Preview
FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
ALBANY COUNTY
---------------------------- ---------------x
In the Matter of the Application of :
TOWN OF BROOKHAVEN, :
:
Petitioner, :
:
For an Order Pursuant to Article 78 of the Civil Practice :
Law and Rules and Agriculture and Markets Law § 37 :
:
-against- :
:
RICHARD A. BALL, Commissioner of the New York :
State Department of Agriculture and Markets, and :
DELEA SOD FARMS, INC., : Index No. 907862-22
:
Respondents, :
:
-and- :
:
CENTRAL PINE BARRENS JOINT PLANNING & :
POLICY COMMISSION, :
:
Additional Respondent :
Joined as a Necessary/ :
Affected Party Under :
CPLR 1001(a) :
------------------------------------------- x
ADMINISTRATIVE RECORD
VOLUME I OF VI
R001-R162
LETITIA JAMES
Attorney General of the State of New York
28 Liberty Street
New York, New York 10005
(212) 416-8271
Andrew G. Frank,
Assistant Attorney General
Of Counsel
February 14, 2023
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Note about e-mails: To avoid duplication and placing excessive material in the
administrative record, when there is a chain of e-mails,
the chain is included in the record once, with the date and
sender/recipients of the last e-mail in the chain used to
designate the chain in the index to the record. The earlier
e-mails in the chain are not separately included in the
record or listed in the index as individual documents.
INDEX TO ADMINISTRATIVE RECORD
VOLUME I
Date Description Page Range
November 22, 2022 Letter from Michael Latham to Town R001
Supervisor Edward Romaine
Enclosure: November 22, 2022 Department R002-R008
Order to Town of Brookhaven
October 13, 2022 E-mail from Judah Serfaty to Danielle R009-R012
Cordier
October 13, 2022 Notice of Petition R013-R014
October 13, 2022 Verified Petition R015-R041
September 16, E-mail from Richard DeLea to Frank R042-R043
2022 Beyrodt and Michael Latham
September 16, E-mail from Michael Latham to Richard R044
2022 DeLea and Frank Beyrodt
September 14, Letter from Michael Latham to Town R045-R049
2022 Supervisor Edward Romaine
April 7, 2022 E-mail from Danielle Cordier to John R050-R051
Armentano, Maryellen Boyle and Kathleen
Tylutki
April 6, 2022 E-mail from Maryellen Boyle to Kathleen R052
Tylutki and Danielle Cordier
April 6, 2022 Letter from Robert Calica to Michael R053-R054
Latham
April 4, 2022 E-mail from Philip Butler to Judah Serfaty, R055-R059
Danielle Cordier and Kathleen Tylutki
2 of 175
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
April 4, 2022 Affidavit of Kristen Scroope with R060-R069
Attachment
April 4, 2022 DeLea Sod Farms Memorandum of Law R070-R081
March 22, 2022 E-mail from John Armentano to Danielle R082-R086
Cordier, Judah Serfaty and Kathleen
Tylutki
March 17, 2022 E-mail from John Armentano to Judah R087-R090
Serfaty, Danielle Cordier and Kathleen
Tylutki
March 17, 2022 E-mail from Judah Serfaty to Danielle R091
Cordier and Kathleen Tylutki
March 17, 2022 Letter from Robert Calica to Michael R092
Latham
Enclosure: March 17, 2022 Town of R093-R119
Brookhaven Reply Memorandum of Law
March 11, 2022 E-mail from John Armentano to Danielle R120-R122
Cordier, Robert Calica and Kathleen Tylutki
March 11, 2022 Letter from John Armentano to Danielle R123
Cordier
Enclosure: March 11, 2022 DeLea Sod R124-R162
Farms Memorandum of Law with Appendix
VOLUME II
February 18, 2022 E-mail from John Armentano to Danielle R163-R165
Cordier, Robert Calica and Kathleen Tylutki
February 1, 2022 E-mail from John Armentano to Danielle R166-R167
Cordier, Jessica Lynch, Robert Calica,
Kathleen Tylutki and Town Attorney
Annette Eaderesto
January 28, 2022 E-mail from Jessica Lynch to Robert Calica, R168-R169
Kathleen Tylutki and Daniel Cordier
January 28, 2022 Town of Brookhaven’s Memorandum of Law R170-R201
2
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
January 20, 2022 E-mail from Robert Calica to Kathleen R202
Tylutki and Danielle Cordier
January 20, 2022 Letter from Robert Calica to Michael R203
Latham
December 21, 2021 E-mail from Jessica Lynch to Danielle R204-R205
Cordier and Kathleen Tylutki
December 20, 2021 E-mail from Jessica Lynch to Kathleen R206
Tylutki and Danielle Cordier
December 20, 2021 Letter from Robert Calica to Michael R207-R214
Latham
November 22, 2021 E-mail from John Armentano to Kathleen R215a-R215e
Tylutki, Richard DeLea, Frank Beyrodt
November 22, 2021 E-mail from Kathleen Tylutki to Robert R216
Calica
November 19, 2021 Letter from Michael Latham to Town R217-R222
Supervisor Edward Romaine
October 12, 2021 E-mail from Kathleen Tylutki to Frank R223-R225
Beyrodt
October 7, 2021 E-mail from Richard DeLea to Kathleen R226-R227
Tylutki
October 7, 2021 Invoices R228-R232
(transmitted)
June 14, 2021 E-mail from Robert Calica to Kathleen R233
Tylutki and Danielle Cordier
June 14, 2021 Letter from Robert Calica to Michael R234-R235
Latham
Enclosure: June 14, 2021 Decision and R236
Order on Motion
June 11, 2021 E-mail from John Armentano to Robert R237
Calica, Kathleen Tylutki and Danielle
Cordier
June 11, 2021 Letter from John Armentano to Michael R238-R239
Latham
June 9, 2021 E-mail from Kathleen Tylutki to Robert R240
Calica and John Armentano
3
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
