This is an Article 78 action seeking a judgment: 1) Annulling respondent Waterloo Town Board's ("Town" or "Town Board") July 28, 2014 resolution and decision granting respondent Seneca Meadows Inc.'s (SMI) mining permit issued pursuant to Chapter 80 of the Town of Waterloo Laws; 2) Annulling respondent Town of Waterloo Planning Board's (Planning Board) August 26, 2014 resolution and decision granting a special use permit [permitting a clay mine in an agricultural zone (Chapter 135, Schedule I, para. 58 of Waterloo Town Zoning Ordinance)] and approving SMI's site plan (Chapter 79 of Town of Waterloo Laws); 3) Directing the Town and Planning Boards to deny respondent SMI's application for a clay mine; 4) Issuing a permanent injunction enjoining the Town and Planning Boards from approving a new application [*2]from SMI unless the application complies with Chapters 79, 80 and 135 of the Town of Waterloo Laws, and there has been a zoning change by the Town or a use variance issued by the Town's Zoning Board of Appeals (ZBA); or, in the alternative directing respondents to adopt a Property Value Protection Plan (PVPP) that compensates nearby landowners for loss of use, occupancy and quiet enjoyment of their residential properties; and 5) Granting other and further relief as the court may deem just, equitable and proper, including legal fees, costs and disbursements of this proceeding.

In their amended petition (herein after referred to as petition ) the petitioners assert five causes of action, claiming that the Town and Planning Boards acted in an arbitrary and capricious manner by 1) Failing to comply with the August 16, 2005 Community Benefits Agreement (CBA) between the Town and SMI by failing to prohibit mining activities within 1000 feet of other properties as established by Chapter 80 §80-7(B) of the Town of Waterloo Laws; 2) Failing to comply with the Waterloo Town Zoning Ordinance (Chapter 135) by permitting the clay mine's access road to cross a R-1 low density residential zone; 3) Failing to comply with the July 18, 2013 Department of Environmental Conservation (DEC) Mining Permit MHR No. 80837 (DEC permit) by moving the access road from the location shown in the DEC permit to a different location as shown in Exhibit 3 to the Town's July 28, 2014 decision; 4) Both the Town Board and the Planning Boards failing to make written findings statements as required by the State Environmental Quality Review Act (SEQRA) in regard to the July 28, 2014 and August 26, 2014 actions of the two boards, respectively; and 5) Failing to insure adequate compensation to the neighboring land owners of the proposed mine who do not chose to sell their houses, resulting in the loss of their quiet enjoyment.

Petitioners assert standing based on their proximity to the clay mine. Petitioners assert that due to their proximity to the clay mine, the mine would impact them regarding increase in odors, noise, traffic and a change in the character of the community in ways different in kind and degree than the public at large.

The Town and Planning Boards (Town respondents) have submitted a motion to dismiss the petition as against each of them as well as an answer to the petition. Their motion to dismiss asserts the following grounds: 1) Petitioners lack standing to assert their first cause of action for breach of contract because they are not a party to the contract. Even if they have standing, the Town's interpretation of the CBA was not arbitrary or capricious; 2) The second cause of action should be dismissed because petitioners failed to exhaust their administrative remedies, by seeking review of the Code Enforcement Officer's (CEO) determination that the access road did not violate the zoning laws, and now it is too late to do so; 3) The third cause of action regarding change in location of the access road should be dismissed because the DEC is a necessary party and was not joined in the action. The change in location of the access road requires DEC approval, since it is a change of the DEC mining permit; 4) The fourth cause of action should be dismissed because the Town and Planning Boards each properly and timely adopted the DEC's SEQRA findings as part of their review; 5) The fifth cause of action should be dismissed because the Town did not act improperly in expanding the boundaries of properties eligible for the PVPP, there being no legal basis for the fifth cause of action.

The Town respondents have provided the record of the proceedings.

The court notes that CPLR §7804(f) contemplates that a respondent in an Article 78 proceeding may either answer the petition, or make a motion to dismiss. Therefore, although both respondents submitted answers to the petition, the Court will consider only the motions to dismiss at this time. See La Clair v Caswell, 112 M2d 979 (Sup Ct Oneida County 1982), aff'd 89 AD2d 786 (4th Dept 1982), app dism 57 NY2d 604 (1982).

