This CPLR article 78 proceeding is the most recent of many actions relating to the operation of a sand and gravel mine in the Town of Southampton (the Town), located in Suffolk County, New York. The mine is owned and operated by plaintiffs/petitioners Sand Land Corporation and Wainscott Sand and Gravel Corp (collectively "Sand Land" or "petitioners").

The facts of this matter are fully set forth in the related matter: Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 NY3d 201 (2023). Briefly,

[t]he mine has been operating continuously since the 1960s, at which time the zoning code allowed mining pursuant to a required permit. In 1972, the Town re-zoned the area where the parcel is located to a residential district in which mining is prohibited. In 1981, Sand Land's predecessor in interest obtained a Mined Land Reclamation Permit (MLRP) from [the Department of Environmental Conservation (DEC)], which was renewed in 1985. In 1998, DEC renewed the MLRP and transferred it to Sand Land, authorizing mining on 31.5 acres to a depth of 160 feet above mean sea level (amsl). In 1998, Sand Land also began receiving and processing vegetative organic waste materials in a 3.1 acre portion of the property known as the "stump dump." In 2011 and 2016, Sand Land obtained certificates of occupancy from the Town stating that the use of the site as a sand mine was a prior nonconforming use. DEC also renewed Sand Land's permit in 2003, 2008, and 2013.

In 2014, Sand Land submitted an application to DEC to modify its permit. The application sought to increase the depth of mining by 40 feet, from 160 feet amsl to 120 feet amsl. The application also proposed mining on an additional 4.9 acres that had not [*2]been approved under prior DEC permits, comprised of a 1.8 acre "area of modification" and the 3.1- acre stump dump.

While the DEC initially denied Sand Land's 2014 permit modification application, before the administrative review of that denial was completed, the parties entered into a settlement agreement.^[FN1] As part of that agreement, Sand Land agreed to, among other things, cease the processing of vegetative organic waste materials, and the DEC agreed to, among other things, renew Sand Land's permit and allow Sand Land to increase its mining activity to 34.5 acres. In March 2019, the DEC issued the renewed permit to Sand Land, permitting mining on the 34.5 acres, together with an amended negative declaration allowing an increase to the depth of mining, thus prompting the commencement of Matter of Town of Southampton v New York State Dept. of Envtl. Conservation.^[FN2] During the pendency of the related matter, and in response to Sand Land's subsequent application to revise the mining plan, in June 2019, the DEC issued a modified permit authorizing mining to a depth of 120 feet amsl — 40 feet more than the previously permitted depth (June 2019 modified permit). Petitioners, in the related matter, then amended their petition to challenge the June 2019 modified permit. Also during the pendency of the related matter, in May 2020, the DEC issued a second modified permit (May 2020 second modified permit) that permitted Sand Land to

Mine Sand and Gravel from 34.5 acres of a 34.5 acre Life of Mine (LOM) on a 50 acre property. Within the 34.5 acre LOM, the final mine floor will be at elevation 120 feet amsl. The site will be reclaimed to open meadow for equestrian or agricultural use. . .

This modification removes the provision allowing vegetative waste to be brought to the site for reclamation purposes. All future reclamation will be done using loam and sand [*3]that already exists on the site. Importation of products is limited to, crushed stone, crushed concrete aggregate and finished compost (created off site from yard trimmings) to create salable aggregate products and sand-based soils. All mining activities at the site will continue in accordance with the permit modification issued on 6/5/2019, which expires on 3/14/2024

(NYSCEF No. 7 [emphasis added]).

By Decision dated February 9, 2023, the Court of Appeals in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation annulled the 2019 renewal and June 2019 modification permits (see id., at 214). The Court of Appeals remitted the matter to Supreme Court with directions to remand the issue of non-conforming use to the DEC, which "must first ascertain from the Town [ ] whether Sand Land's proposed use is within the scope of any prior non-conforming use" (id.).

While the DEC's issuance of the May 2020 second modified permit was not briefed or addressed by the parties or the Court in the related proceeding, the May 2020 second modified permit authorized mining in accordance with the annulled June 2019 modified permit. The June 2019 modified permit authorized mining within a 34.5 acre LOM to a depth of 120 feet amsl - a 40-foot deepening over the existing footprint. In April 2023, the Town of Southampton advised the DEC that Sand Land had not established the extent of its pre-existing nonconforming use beyond the initial 20 acre footprint approved when zoning was enacted (see NYSCEF No. 27, page 9).