June 9, 2021 Letter from Michael Latham to John R241-R242
Armentano and Robert Calica
June 9, 2021 E-mail from Robert Calica to Kathleen R243
Tylutki and Danielle Cordier
June 9, 2021 Letter from Robert Calica to Michael R244-R253
Latham with Enclosures
June 9, 2021 E-mail from Robert Calica to Kathleen R254
Tylutki and Danielle Cordier
June 9, 2021 Letter from Robert Calica to Michael R255-R286
Latham with Enclosures
June 7, 2021 E-mail from John Armentano to Danielle R287-R289
Cordier
June 7, 2021 Order to Show Cause (signed) R290-R292
VOLUME III
June 7, 2021 E-mail from John Armentano to Danielle R293-R298
Cordier
June 7, 2021 Letter from Robert Calica to Second R299-R300
Department Order to Show Cause Intake
Clerk
June 7, 2021 Order to Show Cause and Affirmation of R301-R375
Robert Calica with Exhibits
June 4, 2021 E-mail from Philip Butler to Commissioner R376
Richard Ball, Danielle Cordier and Kathleen
Tylutki
4
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Date Description Page Range
June 4, 2021 Letter from John Armentano to R377-R379
Commissioner Richard Ball
Exhibit A: May 25, 2021 Affidavit of R380-R392
Richard DeLea
Exhibit B: April 18, 2021 Photographs R393-R395
Exhibit C: April 28, 2021 Photographs R396-R399
Exhibit D: June 3, 2021 Notice of Appeal R400-R417
Exhibit E: June 4, 2021 e-mail from Jessica R418-R424
Lynch to John Armentano and Philip Butler
June 4, 2021 E-mail from John Armentano to Danielle R425-R427
Cordier
June 4, 2021 Order to Show Cause (unsigned) R428-R431
(transmitted)
June 4, 2021 Affirmation of Robert Calica (unsigned) R432-R442
(transmitted)
June 4, 2021 E-mail from John Armentano to Danielle R443-R444
Cordier and Kathleen Tylutki
June 4, 2021 Order to Show Cause (unsigned) R445-R448
(transmitted)
June 3, 2021 E-mail from John Armentano to Danielle R449
Cordier
June 3, 2021 Notice of Appeal R450-R466
June 3, 2021 E-mail from John Armentano to Danielle R467
Cordier
June 3, 2021 Notice of Entry R468-R479
June 3, 2021 E-mail from John Armentano to Danielle R480
Cordier
June 3, 2021 Amended Order R481-R482
June 2, 2021 E-mail from John Armentano to Danielle R483
Cordier
June 2, 2021 Order R484-R485
5
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Date Description Page Range
June 1, 2021 E-mail from John Armentano to Danielle R486-R489
Cordier, Richard DeLea and Frank Beyrodt
May 26, 2021 E-mail from John Armentano to Danielle R490-R492
Cordier
May 26, 2021 Memorandum of Law of DeLea Sod Farms R493-R519
May 21, 2021 E-mail from John Armentano to Danielle R520-R523
Cordier and Kathleen Tylutki
May 21, 2021 Interim Stipulation and Order R524-R525
(transmitted)
May 18, 2021
(signed)
May 21, 2021 Notes by Kathleen Tylutki of telephone call R526
with John Armentano, Frank Beyrodt,
Richard DeLea and Danielle Cordier
May 20, 2021 E-mail from John Armentano to Danielle R527
Cordier
May 20, 2021 Invoices R528-R532
May 19, 2021 E-mail from Danielle Cordier to John R533-R535
Armentano, Richard DeLea and Frank
Beyrodt
May 18, 2021, E-mail from John Armentano to Danielle R536-R537
Cordier, Richard DeLea, Frank Beyrodt
May 17, 2021 E-mail from John Armentano to John R538-R541
Rusnica and Danielle Cordier
May 17, 2021 Order to Show Cause (signed) R542-R544
May 14, 2021 E-mail from John Armentano to John R545-R548
Rusnica and Danielle Cordier
VOLUME IV
May 14, 2021 E-mail from Kathleen Tylutki to John R549-R552
Armentano, John Rusnica and Danielle
Cordier
May 14, 2021 Letter to from Kathleen Tylutki to John R553
Armentano
6
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
May 13, 2021 E-mail from John Armentano to R554-R555
Commissioner Richard Ball, Kathleen
Tylutki and Danielle Cordier
May 13, 2021 Order to Show Cause (unsigned) R556-R559
May 13, 2021 Emergency Affirmation of Robert Calica R560-R570
May 13, 2021 Affirmation of Town Attorney Annette R571-R576
Eaderesto
May 7, 2021 E-mail from Philip Butler to Commissioner R577-R578
Richard Ball
May 7, 2021 Letter from John Armentano to R579-R595
Commissioner Richard Ball with Exhibits
April 22, 2021 E-mail from Doreen Salera-Calabrese to R596
Danielle Cordier
April 22, 2021 E-mail from Doreen Salera-Calabrese to R597
Danielle Cordier
April 22, 2021 Letter from Robert Calica to Michael R598-R601
Latham
Exhibit A: April 18, 2021 photograph R602
Exhibit B: April 18, 2021 photograph R603
Exhibit C: April 18, 2021 photograph R604
Exhibit D: April 18, 2021 photograph R605
Exhibit E: April 18, 2021 photograph R606
VOLUME V
April 21, 2021 Notes by Kathleen Tylutki of telephone call R607
with Richard DeLea
April 21, 2021 E-mail from Richard DeLea to Kathleen R608-R609
Tylutki
April 5, 2021 E-mail from Robert Calica to Danielle R610
Cordier
7
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
April 5, 2021 E-mail from Doreen Salera-Calabrese to R611-R612
Danielle Cordier
April 5, 2021 Letter from Robert Calica to Michael R613-R614
Latham
April 5, 2021 Memorandum of Law of Town of R615-R628
Brookhaven
April 5, 2021 Affidavit of Luke Ormand R629-R635
Exhibit A: February 5, 2021 Letter from
Robert Calica to Commissioner Richard Ball R636-R647
Exhibit B: February 11, 2021 Letter from
Robert Calica to Commissioner Richard Ball R648-R651