Petitioners assert they have standing to bring this action because of their proximity to the proposed clay mine. The Town respondents argue that in their first cause of action the petitioners are essentially asserting breach of contract in regard to the CBA. But, since petitioners were not parties to the agreement, which is between the Town Board and SMI, they do not have standing to assert a breach of contract of the CBA. The Town respondents argue that non-parties may only sue for breach of contract if they are the intended and not merely incidental beneficiaries of the contract, citing Zelber v Lewoc, 6 AD3d 1043, 1045 ( 3rd Dept 2004) and Logan-Baldwin v L.S.M. Gen. Contractors, Inc., 94 AD3d 1466, 1468 (4th Dept 2012). Further, the Town respondents assert that for government contracts like the CBA, members of the general public are not treated as intended beneficiaries unless the intention to treat them so is clear, citing Mendel v Henry Phipps Plaza West, Inc. 6 NY3d 783 (2006).

Petitioners reply that since their action is pursuant to Article 78 and, not a contract action, in that their claim is that the Town acted arbitrarily and capriciously in failing to enforce the 1000 feet limit, they have standing.

The court agrees with petitioners that they do have standing regarding their first cause of action, since their claim is not a contract claim. Petitioners are asserting that the Town acted arbitrarily in the way that the Town interpreted its local law and the CBA. Further, as for all of their causes of action, petitioners, especially Ms. Lemmon, have demonstrated that they are within the "zone of interest", that their proximity to the proposed clay mine means that they will be affected in a way different in kind and degree than the community at large, and so have standing. See Sun-Brite Car Wash, Inc. v Board of Zoning Appeals, 69 NY2d 406, 413 (1987); Brighton Residents Against Violence to Children, Inc. v MW Properties, LLC, 304 AD2d 53 (4th Dept 2003).

The petitioners assert that the Town erred, and acted arbitrarily and capriciously, by failing to comply with the CBA entered into by the Town and SMI in August 2005, in that the Town and Planning Boards in issuing their determinations failed to enforce the provision set forth in the CBA Paragraph XIV(F), requiring SMI to be subject to all existing local laws and zoning ordinances in place at the time of the agreement. Petitioners argue that by entering into [*4]the CBA, SMI agreed to be bound by the provisions of all local laws and zoning ordinances of the Town, and this includes the provisions of Chapter 80, which provides for design and operating standards for excavation operations, including that "no excavation shall be permitted within 1000 feet of an existing residence" [Chapter 80 §80-7(B)] and Chapter 79 regarding site plan review and approval.

SMI asks the court to dismiss the first cause of action for failure to state a cause of action. CPLR §3211[a][7].

This ground for dismissal requires the court to interpret the CBA, Chapter 79, and Chapter 80 in view of the relevant sections of the MLRL (ECL §23-2701 et seq) and make a determination of law. Thus, this is an appropriate review for the court under CPLR §3211[a][7], there being no questions of fact before the court, and the relevant documents having been submitted with the record herein.

The provisions of Town of Waterloo Laws, Chapter 80 enacted in 2000, entitled "Mining and Excavation" regulates certain mining and excavation activities in the Town. However Section 80-4, "Applicability", specifically exempts from its requirements "Any excavation activity that is, or would be, regulated by the State of New York (a regulated excavation) and is not otherwise regulated by a local zoning law" §80-4(B)(1). Thus, Chapter 80 by its own terms exempts excavation activities regulated by the MLRL (ECL §23-2701 et seq.), which activities are not otherwise regulated by a local zoning law. Since Chapter 80 deals only with mining and excavation and does not regulate general activities in the Town, a mining activity that is regulated by the MLRL, such as the proposed clay mine, is not regulated by Chapter 80. Therefore, the August 16, 2005 CBA (requiring SMI to be subject to all existing local laws and zoning ordinances) does not require the Town and SMI to comply with Chapter 80 in this matter.