As a result of the Court of Appeals' determination, the DEC took the position that the 2020 second modified permit was extinguished, and that the 2013 renewal permit applied to Sand Land's mining activities. On April 18, 2023, the DEC issued Sand Land a Notice of Violation asserting, among other things, that Sand Land's removal and sale of stockpiled minerals was in violation of the 2013 renewal permit. On April 27, 2023, the DEC issued Sand Land a second Notice of Violation asserting, among other things, that Sand Land's importation of certain of materials onto the site was in violation of 2013 renewal permit.

Sand Land then commenced this action seeking a declaration that the May 2020 second modified permit remains effective absent the DEC's compliance with the administrative procedures for the suspension and revocation of the May 2020 second modified permit (see ECL 70-0115 [1]; 6 NYCRR 621.13). Sand Land also challenges the DEC's determination to apply the 2013 renewal permit and to issue notices of violation pursuant to that permit as affected by error of law, arbitrary and capricious, irrational, and an abuse of discretion. Accordingly, Sand Land seeks, inter alia, an order annulling the notices of violation issued in April 2023.^[FN3]

Before the Court are two competing Orders to Show Cause. By Order to Show Cause, filed May 10, 2023, Sand Land moved for a preliminary injunction enjoining the DEC from prohibiting it from removing stockpiled minerals for sale and otherwise engaging in mining activities that are otherwise permitted by the May 2020 second modified permit. By Order to Show Cause, filed May 15, 2023, the DEC moved for a preliminary injunction preventing Sand Land from operating under any permit other than the 2013 renewal permit, and specifically, based upon the limitations set forth in the 2013 renewal permit, enjoining Sand Land from importing materials into the Life of Mine (LOM)^[FN4] and removing stockpiled minerals for sale.^[FN5] Oral argument was held on May 26, 2023, and post argument submissions were filed June 9, 2023.

"[A] preliminary injunction is a provisional remedy, interlocutory in nature, designed to maintain the status quo until adjudication of the merits" (Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d 1220, 1221 [3d Dept 2011]). "The party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; see CPLR 6301, 6312 [a]; Biles v Whisher, 160 AD3d 1159, 1160 [3d Dept 2018]; Karabatos v Hagopian, 39 AD3d 930, 931 [3d Dept 2007]). "The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts" (Doe v Axelord, 73 NY2d 748, 749 [1988]; see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d at 840]).

In support of its application, Sand Land argues that the May 2020 second modified permit, under which it is currently operating, was validly issued and remains in effect absent the DEC's compliance with the Uniform Procedures Act (see ECL Article 70) and its implementing regulations (see 6 NYCRR 621 et seq). Sand Land notes that the May 2020 second modified permit was not the subject of the related action, which resulted in the Court of Appeals determination, and argues that the May 2020 second modified permit is a self-contained independent permit, subject to the Uniform Procedures Act and 6 NYCRR 621.13. Sand Land asserts that the DEC's decision to apply the 2013 renewal permit to Sand Land's current mining activities results in imminent and irreparable harm by prohibiting Sand Land from selling its products, paying its employees, satisfying ongoing expenses, bidding on contracts, or accessing [*4]the reserves to meet local demand for aggregate products.^[FN6] Finally, Sand Land argues that operation under the May 2020 second modified permit would maintain the status quo.

In opposition to Sand Land's application and in support of its own, the DEC submits the affidavit of Catherine A. Dickert, the DEC's Director of Mineral Resources, and the affidavit of Matthew Conlon, a Mined Land Reclamation Specialist with DEC. Ms. Dickert and Mr. Conlon also provide a background of mining activities at the site, which began in the mid-1960's — prior to the enactment of the Mined Land Reclamation Law (MLRL). The original DEC permit, issued in 1981, covered 20 acres of the site. In 1984, the permit was modified to increase mining acreage. Permits were, thereafter, renewed and modified through 2013. The 2013 renewal permit authorized Sand Land to mine the 31.5 acres LOM to a depth of 160 feet amsl (see NYSCEF No. 61). However, the 2013 renewal permit did not include the 3.1-acre 'stump dump' - an area that was mined prior to the enactment of the MLRL (see NYSCEF No. 61).

