Showdown over Snake Mountain: how a new local government was formed to resolve a land-use dispute.

• Author: LaValley, Joseph C., III
• Position: New York

1. INTRODUCTION

   "Local land-use control," while something of a political shibboleth, is an issue that nonetheless remains in the forefront of New York State politics. Recently, residents of the Rensselaer County Town of Nassau fought bitterly with a large corporation, with one another, and with the New York State Department of Environmental Conservation (NYSDEC) over a local land-use issue. (1) The "bone of contention" was whether a Connecticut corporation would be permitted to open a hard-rock quarry in the Town of Nassau despite the objections of a majority of Nassau residents who would be adversely affected by the environmental effects of the mine. (2) In addition to the dispute over the mine itself, these citizens faced another issue that came to equally define their struggle: whether to form a new local government--the Village of East Nassau--when the citizens perceived that their existing local government--the Town of Nassau--no longer seemed willing to address their concerns.

   The case in question is In re Lane Construction Co. (3) Beneath this innocuous-seeming title lies a story some might view as a "David and Goliath" tale of local citizens successfully resisting what they believed would be an unacceptable change in the essential character of their community. Others, however, will interpret the story differently--as evidence to support the view that New York's industrial peak lies in the past rather than the future. This Note will explore both sides of the Snake Mountain Mine dispute, and will focus in particular on the events surrounding the incorporation of the Village of East Nassau in Rensselaer County, New York.

   Regardless of one's viewpoint, the Lane case is remarkable for several reasons. For one, that because of the Lane mine issue, local citizens in Upstate New York made the decision for the first time in over thirty years to create more rather than less local government gives the story a degree of historical significance. (4) Second, the Lane decision is noteworthy simply because the corporation's mining permit ultimately was rejected; (5) this happens so infrequently as to be remarkable in-and-of-itself. (6) Third, the fact that the mining permit was rejected due to concerns as arguably ephemeral as the visual impact of the mine on the "character of the community"--especially in light of the fact that the NYSDEC had no standards for visual impacts at the time of the Lane decision (7)--distinguishes this story from similar ones with dissimilar endings. Indeed, many notable commentators have ranked the Lane decision among the most significant SEQRA decisions of recent years. (8) In the final analysis, though, the Lane story is almost undeniably a tale of the underdog victorious; it is this that makes the story seem to the author worth telling, and, hopefully, to the reader, worth reading.

   Part II will discuss the background of the dispute over the Lane Corporation's Snake Mountain mining permit application and will present an overview of the adjudicatory hearings and decisions associated with this application. (9) Part III will explore the founding of the Village of East Nassau, and will discuss the ways that its founders used village incorporation as a political tool in their opposition to an unwanted land use. (10) Part IV will discuss the specific reasons for NYSDEC's denial of the Snake Mountain mining application. (11) Finally, Part V will discuss the possibility of a resurgence of village incorporations in New York State after the East Nassau/Snake Mountain Mine dispute. (12)

2. BACKGROUND

   Citizens of New York State are subject to at least four layers of government: federal, state, county, and either town, village, or city. (13) In fact, there are at least "131 levels of government" in New York's Capital Region alone. (14) A monolithic state government and the literally thousands of municipal entities in New York intermesh in what must to citizens seem something of a Byzantine maze--especially for those seeking to petition "their government" for control over local land use issues. (15)

   Typically, these issues arise when businesses seek to develop new landfills, shopping malls, cellular telephone towers, or mines. (16) These and other controversial uses often trigger the "NIMBY" (17) phenomenon, whereby citizens resist the placement of these facilities in their backyards--regardless of the value of having new businesses in their communities.

