Material Matters - Spring 2015 - (Page 9)

PRESidENT'S REPORT By Dave Hamling President & CEO New York Construction Materials Association A YEAR AGO I used this column to tell you about a town interest in the property so their demand for payment is not government that participated in the full mining permit review a royalty-it is a tax. More specifically, it is a severance tax conducted by NYSDEC then reneged at the last minute. In that levied on the extraction of a natural product. There's a prob- case, the town didn't object to DEC assuming "Lead Agency" lem, though-local governments can't unilaterally impose under SEQR (State Environmental Quality Review Act), severance taxes. It's against the law. The company correctly and fully participated in the project review as an "Involved balked at the royalty payment, but believed offering nothing Agency." After the full review, DEC issued the state mining meant risking success with the local permitting process. permit, but the town deferred issuing a Special Use Permit, There's a message here-local governments are getting citing the need for "additional environmental review." Now, feisty. Since the state Mined Land Reclamation Law super- that simply isn't right. The law is very specific: the Lead sedes all local mining laws, town fathers are trying to gain Agency must incorporate and consider the environmental regulatory control in other creative ways. The "do over" issues identified by all involved agencies and, when com- example shows a town that is ignoring the law to bleed a min- pleted, all involved agencies are bound by the SEQR record. ing company dry by churning through study after study. That Apparently that part of the law wasn't to the liking of the town town's end game is to deny the permit without ever issuing a supervisor, so he called for a "do over." NYMaterials found denial. Applicants must quickly and aggressively battle those the town's blatant disregard for the law to be unacceptable kinds of initiatives. I look at the "royalty" example a little dif- as it could empower others to require round after round of ferently because it isn't an outright "no." Under this scenario, additional reviews without ever granting a permit. To compel permit applicants are faced with two opposing options. First, the town to play by the rules we joined the company in a they can make a legal decision to battle the town since the lawsuit, which should be decided soon. law is clear: town governments cannot unilaterally require Now, there's another story involving a town that has mining royalties or severance taxes. There's a very good chance the in its sights. I recently got a call from a sand and gravel pro- applicant will prevail in court. The other option is more of ducer in a rural area of the state that has been a good corporate a business decision. Since the local government hasn't said neighbor for nearly a century. Since their permitted site was "no," there might be a way to negotiate something other than nearly depleted, they had purchased a greenfield property with an illegal royalty to find an equitable solution. In the case at excellent reserves across the street from their existing opera- hand, the mining company has made a business decision to tions. Starting in 2008, the company began the permitting negotiate with the town. For them, the business decision to process on the new property which, in addition to a DEC min- negotiate avoids polarizing attitudes any further while saving ing permit, required a zoning change and Special Use Permit the time and expense of a lawsuit. from the town. Six years later, the environmental review Here's the moral of the story. When a local government does was completed, as were the several archeological studies, the everything in its power to stop your project, it's time to throw Native American consultations, and the public hearings (with off the gloves and duke it out. Producers could also decide to virtually no opposition). DEC issued the state mining permit duke it out when a local government demands money. The and the town ultimately granted the zone change request, so key word is "negotiate" when it makes sense. Sometimes the it was only a matter of obtaining the Special Use Permit from negotiations work and sometimes they don't. Regardless, the local government. That's when the town decided to lever- permit applicants need to understand that local approvals are age its permitting authority through some good old-fashioned every bit as important as the state mining permit-because extortion. They notified the applicant that local permits would you're not in business until you have both. We used to focus be conditioned on paying a "per ton royalty" on the material. almost entirely on the state permit, but local governments My dictionary describes the term "royalty" as compensa- are increasingly sophisticated and creative in their treatment tion to the owner of a right (minerals in this case) for the use of of land use decisions. That's why you'll want to keep your the right. In this case, the town does not have any ownership business hat next to your legal hat. Material Matters * Spring 2015 9

Table of Contents for the Digital Edition of Material Matters - Spring 2015

Chairman’s Message
President’s Report
Legislative News
Counsel’s Corner
Judge Rules that Mineral Sampling in the Adirondack Forest Preserve May Proceed
Mapping and Materials
The Rumor is True…They’re Back!
2014 HMA Showcase Award Winners
One of My Pet Peeves…Potholes!
Getting Out and About
Progress with Roller Compacted Concrete
Wild, Wild Western New York The Great Buffalo Blizzard of ‘14
Buyers’ Guide & Trade List

Material Matters - Spring 2015