The March 2019 renewal permit permitted mining on 34.5 acres, including the 'stump dump' area, and was subject to applications for modifications, which were approved by the June 2019 modified permit and the May 2020 second modified permit.^[FN7] In 2023, after the Court of Appeals issued its Decision in the related action, the DEC determined that the 2013 renewal permit governed Sand Land's mining activities. Since the activities observed were not authorized by the 2013 renewal permit, the DEC issued Sand Land notices of violation.

With respect to satisfying the element of likelihood of success on the merits, the DEC argues that it rationally concluded that the May 2020 second modified permit was extinguished by the Court of Appeals annulment of both the 2019 renewal permit and the June 2019 modified permit. The DEC further argues that the DEC rationally concluded that the 2013 renewal permit was reinstated as a matter of law based on the State Administrative Procedure Act § 401 (2). To treat the May 2020 second modified permit as an independent permit, the DEC argues, would effectively negate the Court of Appeals determination annulling the March 2019 renewal permit and the June 2019 modified permit. The DEC also contends that the provisions of the Uniform Procedures Act and its implementing regulations (see 6 NYCRR 621 et seq) regarding notice and an opportunity to be heard do not apply where, as here, a Court has annulled an underlying permit. With respect to irreparable harm and the balancing of the equities, the DEC argues that Sand Land's continued importation of materials into the mine's regulated area and removal and [*5]sale of substances may impair ground water quality as well as future reclamation of the mine, and will result in the DEC expending more resources to enforce the terms of the 2013 renewal permit.^[FN8]

In this Court's view, the crux of its analysis for purposes of determining whether either of the parties have established a likelihood of success on the merits begins with the Court of Appeals February 2023 Decision in the related case: Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 NY3d 201 (2023). In that Decision, the Court of Appeals annulled both the 2019 renewal permit and the June 2019 modified permit, finding that DEC "must first ascertain from the Town [ ] whether Sand Land's proposed use is within the scope of any prior non-conforming use." Sand Land has not cited any authority for its position that the Court of Appeals Decision does not operate to also extinguish the May 2020 second modified permit. Indeed, pursuant to the May 2020 second modified permit, "[a]ll mining activities at the site will continue in accordance with the permit modification issued on 6/5/2019" (NYSCEF No. 7). The June 2019 modified permit authorized mining within a 34.5 acre LOM to a depth of 120 feet amsl - a 40-foot deepening over the existing footprint and, as directed by the Court of Appeals, the June 2019 modified permit has been annulled. While the Court acknowledges Sand Land's argument regarding alleged noncompliance with the notice and hearing provisions set forth in the Uniform Procedures Act and its implementing regulations (see 6 NYCRR 621 et seq), this Court is unpersuaded, for purposes of Sand Land's instant application, that the May 2020 second modified permit, which derives its mining authority from an annulled permit, is an independent permit that was not extinguished by the Court of Appeals Decision. Accordingly, the Court finds that Sand Land has not established a likelihood of success on the merits. While the DEC has similarly not cited any authority for its position that the Uniform Procedures Act and its implementing regulations are extinguished by operation of law as a result of the Court of Appeals Decision, for the reasons set forth above, the Court finds that for purposes of DEC's application, and specifically based on the Court of Appeals determination in the related action, the DEC has established a likelihood of success on the [*6]merits.^[FN9]