Exhibit C: October 15, 2020 Town Attorney R652-R687
Memorandum of Law and Exhibits
Exhibit D: September 14, 2017 DeLea Sod R688-R689
Farms Conditions of Discharge
Exhibit E: Undated e-mail from Luke R690-R695
Ormand to Robert Calica and Judah Serfaty
with photographs
Exhibit F: May 27, 2020 e-mail from Luke R696-R706
Ormand to Robert Calica with photographs
Exhibit G: February 24, 2021 e-mail from R707-R713
Luke Ormand to Robert Calica with
photographs
Exhibit H: undated photographs R714-R719
VOLUME VI
March 30, 2021 Site inspection notes of Kathleen Tylutki R720-R722
March 30, 2021 Site inspection photos of Kathleen Tylutki R723-R749
8
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
March 25, 2021 E-mail from John Armentano to Kathleen R750
Tylutki
March 25, 2021, E-mail from Danielle Cordier to Doreen R751-R752
Salera-Calabrese
March 18, 2021 E-mail from Doreen Salera-Calabrese to R753
Danielle Cordier
March 18, 2021 Letter from Robert Calica to Danielle R754-R755
Cordier
February 19, 2021 E-mail from Kathleen Tylutki to Town R756-R758
Supervisor Edward Romaine, Robert Calica
and John Armentano
February 18, 2021 Letter from Michael Latham to Town R759-R760
Supervisor Edward Romaine
February 16, 2021 E-mail from John Armentano to R761-R762
Commissioner Richard Ball and Robert
Calica
February 11, 2021 E-mail from Robert Calica to Danielle R763
Cordier
February 11, 2021 E-mail from Doreen Salera-Calabrese to R764
Commissioner Richard Ball
February 11, 2021 Letter from Robert Calica to Commissioner R765-R767
Richard Ball
February 10, 2021 E-mail from John Armentano to Robert R768-R769
Calica and Commissioner Richard Ball
February 10, 2021 Letter from John Armentano to R770
Commissioner Richard Ball
February 5, 2021 E-mail from Doreen Salera-Calabrese to R771
Commissioner Richard Ball
9
10 of 175
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Date Description Page Range
February 5, 2021 Letter from Robert Calica to Commissioner R772-R782
Richard Ball
Exhibit A: March 18, 2020 Complaint of R783-R800
Town of Brookhaven with Exhibits
Exhibit B: October 15, 2020, Town Attorney R801-R836
Memorandum of Law and Exhibits
Exhibit C: September 14, 2017 DeLea Sod R837-R838
Farms Conditions of Discharge
January 21, 2021 E-mail from Robert Calica to Danielle R839-R840
Cordier and Kathleen Tylutki
January 15, 2021 E-mail from Robert Calica to Commissioner R841
Richard Ball
January 15, 2021 Letter from Robert Calica to Commissioner R842-R843
Richard Ball
Exhibit A: October 15, 2020, Town Attorney R844-R879
Memorandum of Law and Exhibits
January 6, 2021 E-mail from John Armentano to Jeffrey R880-R881
Kehoe and Kathleen Tylutki
January 6, 2021 Letter from John Armentano to R882-R912
Commissioner Richard Ball with Exhibits
July 24, 2020 Letter from Commissioner Richard Ball to R913-R916
John Armentano
10
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
ALBANY COUNTY
---------------------------- ---------------x
In the Matter of the Application of
TOWN OF BROOKHAVEN,
Petitioner,
For an Order Pursuant to Article 78 of the Civil Practice
Law and Rules and Agriculture and Markets Law§ 37
-against-
RICHARD A. BALL, Commissioner of the New York
State Department of Agriculture and Markets, and
DELEA SOD FARMS, INC., Index No. 907862-22
Respondents,
-and-
CENTRAL PINE BARRENS JOINT PLANNING &
POLICY COMMISSION,
Additional Respondent
Joined as a Necessary/
Affected Party Under
CPLR lO0l(a)
------------------------------------------- X
CERTIFICATION PURSUANT TO C_P,L.R § 7804(e)
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
I, Danielle C. Cordier, an Associate Attorney employed by respondent New
York State Department of Agriculture and Markets (the "Department"), do hereby
certify, pursuant to C.P.L.R. § 7804(e), that the documents contained in this index
constitute the record of the administrative proceedings for the Department's
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
adoption of the September 14, 2022 Final Det ermination and th e November 22,
2022 Order challenged in the above-r efere_;
na \· -:. la
c-e_;;,,,.~ o-
L:t!E'.l.3,t, ,L•
c..::
. -----'=------'- ---
Danielle C. Cordier
bruar 2023
NICOLE PERSAUD
Notary Public, State of New York
Reg.No.01PE6248087
. Qualified in Kings County /) ~
Comm,ss,on Expires September 12, 2~
2
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
4
w Agriculture
RK
~TE and Markets
KATHY HOCHUL RICHARD A. BALL
Governor Commissioner
November 22, 2022
Hon. Supervisor Ed Romaine
Town of Brookhaven
1 Independence Hill
Farmingville, NY 11738
Dear Hon. Supervisor Romaine:
The Department of Agriculture and Markets hereby serves upon the Town of
Brookhaven a certified copy of the enclosed Order to comply with the provisions of
Agriculture and Markets Law (AML) §305-a(1). The decision of the Commissioner is final,
unless within 30 days the Town institutes a proceeding to review the decision in the manner
provided by Article 78 of the Civil Practice Law and Rules. Notwithstanding that the Town
has commenced litigation and challenged the Department's September 14, 2022 letter
determination, please acknowledge receipt of the Order, and provide direction as to whether
the Town will comply with the Order.