Turning to petitioners' claim for relief regarding Chapter 79 of the Town of Waterloo Laws, the Court notes it is correct that the MLRL does not prohibit a town from requiring a mining project to comply with local law requirements to the extent such requirements are not directed at mining per se.

"While the MLRL supersedes all other state and local laws,' supersession is expressly limited to laws relating to the extractive mining industry.' (ECL 23-2703[2]), thereby only precluding local laws regulating actual extractive mining operations or activities (cites omitted). Local governments are not prevented from enacting or enforcing local laws or ordinances of general applicability' that do not directly regulate mining and/or reclamation activities' (ECL 23-2703[2][a]) or local laws which determine permissible uses in zoning districts' (ECL 23-2703[2][b]) (cite omitted) and which affect the extractive mining industry only in incidental ways.'" Troy Sand & Gravel Co., Inc. v Town of Nassau, 101 AD3d 1505, 1508-1509 (2012), quoting Mtr of Hunt Bros. v Glennon, 81 NY2d 906, 909 [1993].

The court has examined Town of Waterloo Laws Chapter 79, enacted in 2000 entitled "Site Plan Review and Approval". This local law in its "applicability" section 79-4(F) includes within its reach "Any project or action that will require removing from or depositing on a site more than 1,000 cubic yards of material of any sort, unless such action is regulated by the New York State Mined Land Reclamation Law" (Emphasis added).Once again, the court must conclude that this provision of the local law, by its terms, exempts the proposed clay mine herein [*5]from its reach, and therefore the CBA did not require SMI to comply with Chapter 79.^[FN1] Petitioners have not shown that the Planning Board's actions were arbitrary and capricious in regard to the site plan review that was undertaken or how the CBA was violated vis-a-vis Chapter 79.

Therefore, the first cause of action is dismissed, with prejudice.

As a second cause of action, Petitioners allege that the Town erred in allowing SMI to build an access road through an R-1 district, as part of the proposed mining activity. Petitioners assert that mining is only allowed in agricultural zones by special permit and that no mining activities are permitted in an R-1 zone. Chapter 135 of the Town's local laws "Zoning" (Chapter 135) does not contain any language exempting clay mines from its provisions and so the clay mine is subject to Chapter 135's terms since they deal generally with land use and do not attempt to regulate mining activities, specifically.

The respondents seek dismissal of this cause of action for petitioners' failure to timely pursue their administrative remedies. They assert petitioners should have sought review of the CEO's determination to accept SMI's application for a mining permit which application included the access road through an R-1 district. Respondents note that only the CEO is charged with interpreting the Zoning Ordinance and after the CEO accepted the permit application, despite the access road traversing the R-1 Zone, the petitioners' sole remedy was to timely challenge that interpretation before the ZBA.

The CEO did not make a written determination, filed in his office or with the Town Clerk, determining that SMI did not need a variance or a change in the zoning law to place the access road through the R-1 zone. Filing of such a determination would start the time running for an aggrieved party to seek review by the ZBA of such determination. Town Law §267-a[5] provides: "Each order, requirement, decision, interpretation or determination of the administrative official charged with the enforcement of the zoning local law or ordinance shall be filed in the office of such administrative official within five business days from the day it is rendered, and shall be a public record. Alternatively, the town board may, by resolution, require that such filing instead be made in the town clerk's office." Subdivision [b] of Town Law §267-a[5] then provides that an appeal be taken within sixty days of such filing.

Respondents argue that since Town Law Chapter 135 §135-12[C] does not require that the decision or interpretation of the CEO be in writing, Town Law §267-a's requirements are superseded by the local law. The court rejects this argument.

Municipal Home Rule Law §22[1] requires that any local law that is intended to supersede a state Statute must specify the state law it is superceding. See Viscio v Town of Wright, 42 AD3d 728 (3td Dept 2007). Here, Chapter 135 "fails to create a certainty that it intended to supercede" Town Law §267-a (Viscio at 731).