In considering the next factor applicable to the instant applications, the Court finds that Sand Land has not established that it will suffer from irreparable injury absent the injunction. "[T]he threat of financial injury to [Sand Land] is not alone sufficient to warrant preliminary injunctive relief where the injury is measured against the threat of injury to a public interest which, though perhaps less amenable to quantitative measurement, has been determined [to] outweigh commercial interests" (Mariculture Ltd. v Biggane, 48 AD2d 295, 298 [3d Dept 1975]; see Delaware County Bd. of Supervisors v New York State Dept. of Health, 81 AD2d 968, 970 [3d Dept 1991]). "The Mined Land Reclamation Law ("MLRL") [ ] grants [the] DEC broad authority to regulate the mining industry in the state. The law is intended to encourage a sound mining industry, provide for the management of depletable resources, and assure the reclamation of mined land" (Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 NY3d at 208; see ECL 23-2701 et seq.). In enacting the MLRL, the Legislature declared it to be a policy of the state to provide for the conservation of natural resources, to prevent pollution, and to protect the health, safety, and general welfare of the people (see ECL 23-2703; State of New York v Izzo, 216 AD2d 456, 457 [2d Dept 1995]). Accordingly, in light of the public interest in regulating mining activities by the State of New York, Sand Land's claims of financial injury do not establish the requisite irreparable harm that would warrant the issuance of a preliminary injunction in its favor.

In contrast, the Court finds that the DEC has established irreparable harm if Sand Land is permitted to continue to operate under the May 2020 second modified permit during the pendency of this action. Specifically, mining below 160 feet amsl could have a negative impact on ground water which, according to the 2013 renewal permit, is located 140 feet from 160 feet amsl (the final elevation of the mine floor) (see NYSCEF No. 61, page 17),^[FN10] and may affect [*7]reclamation efforts (see NYSCEF No. 26, ¶ 21).^[FN11]

Finally, this Court finds that the balance of the equities weighs in favor of granting the DEC's application for a preliminary injunction. "In considering this element when 'ruling on a motion for a preliminary injunction, the courts must weigh the interests of the general public as well as the interests of the parties to the litigation' [ ]. In balancing the equities, a court must inquire into whether 'the irreparable injury to be sustained ... is more burdensome [to Sand Land] than the harm caused to [to the DEC] through imposition of the injunction'" (Eastview Mall, LLC v Grace Holmes, Inc., 182 AD3d 1057, 1059 [4th Dept 2020], quoting Destiny USA Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 223 [4th Dept 2009], lv dismissed 85AD3d 1656 [4th Dept 2011], and Felix v Brand Serv. Group LLC, 101 AD3d 1724, 1726 [4th Dept. 2012]).

Here, the Court finds that the DEC's injury if the preliminary injunction is not granted will be more burdensome than any injury to Sand Land if its application is not granted. For purposes of the instant applications, no viable argument has been presented that, based on the precedent set forth by Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 NY3d 201, the May 2020 second modified permit would not be properly revoked or modified upon the conclusion of administrative proceedings, if they are even required. Indeed, the May 2020 second modified permit only authorized mining in accordance with the annulled June 2019 modified permit. The June 2019 modified permit increased the scope and depth of mining which, according to the Town, has not been established to be pre-existing nonconforming use (see NYSCEF No. 27, page 9). Accordingly, any administrative challenge will seemingly result in the revocation, modification, or suspension of the May 2020 second modified permit. In contrast, further mining pursuant to the May 2020 second modified permit may negatively affect groundwater and reclamation efforts. Thus, the Court concludes that the balancing of the equities weighs in the DEC's favor.

Accordingly, on the record before the Court, and in considering the factors relevant to the relief sought by the parties, the Court, in its discretion, grants the DEC's application for a preliminary injunction.

Accordingly, it is hereby

ORDERED that Sand Land's application for a preliminary injunction is denied; and it is further

ORDERED that the DEC's application for a preliminary injunction is granted, and Sand Land is enjoined and restrained from operating under any permit other than the 2013 renewal permit during the pendency of this action; and it is further

ORDERED that, within forty-five (45) days of the date this Decision and Order is served with Notice of Entry, the parties shall submit a supplement briefing to the Petition and Answer, each providing authority for their respective positions, on 1) the issue of whether the DEC is absolved of the administrative requirements set forth in ECL 70-0115 (1) and 6 NYCRR 621.13 with respect to the May 2020 second modified permit; and 2) the issue of whether the Court of [*8]Appeals Decision in Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 39 NY3d 201 effectively nullifies the May 2020 second modified permit.

This constitutes the Decision and Order of the Court, which will be uploaded to the New York State Court's Electronic Filing System (NYSCEF). Counsel is advised of 22 NYCRR 202.5-b (h) (2) relating to notice of entry.