If you require further information or would like to discuss the terms of the Order, you
may contact me at (518) 457-3738.
~/£ku
Michael J. Latham
Director
Enc.
cc: Danielle Cordier, Senior Attorney, Dept. of A&M
Division of Land and Water Resources I 1OB Airline Dr. Albany, N.Y., 12235 I 518/457-3738 Iwww.agriculture.ny.gov
R001
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NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
STATE OF NEW YORK
DEPARTMENT OF AGRICULTURE AND MARKETS
-------- -------- -------- -------- -------- ---
In the Matter of Compelling Compliance with the Provisions ORDER
of Section 305-a(1) of the Agriculture and Markets Law
------------------
TO: The Town of Brookhaven
1 Independence Hill
Farmingville, NY 11738
Attn: Hon. Town Supervisor Ed Romaine
WHEREAS, the Department, upon receipt of Delea Sod Farm, Inc., ("Delea")
Agriculture and Markets Law (AML) Section 305-a review request, has undertaken a
review of the Town of Brookhaven Zoning Code and its administration as relates to
Delea; and
WHEREAS, the Department found that Delea is a farm operation located within
Suffolk County Agricultural District No. 3 and the Department has jurisdiction under AML
305-a; and
WHEREAS, the Department has conducted an investigation, including a site
visit, and has reviewed submissions and correspondence and accompanying materials
from the farm operation, its Counsel, John Armentano, Esq., and reviewed
correspondence together with accompanying materials submitted by Robert Calica,
Esq., Special Counsel for the Town of Brookhaven; and
WHEREAS, by its November 19, 2021 Interim Determination, and its Final
Determination, dated September 14, 2022, the Department found that the Town of
Brookhaven Zoning Code, and its administration, unreasonably restricts Delea's farm
operation, which is located within a county adopted, State certified agricultural district;
and
WHEREAS, the Town of Brookhaven did not submit information demonstrating
any public health or safety threat in connection with the prohibition of the sale of mulch,
compost and items incidental to the installation of sod; and
WHEREAS, the Department has issued its Final Determination, ruling that the
Town of Brookhaven local law and its administration violate Section 305-a(1) of the
Agriculture and Markets Law; it is hereby
R002
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ORDERED, pursuant to the provisions of Section 36 of the Agriculture and
Markets Law, that the Town of Brookhaven immediately comply with the provisions of
Section 305-a(1) of the Agriculture and Markets Law; and it is further
ORDERED, that this Order shall take effect immediately upon the service of a
certified copy thereof on the Town Supervisor of the Town of Brookhaven; and ii is
further
ORDERED, that the Town of Brookhaven shall notify the Department within ten
business days of the service of the Final Determination and Order whether the Order is
accepted and will be obeyed.
Dated a n d =~is.Jl.~
day of Alo ~22
at Colonie, NY
RICHARD A. BALL
Commissioner of Agriculture and
Markets of the State of New York
Pursuant to Agric. & Mkts. Law Section
23, I ht11ily certify that this doc:ument
consietil'l' of _L pages is a truo copy
of the erilioal thereof on file with Iha
Department of Agriculture and ar ets.
Signatllle~ _______
TiUe: Director Date:_ lf:~J.-~
--, .... £. ..
R003
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4 WYORK
JEOF
ORTUNITV.
KATHY HOCHUL
Agriculture
and Markets
RICHARD A. BALl
Governor Commissioner
September 14, 2022
Hon. Edward Romaine, Supervisor
Town of Brookhaven
1 Independence Hill
Farmingville, NY 11738
Re: AML §305-a(1) Review of the Town of Brookhaven's Zoning Ordinance and its
application to Delea Sod Farm, Inc., Suffolk County Agricultural District No. 3
Dear Supervisor Romaine:
The Department has completed its review of the Town of Brookhaven's Zoning Code as
administered with respect to Delea Sod Farm, Inc., ("Delea') for compliance with
Agriculture and Markets Law (AML) §305-a(1).
For the reasons set forth below, as well as those set forth in the Department's November
19, 2021 letter, the Department finds that the Town of Brookhaven's Zoning Code and its
administration unreasonably restricts Delea's farm operation, in violation of AML §305-
a(1 ). Further, that the Town has not demonstrated that the public health or safety is
threatened by the farm operation's proposed retail sale and bulk sale of mulch, topsoil,
fertilizer and other products that are utilized in the installation of on-farm produced nursery
stock (sod).
BACKGROUND
The Department concluded in its November 19, 2021 letter to the Town that restricting
Delea's retail sale and bulk sale of mulch, topsoil, fertilizer and other products that are
utilized in the installation of on-farm produced nursery stock, would unreasonably restrict
the farm operation, in possible violation of AML §305-a. The Department requested that
the Town provide any documentation or evidence that the public health or safety is
threatened by Delea's sale of mulch, topsoil, fertilizer, and other products utilized in the
installation of its sod. The Town's submissions dated January 28, 2022 and March 17,
2022, offer no public health or safety documentation or evidence.
