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THE PINE BARRENS PROTECTION ACT
(PBPA)
The Pine Barrens Protection Act
defines "Development" in four
different ways:
1.
A change in type of use of a
structure or land.
2.
A material increase in the
intensity of use of land or
environmental impacts as a
result thereof.
3.
Commencement of mining,
excavation or material
alteration of grade or
vegetation on a parcel of land
excluding environmental
restoration activities.
4.
Re-establishment of a use, which
has been abandoned for one year.
Though the range violates all of these
stipulations to varying degrees, the one
which it most clearly violates is Number
4:
Re-establishment of a use, which has
been abandoned for one year.
Since the range was closed four 4 years
and 9 months, the "one -year"
requirement is easily met. However
the range supporters consistently argue
that "The County" always intended to
reopen the facility so it cannot be
considered as "abandoned". This
issue is addressed in several court
cases, but the most notable decision in
regard to this issue was rendered by the
New York State Court of Appeals.
In their decision in a landmark case
involving non-conforming use, the court
unanimously ruled that:
"In
New York, the inclusion of a
lapse period in the zoning
provision removes the requirement of
intent to abandon...discontinuance of
nonconforming activity for the
specified period constitutes
abandonment regardless of intent"
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Matter of Toys “R” Us v Silva , 89
NY2d 411, 421 [1996];
(see also,
Town
Bd. of Town of Southampton v
Credidio, 21 AD3d 547, 548 [2005];
Matter of Pica v Bennett, 164 AD2d
859, 862 [1990]; Matter of Village
of Waterford v Amna Enterprises,
AD3d [2006].)
Clearly, the law not only stipulates
that a nonconforming use that has been
discontinued for longer than a specified
lapse period (in this case, one year)
cannot be reestablished, but it also
defines such discontinuance as
"abandonment" (which satisfies the
wording of the PINE BARRENS PROTECTION
ACT), but also that the
"intent" to reestablish a nonconforming
use is irrelevant.
THE QUESTION OF WHETHER OR NOT sUFFOLK
COUNTY INTENDED TO REOPEN THE
RANGE IS MOOT SINCE THE COURT OF APPEALS
DECISION CLEARLY RULES THAT THE
EXISTENCE OF A LAPSE PERIOD SUPERSEDES
ANY ISSUE OF INTENT.
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The shooting range was closed by Suffolk
County on October 1, 2001. The Range was eventually reopened on
July 15, 2006, demonstrating that it was
closed for a period of 4 years and 9
months.
Since
the range exists in the Core
Preservation Area of the Pine Barrens as
it was designated by the PBPA in 1993,
it was subject to the rules of the
PBPA should the County ever decide to
reopen the facility. Additionally,
since the land in Southaven Park rests
in the Town of Brookhaven, it is subject
to Brookhaven zoning laws.
For
example, the land on which the shooting
range is located has been zoned as
"Residential" since 1937. Since
the range did not exist at its present
location until the early 1950's, its
presence on residentially zoned land
classified it as a "Legal
Non-conforming Use". In fact,
the range's current licensee, Mark
Wroobel, said as much in his legal
filings challenging Brookhaven Town's
noise law wherein he wrote that the
range is a "Preexisting legal
nonconforming use".
Since the range was closed for longer
than one year, it was subject to PBPA's
"reestablishment" clause which
prohibits:
"the
reestablishment of a use which has been
abandoned for longer than one year".
Range supporters have argued that the
range was never abandoned but rather it
was simply closed until the County could
acquire a new vendor to run the
facility. This argument is untrue
for several reasons which begin with
zoning law.
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Brookhaven Town Code (Zoning)
§ 85-372 Nonconforming
uses.
The lawful
use of any building, structure or land
existing at the effective date of the
zoning ordinances of the Town of
Brookhaven may be continued although
such use does not conform to the
provisions of this chapter, provided
that the following conditions are met:
(6) Discontinuance.
The substantial discontinuance of any
nonconforming use for a period of one
year or more terminates such
nonconforming use of a structure or
premises and thereafter such structure
or premises shall not be used, except in
conformity with the provisions of the
Town Code.
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This law, together with the case law
that supports it, proves that the range
was abandoned and was thus reopened
illegally in violation of the Pine
Barrens Protection Act.
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Here are some more facts pertaining to
environmental issues at the shooting range: |
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FACT: |
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Report of the Trap and Skeet
Oversight Committee – prepared for
Peter A. Scully, Commissioner of
Suffolk County Parks, Recreation and
Conservation March 2002
Page 10 “Laboratory
analysis revealed excessive lead
levels is surface samples, collected
0” – 2” below the grade, throughout
the investigated area. The sampling
also indicated most lead levels
would be acceptable for passive
parkland use after the removal of
the top four to six inches.”
