mine off Rickard Hill Road.

The company filed suit over the changes, but despite last week’s decision, litigation continues, according to an attorney.

Cobleskill Stone Products won an initial decision but it was overturned by the Appellate Division of state Supreme Court, which ruled the company didn’t enjoy a “vested right” to mining its nearby property.

That decision left officials content to rely on the land use code adopted in 2005 — the same set of zoning guidelines deemed unenforceable last week.

In his decision, Devine agreed with Cobleskill Stone Products’ contention that the town didn’t follow the precise steps set forth in state law as it relates to the State Environmental Quality Review Act.

SEQRA requires municipalities to consider the environment and any potential impacts their actions can have on the environment, and to mitigate those impacts.

Devine in the ruling said courts can review a town’s SEQRA determinations — not to make judgments on the decisions but to rather to ensure that they follow the steps spelled out in the law. These include making sure the town takes a “hard look” at areas of environmental concern that could be impacted by their action and makes a “reasoned elaboration” of the reasons for their determination.

The town determined the zoning overhaul was a Type I action — one that could yield a significant impact on the environment and therefore typically requires an Environmental Impact Statement. The purpose of the EIS is to analyze and describe the impacts, identify alternatives, and describe ways to avoid the environmental impacts, according to the state Department of Environmental Conservation.

Schoharie issued a “negative declaration,” meaning the zoning change wouldn’t have major impacts.

The town developed a full EIS form along with the negative declaration, but Devine ruled it was “incomplete” and merely included a “no” in the check boxes under questions of whether the new land use law would have an impact on factors including water resources, air quality, plants and animals and others. During an ongoing review leading up the new land use code’s approval, the town issued a second negative declaration and “provided even less detail,” simply leaving the explanation part of the form completely blank.

The town argued that several years of work leading up to the new land use code’s approval should be considered sufficient, but Devine ruled a review of meeting minutes offered “no insight as to the discussions or deliberations that lead to this conclusion.”

Also spiking the zoning revision is the fact that the code itself allowed several new uses inside a new rural-agricultural district that includes Cobleskill Stone’s mine expansion property. These included airports, townhouses, retail buildings, hotels and motels and others — and the town’s environmental review documents lacked any detailed explanation for the rationale for those changes, Devine wrote.

The town also failed to publish the environmental review documents on the state’s Environmental Notice Bulletin, adding another “meritorious procedural infirmity,” he ruled.

The town, according to Devine’s ruling, expected successful land use since the 2005 changes should “outweigh any procedural deficiencies,” but he said the state’s environmental review regulation doesn’t work that way. “The failure to strictly comply with requirements set forth in SEQRA must result in the law’s annulment,” he wrote in the decision.

Cobleskill Stone Products’ attorney, Rosemary Stack of Syracuse, said the company was hoping to mutually agree on some resolution with the town, but that didn’t happen. “Cobleskill Stone did not want to reach a point where they had to knock out the entire zoning law,” she said.

The company still contends it has vested rights to mine the additional land, and the 2013 decision to the contrary is currently under appeal, Stack said.

Schoharie Town Supervisor Gene Milone said the town is planning to meet in a closed session Friday to discuss the decision and what steps to take next. He said the 1975 zoning now prevails, and what to do next is “a big question mark.”

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