Department's AML §305-a authority
AML Article 25-AA (Agricultural Districts Law) forms the cornerstone of the State's
agricultural protection program and implements the New York State constitutional
R004
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Hon. Edward Romaine; Supervisor
Town of Brookhaven
21Pa.ge
directive to preserve and protect the State's. agriculturai lands as important State
resources [N.Y. Constitution Art. XIV, §4J. AML §305-a prohibits local governments from
enacting and administering laws that would unreasonably restrict farm operations within
a coi.mty-adopted, State certified agricultural district, unless. the locality can show a threat
0
to the public health orsafety.AML §305-a applies to all local governments and addres.ses
a matter of State concern - the preservation offarmland; and local laws must be consistent
with its provisions. Additionally, Town Law §283-a mirrors the language. ofAML §305-a,
demonstrating further support for the Legislature's intent. A local law may be superseded
.by AML §305~a when the Department determines that the law unreasonably restricts or
regulates farm operations within agriculturai dis.tricts in contraventicii1 of the purpoi;;es of
AMLArticle 25-M, Agricultural Districts, unless the local government can demonstrate
that the public health or safety is threatened [Town of Lysander v. Hafner, 96 N.Y.. 2d 558,
733 N.Y.S.2d 358 (2001)}. AML §305-a(1) vests the Department With the authority to take
action against 1.aws which. unreasonably restrict cir regulate farm operations, and it is the.
local government that has the burden of demonstrating a threat to the public he.alth or
safety to overcome a Department finding that a local law unreasonably restricts a farm
operation. $ee In the Matter of Village of Lacona v, New York State Department of
Agriculture and Markets, 51 A.O. 3d1319, 858 N.Y.S. 2d 833 (3rd Dept. 2008). If the local
government cannot dernoiJst.r.ite that the public health of safety is threatened, then the
Department may determine that the restriction violates AML §305-a(1) and ta.ke
enforcement measures.
The Town, in its Memorandum of Law dated January 28; 2022, contends that the
Department does not have the authority to preempt Brookhaven Town Code §§85s378
and .85-925. It argues that AML§305-a(1) is a "general laW,"and that it mustyieldW a
"specific law," in this case the Long Island Pine Barrens Protection Act oft993,
incorporated in the Environmental Conservation Law (ECL); or in the alternative be
applied in harmony with the Long Island Pine Barrens Protection Act (LI Pine Barrens
Act).
It is a basic tenet of New York's hotne rule provisions that a local law which conflicts
with a state statute must yield to the state statute. Further, the express ~nguage of AML
§305-a, a general. law of state-wide applicability, authorizes the Department to
supersede Linteasonab[y restrictive local. The Town argues that its implementation of
the Central Pine Barrens Comprehensive Land Use Plan through its zoning law
somehow divests theDepartment of its statutory power to review and supersede those
zoning laws that it finds unreasonably reatrictions on farm operations in agricultural
districts. !t does not. EGL 57-0107 (13) provides that the use of land for agriculture or
horticulture does not constitute development for the purposes cif the Pine Barrens Act.
The EGL 57-0107(14) definition of agriculture or horticult!-)re is exceedingly broad,
covering "any production of plants or animals useful to man .... " AML §305"a's
protection of agriculture is broad, covering the cultivation, sale, distribution and
marketing of agricultural products. TheOil, mulch and potting soil .appears to be in an amount consistent with the .size and scope
of its farm operation. The Department's protections relate to the sale of on-farm materials
(!>od). As such, the sale of mulch concurrently with the sale of sod which is utilized in the
installation of sod, or which is incidental and c_ontributes to the marketing ofh~rsery stock,
is part of the farm operation.
In the alternative, the lawn argues that the Department should condition any of its
approvals or actions to prohibiting the on-site production of any "colored mulch, topsoil,
stone, fertilizer and grass seed" arid limiting "the· sale. of compost, topsoil, mulch, wood
products, stone, bagged fertilizer and .grass seed" to only minor limits less than 5% o{
Delea's sates whali comp.ired to the sale of sod.. The Department does not· regulate or
proscribe limits or conditions on farm operations. The TciWn; however, may regulate a
farm operations' c1ctivities that are not AML §305-a protected on-farm activities and
activities which are not consistent with the size and scope of that farm operation.
CONCLUSION
Bas.ad upon its review in this matter; including the reasons set forth ih its November 19,
2021 letter arid herein, and the fact that the Town has not demonstrated that .there is a
threat to public health or safety from Delaa's s1;1le of mulch; th.e Department concludes
that the town of Brookhaven's Zoning Code, and its administration by the Town,
unreasonably restricts the farm operation in violation of AML §305•a(1), by restricting
Delea;s proposed sale of mulch; topsoil and other products, that are utilized in the
installation of sod orwhich are incidental and contribute to the. marketing .of nursery stock.
Th.e bepartment requests that theToW11 confirm within 30 days that such requirements
Division of Land and Water"Resources 1·106 Alrtine i:k Albany,•N.Y'., 12235.I 5181457-3738 lwww,agrioullure:ny.go_v
R007
20 of 175
FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
Hon. Edward Romaine, Superyisor
Town of Broqkhaven
5fPage
will not be imposed on the farm operation. If steps to comply are not taken, the
Department may take appropriat'1) action to enfon~e the provisions of AML §305-a (1).
lfyou have ariy questiohs, Kate Tylutki, EnvironmentalAnalyst,·may be contacted at (518)
457•2851 conceming the. agriculturalissues identified. If Mrc Calica has any questions,
he should contact Department Senior Attorney Danielle Cordier, Esq., at (518) 457-2449,
Sincerely,
IJ✓u//~
Michael J. Latham
Director
cc: Richard Delea, Delea Sod Farms; Inc.