The court does agree with respondents' assertion that neither the Town Board nor the Planning Board may interpret a local zoning law, but only the CEO may do so, and that such [*6]interpretation must be appealed to the ZBA before a court may review it. Inasmuch as here, the interpretation of Chapter 135 in regard to the access road has not been formally determined by the CEO, as evidenced by a written and filed interpretation of the local zoning code, the court may not entertain this cause of action. The petitioners must exhaust their administrative remedies, after the CEO files his determination regarding interpretation of Chapter 135 in regard to the access road through the R-1 zone. Therefore, the second cause of action is dismissed, without prejudice. Furthermore, the court does not and may not reach the other arguments by the parties concerning whether the parcel is land locked.

Petitioners' third cause of action asserts that the Town violated the DEC Mining Permit terms by allowing SMI to move its access road closer to petitioner Lemmon's property, after the DEC's permit was issued, which in the Mining Plan Maps referenced in the DEC permit show an access road that intersects Burgess Road approximately 500 feet north of Saloman Road, considerably northeast of Lemmon's property (R0101). However, the Final Mine Plan annexed to the Town's July 28, 2014 resolution as Ex 4 (R0151) shows the access road intersecting Burgess Road directly opposite Saloman Road. Petitioners therefore argue change in the mine use plan by change in the location of the access road was never approved by the DEC and so is in violation of the terms of the DEC permit.

The respondents ask the court to dismiss this cause of action because the DEC, not the Town respondents issued the mining permit (MLR #80837). The DEC would need to be a respondent in any action regarding an alleged violation of the MLR #80837 and petitioners failed to join the DEC in this action. SMI asserts that the change in location of the proposed access road was suggested by the Town and that it is up to the DEC to determine whether or not it will amend the permit to allow such change in location of the access road.

The court finds that the petitioners have not exhausted their administrative remedies, in that the amendment to the mining permit moving the access road must first be determined by the DEC, and so the matter is not ripe for review by this court, at this time. See MLRL §23-2721.

The motion to dismiss the third cause of action is granted, without prejudice, due to the petitioners' failure to exhaust their administrative remedies.

The fourth cause of action alleges the Town failed to comply with SEQRA requirements, in that the Town failed to make a written findings statement as required by 6 NYCRR 617.11[c] and/or 6 NYCRR 617.11[d], prior to its final decision on July 28, 2014. The petitioners also assert that the Planning Board improperly failed to make a written findings statement prior to its final decision on August 26, 2014.

The respondents posit that the petitioners' assertions are belied by the record herein, and this cause of action should be dismissed. The court agrees. Each of the Town respondents adopted the DEC's SEQRA findings of May 24, 2013 as it's own. The Town Board's July 28, 2014 resolution and the Planning Board's August 26, 2014 resolution include each board's adoption of such findings as the first enumerated paragraph in each resolution made to grant approval of the project (Record at 0003 and 0241). These actions by each board were sufficient to comply with the written findings statement requirements of 6NYCRR 617.11 [c] and [d]. The fourth cause of action is dismissed, with prejudice, for failure to state a cause of action. See [*7]NYSDEC SEQR Handbook (Ex 2 to Marsh affirmation) and Matter of Turkewitz v Planning Bd. Of City of New Rochelle, 24 AD3d 790 (2nd Dept 2005).

The fifth cause of action alleges that the Town failed to properly mitigate damages to landowners and protect property values by agreeing in the PVPP that SMI would pay neighboring property owners only when/if they sell their property at a reduced amount due to SMI's activities. But at the same time no money is paid to those who opt to keep their property.

Upon the proof presented, the court concludes that the Town did not act arbitrarily and capriciously in regard to this aspect of the PVPP.

Therefore, this cause of action is dismissed, with prejudice, for failure to state a cause of action.

The petition is dismissed, with prejudice, in regard to the first, fourth and fifth causes of action. The petition is dismissed, without prejudice, in regard to the second and third causes of action. Further, all of the relief requested in the petitioners' petition is in all respects denied.

No attorney fees, costs or disbursements are awarded to either party.

Submission of an order or judgment by the parties is not necessary. The mailing of a copy of this Order and Judgment by this Court shall not constitute notice of entry.

THIS CONSTITUTES THE DECISION, JUDGMENT AND ORDER OF THE COURT.

SO ORDERED.

ENTER.