Page 16 Soil Contamination
“Lead contaminated soil exists
throughout a major portion of the
range. Lead levels well above those
acceptable for parkland use were
encountered to a depth of at least
6” below grade.
Page 20 Groundwater Samples
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Monitoring well #1
12/24/01
*20ppb
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Monitoring well #2
12/24/01
*20ppb
*This
is higher than the New York State standard for
drinking water, which is 15 ppb.
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FACT: |
Initial
Environmental Evaluation Southaven County
Park Trap & Skeet Range prepared by Dick
Peddicord & Company, Inc. for Suffolk
County Department of Parks, August 2002
Page 5
“If the surfical soil from the field that
contains shot were managed as a waste under
RCRA
(Resource
Conservation and Recovery Act), it would be classifiable as a
‘hazardous waste’ with all the handling and disposal
requirements associated with that
classification.”
Page 10
“it is the consistent
policy of the U.S. EPA that when a range is
closed un-reclaimed shot on the site is
abandoned and becomes a ‘waste’ under RCRA."
Page 11 “The
surface six inches in the central part of
the shotfall zone would exceed the TCLP
(Toxicity
Characteristic Leaching Procedure)
limit for lead and be
classifiable as ‘hazardous’ under RCRA. It would not be
unreasonable to expect the residual soil
from lead recovery at the site to exceed the
TCLP limit for lead and have to be managed
as hazardous waste.
While there are no data to address this
issue, the total lead data in Table 1 and
experience from other ranges indicate that
much of the soil outside the area of highest
shot accumulation would likely exceed TCLP
and have to be managed as ‘hazardous waste’."
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FACT: |
Review of the
2007-2009 Proposed Capital Program 2007
Capital Budget, May 2006
Page 391
“This project also includes the clean
up of lead and other contaminates that
resulted from the use of the range over many
years (primarily lead shot and clay
targets).
This
material has been determined to be hazardous
waste and poses a threat to the ground
water."
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FACT: |
Review of
the 2006-2008 Proposed Capital Program
2006 Capital Budget, May 2005
Page 401
“The Parks Department expanded the scope of this
project to include the clean up of the lead
and other contaminants that resulted from
the use of the range over many years
(primarily lead shot and clay targets).
This material has been
determined to be hazardous waste and poses a
threat to the ground water."
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FACT: |
Review of the
2005-2007 Proposed Capital Program 2005
Capital Budget, May 2004
Page 395
“The (Parks) Department requested an additional $900,000
over the 2005-2007 timeframe of the capital
program to allow for the cleanup of the lead
and other contaminants at the site.
According to the department, additional studies done at the
site indicated that theses contaminants may
be harmful to ground water.”
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FACT: |
"Lead contamination of groundwater
has been shown to be higher than NYS
standards: An environmental review
performed by Dick Peddicord & Company in
2002, Inc found two county wells on the
property containing lead levels higher
than surrounding well, the levels at the
two wells were recorded at 20 ppb. This
is higher than the state standard for
drinking water, which is 15 ppb. Lead
contamination of soil exceeds DEC
standards: Soil samples taken in the
same evaluation showed that the surface
six inches in the central part of the
shot fall zone would exceed the Toxicity
Characteristic Leaching Procedure limit
for lead and be classifiable as
‘hazardous’ under the Resource
Conservation and Recovery Act."
(Adrienne Esposito, Citizens Campaign
for the Environment, November 26, 2008) |
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FACT: |
"The Suffolk County Trap & Skeet
Range does not conform to the EPA Best
Management Practices for lead removal,
allowing discharge lead shot to
accumulate."
(L. K. McLean Associates, August 2004,
SCDPW report)
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The Suffolk County Trap & Skeet Range is located in Southaven
County Park in the Core Preservation Area of the
Pine Barrens. The range
sits directly atop a sole source aquifer
from which Long Islanders draw their
drinking water and is part of the Carmans
River Watershed and Drainage Basin.
The Carmans River is a New York State designated Wild, Scenic, and
Recreational River. Both the Town of
Brookhaven and Suffolk County have
identified the Carmans River watershed as a ‘critical
environmental area’ and as such, should be
offered greater protection from potential
significant adverse environmental impacts.
(Cashin
Associate Report, March 2002 for SCHD)
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