Frank Beyrodt, Delea Sod. Farms, lr1c..
John C. Armentano, Esq., Attorney for Delea Sod Farm, Inc.
Annette Eaderesto, Esq., Counsel, Town of Brookhaven
Robert M. Calica, Esq,, Special Counsel; Town of Brookhaven
Ken Schmitt, Chi1ir, Suffolk County AFPB
Kate Tylutki, Dept. Of A&M
Danielle Cordier, Esq., Dept ofA&M
Division o.flond and Water Resources 11oe Airl!ne Dr. Al~any, NY.. 122351.518/457,37381www.egMculture.ny.gov
R008
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FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023
From: Judah Serfaty
To: Cordier, Danielle (AGRICULTURE)
Cc: Tylutki, Kathleen (AGRICULTURE); Rob Calica
Subject: RE: AML §305-a Review of Delea Sod Farms, Inc.
Date: Thursday, October 13, 2022 3:56:04 PM
You don't often get email from judah@rcblaw.com. Learn why this is important
ATTENTION: This email came from an external source. Do not open attachments or click on links from unknown
senders or unexpected emails.
Thanks and understood.
Regards,
Judah
Judah Serfaty
ROSENBERG CALICA & BIRNEY LLP
Preview
FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 SUPREME COURT OF THE STATE OF NEW YORK ALBANY COUNTY ---------------------------- ---------------x In the Matter of the Application of : TOWN OF BROOKHAVEN, : : Petitioner, : : For an Order Pursuant to Article 78 of the Civil Practice : Law and Rules and Agriculture and Markets Law § 37 : : -against- : : RICHARD A. BALL, Commissioner of the New York : State Department of Agriculture and Markets, and : DELEA SOD FARMS, INC., : Index No. 907862-22 : Respondents, : : -and- : : CENTRAL PINE BARRENS JOINT PLANNING & : POLICY COMMISSION, : : Additional Respondent : Joined as a Necessary/ : Affected Party Under : CPLR 1001(a) : ------------------------------------------- x ADMINISTRATIVE RECORD VOLUME I OF VI R001-R162 LETITIA JAMES Attorney General of the State of New York 28 Liberty Street New York, New York 10005 (212) 416-8271 Andrew G. Frank, Assistant Attorney General Of Counsel February 14, 2023 1 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Note about e-mails: To avoid duplication and placing excessive material in the administrative record, when there is a chain of e-mails, the chain is included in the record once, with the date and sender/recipients of the last e-mail in the chain used to designate the chain in the index to the record. The earlier e-mails in the chain are not separately included in the record or listed in the index as individual documents. INDEX TO ADMINISTRATIVE RECORD VOLUME I Date Description Page Range November 22, 2022 Letter from Michael Latham to Town R001 Supervisor Edward Romaine Enclosure: November 22, 2022 Department R002-R008 Order to Town of Brookhaven October 13, 2022 E-mail from Judah Serfaty to Danielle R009-R012 Cordier October 13, 2022 Notice of Petition R013-R014 October 13, 2022 Verified Petition R015-R041 September 16, E-mail from Richard DeLea to Frank R042-R043 2022 Beyrodt and Michael Latham September 16, E-mail from Michael Latham to Richard R044 2022 DeLea and Frank Beyrodt September 14, Letter from Michael Latham to Town R045-R049 2022 Supervisor Edward Romaine April 7, 2022 E-mail from Danielle Cordier to John R050-R051 Armentano, Maryellen Boyle and Kathleen Tylutki April 6, 2022 E-mail from Maryellen Boyle to Kathleen R052 Tylutki and Danielle Cordier April 6, 2022 Letter from Robert Calica to Michael R053-R054 Latham April 4, 2022 E-mail from Philip Butler to Judah Serfaty, R055-R059 Danielle Cordier and Kathleen Tylutki 2 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range April 4, 2022 Affidavit of Kristen Scroope with R060-R069 Attachment April 4, 2022 DeLea Sod Farms Memorandum of Law R070-R081 March 22, 2022 E-mail from John Armentano to Danielle R082-R086 Cordier, Judah Serfaty and Kathleen Tylutki March 17, 2022 E-mail from John Armentano to Judah R087-R090 Serfaty, Danielle Cordier and Kathleen Tylutki March 17, 2022 E-mail from Judah Serfaty to Danielle R091 Cordier and Kathleen Tylutki March 17, 2022 Letter from Robert Calica to Michael R092 Latham Enclosure: March 17, 2022 Town of R093-R119 Brookhaven Reply Memorandum of Law March 11, 2022 E-mail from John Armentano to Danielle R120-R122 Cordier, Robert Calica and Kathleen Tylutki March 11, 2022 Letter from John Armentano to Danielle R123 Cordier Enclosure: March 11, 2022 DeLea Sod R124-R162 Farms Memorandum of Law with Appendix VOLUME II February 18, 2022 E-mail from John Armentano to Danielle R163-R165 Cordier, Robert Calica and Kathleen Tylutki February 1, 2022 E-mail from John Armentano to Danielle R166-R167 Cordier, Jessica Lynch, Robert Calica, Kathleen Tylutki and Town Attorney Annette Eaderesto January 28, 2022 E-mail from Jessica Lynch to Robert Calica, R168-R169 Kathleen Tylutki and Daniel Cordier January 28, 2022 Town of Brookhaven’s Memorandum of Law R170-R201 2 3 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range January 20, 2022 E-mail from Robert Calica to Kathleen R202 Tylutki and Danielle Cordier January 20, 2022 Letter from Robert Calica