   Citizens, often finding political strength in numbers, may achieve power through organization. During the Snake Mountain Mine dispute, some residents of nearby Columbia County and of the Rensselaer County hamlets of Brainard, East Nassau, and Hoags Corners formed citizen groups that played a key role in the mining permit dispute. These groups included the Nassau Union of Concerned Citizens (NUCC) and Citizens Against Lane Mine (CALM). (18) Other citizens, individually opposing the permit application, appeared as pro se intervenors. (19) Eight petitioners opposing the mine--including three local governments, NUCC, CALM, and several private individuals--were allowed to intervene in the Snake Mountain Mine adjudicative hearings. (20) But, in order for the citizen groups to achieve intervenor status, they first had to attain "party status" to participate in the Lane Mine permit hearings in any capacity. (21) The individuals and groups that actually attained party status were quite diverse, both in the scope of their interests and in the range of their respective legal sophistication. (22) However, they all had a common mission in their opposition to mining on Snake Mountain, and a common adversary in the Lane Corporation. Thus, the intervenors were allies--if only by virtue of the theory that "the enemy of my enemy is my friend."

   Several factors made Snake Mountain seem to the Lane Corporation ideal for mining, and thus worth the struggle with the citizen groups and others that opposed the mine. (23) Lane's geologists had identified vast quantities of Rensselaer Graywacke on Lane's Snake Mountain property. (24) In fact, Lane purchased the property over fifty years ago, planning to tap the site's hard rock reserves at some point when economic and other conditions warranted. (25) Lane apparently found enough accessible hard rock on the Snake Mountain property to support a mining operation there for 100 to 150 years. (26) Having invested in such long-term planning, Lane appeared willing to battle a political and administrative firestorm to open the mine. (27)

   Lane also believed that the amount of construction in nearby communities would create a market for crushed stone from the Snake Mountain Mine. (28) Lane planned to use the crushed stone to make blacktop in Massachusetts and also would have sold the stone in New York for various commercial and residential construction projects. (29) According to Lane, there is a high demand in these areas for "high quality ... crushed stone aggregates" (30) To support this contention, Lane cited in the Snake Mountain mining permit application a 1990 study addressing the relatively poor condition of New York State's roads and bridges. (31) Lane believed, too, that a lack of competing mines near Snake Mountain made it an ideal location for a hard rock quarry. (32) Crushed stone is rather expensive to transport because of its high density and weight. (33) Thus, opening a hard rock mine farther than approximately twenty miles from the end user's point-of-delivery raises the cost of crushed stone prohibitively. (34) For all these economic reasons, Lane saw Snake Mountain as an ideal location to open a hard rock mine. (35)

   In addition, there were a number of practical considerations driving the Lane Corporation. Obviously, there are a finite number of places where a company might conceivably open a 100-year hardrock mine. Lane happened to own Snake Mountain, which appeared nearly ideal for mining. (36) When choosing a mining site, one must consider various factors, including access to highways, the quality and quantity of stone available at the site, and the relative ease of extraction of the stone from the site. (37) Lane's geologists scored Snake Mountain very highly on all of these factors, especially with regard to the distribution of extractable rock at the site of the proposed mine. (38) Lane's geologists determined that "geological processes over the past several hundred million years" fortuitously had placed large quantities of usable stone close to the surface on Snake Mountain, readily accessible at several open rock faces--thus making mining economically feasible there. (39) Understandably, Lane wished to take advantage of the geologically beneficial features of its Snake Mountain property. Moreover, because of the inherently noisy and dusty nature of hard rock extraction and transportation, residents anywhere Lane might have selected for a mine would be unlikely to welcome its placement in their "backyards." Thus, Lane's persistence over the Snake Mountain mining proposal was reasonable, given the low population density and undeveloped character of the surrounding area. (40)

   Finally, Lane apparently was fixated on the Snake Mountain site mostly because of what Lane perceived as the relatively high "`permittability'" of opening a mining operation there. (41) In addition to securing a permit for the mine, Lane would have to contend with local zoning restrictions. (42) Because of the fact that the Snake Mountain site had a history of mining, Lane believed that securing approval for a mine there would be more feasible than at another site where mining had never taken place, under the theory that the new mine would simply be carrying on activities substantially similar to those conducted on the site traditionally.

   Lane probably would not have secured approval from the local zoning board for a new Snake Mountain Mine under a "`grandfather'" provision as a non-conforming use, (43) even though Lane's...