to Michael R203 Latham December 21, 2021 E-mail from Jessica Lynch to Danielle R204-R205 Cordier and Kathleen Tylutki December 20, 2021 E-mail from Jessica Lynch to Kathleen R206 Tylutki and Danielle Cordier December 20, 2021 Letter from Robert Calica to Michael R207-R214 Latham November 22, 2021 E-mail from John Armentano to Kathleen R215a-R215e Tylutki, Richard DeLea, Frank Beyrodt November 22, 2021 E-mail from Kathleen Tylutki to Robert R216 Calica November 19, 2021 Letter from Michael Latham to Town R217-R222 Supervisor Edward Romaine October 12, 2021 E-mail from Kathleen Tylutki to Frank R223-R225 Beyrodt October 7, 2021 E-mail from Richard DeLea to Kathleen R226-R227 Tylutki October 7, 2021 Invoices R228-R232 (transmitted) June 14, 2021 E-mail from Robert Calica to Kathleen R233 Tylutki and Danielle Cordier June 14, 2021 Letter from Robert Calica to Michael R234-R235 Latham Enclosure: June 14, 2021 Decision and R236 Order on Motion June 11, 2021 E-mail from John Armentano to Robert R237 Calica, Kathleen Tylutki and Danielle Cordier June 11, 2021 Letter from John Armentano to Michael R238-R239 Latham June 9, 2021 E-mail from Kathleen Tylutki to Robert R240 Calica and John Armentano 3 4 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range June 9, 2021 Letter from Michael Latham to John R241-R242 Armentano and Robert Calica June 9, 2021 E-mail from Robert Calica to Kathleen R243 Tylutki and Danielle Cordier June 9, 2021 Letter from Robert Calica to Michael R244-R253 Latham with Enclosures June 9, 2021 E-mail from Robert Calica to Kathleen R254 Tylutki and Danielle Cordier June 9, 2021 Letter from Robert Calica to Michael R255-R286 Latham with Enclosures June 7, 2021 E-mail from John Armentano to Danielle R287-R289 Cordier June 7, 2021 Order to Show Cause (signed) R290-R292 VOLUME III June 7, 2021 E-mail from John Armentano to Danielle R293-R298 Cordier June 7, 2021 Letter from Robert Calica to Second R299-R300 Department Order to Show Cause Intake Clerk June 7, 2021 Order to Show Cause and Affirmation of R301-R375 Robert Calica with Exhibits June 4, 2021 E-mail from Philip Butler to Commissioner R376 Richard Ball, Danielle Cordier and Kathleen Tylutki 4 5 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range June 4, 2021 Letter from John Armentano to R377-R379 Commissioner Richard Ball Exhibit A: May 25, 2021 Affidavit of R380-R392 Richard DeLea Exhibit B: April 18, 2021 Photographs R393-R395 Exhibit C: April 28, 2021 Photographs R396-R399 Exhibit D: June 3, 2021 Notice of Appeal R400-R417 Exhibit E: June 4, 2021 e-mail from Jessica R418-R424 Lynch to John Armentano and Philip Butler June 4, 2021 E-mail from John Armentano to Danielle R425-R427 Cordier June 4, 2021 Order to Show Cause (unsigned) R428-R431 (transmitted) June 4, 2021 Affirmation of Robert Calica (unsigned) R432-R442 (transmitted) June 4, 2021 E-mail from John Armentano to Danielle R443-R444 Cordier and Kathleen Tylutki June 4, 2021 Order to Show Cause (unsigned) R445-R448 (transmitted) June 3, 2021 E-mail from John Armentano to Danielle R449 Cordier June 3, 2021 Notice of Appeal R450-R466 June 3, 2021 E-mail from John Armentano to Danielle R467 Cordier June 3, 2021 Notice of Entry R468-R479 June 3, 2021 E-mail from John Armentano to Danielle R480 Cordier June 3, 2021 Amended Order R481-R482 June 2, 2021 E-mail from John Armentano to Danielle R483 Cordier June 2, 2021 Order R484-R485 5 6 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range June 1, 2021 E-mail from John Armentano to Danielle R486-R489 Cordier, Richard DeLea and Frank Beyrodt May 26, 2021 E-mail from John Armentano to Danielle R490-R492 Cordier May 26, 2021 Memorandum of Law of DeLea Sod Farms R493-R519 May 21, 2021 E-mail from John Armentano to Danielle R520-R523 Cordier and Kathleen Tylutki May 21, 2021 Interim Stipulation and Order R524-R525 (transmitted) May 18, 2021 (signed) May 21, 2021 Notes by Kathleen Tylutki of telephone call R526 with John Armentano, Frank Beyrodt, Richard DeLea and Danielle Cordier May 20, 2021 E-mail from John Armentano to Danielle R527 Cordier May 20, 2021 Invoices R528-R532 May 19, 2021 E-mail from Danielle Cordier to John R533-R535 Armentano, Richard DeLea and Frank Beyrodt May 18, 2021, E-mail from John Armentano to Danielle R536-R537 Cordier, Richard DeLea, Frank Beyrodt May 17, 2021 E-mail from John Armentano to John R538-R541 Rusnica and Danielle Cordier May 17, 2021 Order to Show Cause (signed) R542-R544 May 14, 2021 E-mail from John Armentano to John R545-R548 Rusnica and Danielle Cordier VOLUME IV May 14, 2021 E-mail from Kathleen Tylutki to John R549-R552 Armentano, John Rusnica and Danielle Cordier May 14, 2021 Letter to from Kathleen Tylutki to John R553 Armentano 6 7 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range May 13, 2021 E-mail from John Armentano to R554-R555 Commissioner Richard Ball, Kathleen Tylutki and Danielle Cordier May 13, 2021 Order to Show Cause (unsigned) R556-R559 May 13, 2021 Emergency Affirmation of Robert Calica R560-R570 May 13, 2021 Affirmation of Town Attorney Annette R571-R576 Eaderesto May 7, 2021 E-mail from Philip Butler to Commissioner R577-R578 Richard Ball May 7, 2021 Letter from John Armentano to R579-R595 Commissioner Richard Ball with Exhibits April 22, 2021 E-mail from Doreen Salera-Calabrese to R596 Danielle Cordier April 22, 2021 E-mail from Doreen Salera-Calabrese to R597 Danielle Cordier April 22, 2021 Letter from Robert Calica to Michael R598-R601 Latham Exhibit A: April 18, 2021 photograph R602 Exhibit B: April 18, 2021 photograph R603 Exhibit C: April 18, 2021 photograph R604 Exhibit D: April 18, 2021 photograph R605 Exhibit E: April 18, 2021 photograph R606 VOLUME V April 21, 2021 Notes by Kathleen Tylutki of telephone call R607 with Richard DeLea April 21, 2021 E-mail from Richard DeLea to Kathleen R608-R609 Tylutki April 5, 2021 E-mail from Robert Calica to Danielle R610 Cordier 7 8 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range April 5, 2021 E-mail from Doreen Salera-Calabrese to R611-R612 Danielle Cordier April 5, 2021 Letter from Robert Calica to Michael R613-R614 Latham April 5, 2021 Memorandum of Law of Town of R615-R628 Brookhaven April 5, 2021 Affidavit of Luke Ormand R629-R635 Exhibit A: February 5, 2021 Letter from Robert Calica to Commissioner Richard Ball R636-R647 Exhibit B: February 11, 2021 Letter from Robert Calica to Commissioner Richard Ball R648-R651 Exhibit C: October 15, 2020 Town Attorney R652-R687 Memorandum of Law and Exhibits Exhibit D: September 14, 2017 DeLea Sod R688-R689 Farms Conditions of Discharge Exhibit E: Undated e-mail from Luke R690-R695 Ormand to Robert Calica and Judah Serfaty with photographs Exhibit F: May 27, 2020 e-mail from Luke R696-R706 Ormand to Robert Calica with photographs Exhibit G: February 24, 2021 e-mail from R707-R713 Luke Ormand to Robert Calica with photographs Exhibit H: undated photographs R714-R719 VOLUME VI March 30, 2021 Site inspection notes of Kathleen Tylutki R720-R722 March 30, 2021 Site inspection photos of Kathleen Tylutki R723-R749 8 9 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range March 25, 2021 E-mail from John Armentano to Kathleen R750 Tylutki March 25, 2021, E-mail from Danielle Cordier to Doreen R751-R752 Salera-Calabrese March 18, 2021 E-mail from Doreen Salera-Calabrese to R753 Danielle Cordier March 18, 2021 Letter from Robert Calica to Danielle R754-R755 Cordier February 19, 2021 E-mail from Kathleen Tylutki to Town R756-R758 Supervisor Edward Romaine, Robert Calica and John Armentano February 18, 2021 Letter from Michael Latham to Town R759-R760 Supervisor Edward Romaine February 16, 2021 E-mail from John Armentano to R761-R762 Commissioner Richard Ball and Robert Calica February 11, 2021 E-mail from Robert Calica to Danielle R763 Cordier February 11, 2021 E-mail from Doreen Salera-Calabrese to R764 Commissioner Richard Ball February 11, 2021 Letter from Robert Calica to Commissioner R765-R767 Richard Ball February 10, 2021 E-mail from John Armentano to Robert R768-R769 Calica and Commissioner Richard Ball February 10, 2021 Letter from John Armentano to R770 Commissioner Richard Ball February 5, 2021 E-mail from Doreen Salera-Calabrese to R771 Commissioner Richard Ball 9 10 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Date Description Page Range February 5, 2021 Letter from Robert Calica to Commissioner R772-R782 Richard Ball Exhibit A: March 18, 2020 Complaint of R783-R800 Town of Brookhaven with Exhibits Exhibit B: October 15, 2020, Town Attorney R801-R836 Memorandum of Law and Exhibits Exhibit C: September 14, 2017 DeLea Sod R837-R838 Farms Conditions of Discharge January 21, 2021 E-mail from Robert Calica to Danielle R839-R840 Cordier and Kathleen Tylutki January 15, 2021 E-mail from Robert Calica to Commissioner R841 Richard Ball January 15, 2021 Letter from Robert Calica to Commissioner R842-R843 Richard Ball Exhibit A: October 15, 2020, Town Attorney R844-R879 Memorandum of Law and Exhibits January 6, 2021 E-mail from John Armentano to Jeffrey R880-R881 Kehoe and Kathleen Tylutki January 6, 2021 Letter from John Armentano to R882-R912 Commissioner Richard Ball with Exhibits July 24, 2020 Letter from Commissioner Richard Ball to R913-R916 John Armentano 10 11 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 SUPREME COURT OF THE STATE OF NEW YORK ALBANY COUNTY ---------------------------- ---------------x In the Matter of the Application of TOWN OF BROOKHAVEN, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules and Agriculture and Markets Law§ 37 -against- RICHARD A. BALL, Commissioner of the New York State Department of Agriculture and Markets, and DELEA SOD FARMS, INC., Index No. 907862-22 Respondents, -and- CENTRAL PINE BARRENS JOINT PLANNING & POLICY COMMISSION, Additional Respondent Joined as a Necessary/ Affected Party Under CPLR lO0l(a) ------------------------------------------- X CERTIFICATION PURSUANT TO C_P,L.R § 7804(e) STATE OF NEW YORK ) ) ss.: COUNTY OF ALBANY ) I, Danielle C. Cordier, an Associate Attorney employed by respondent New York State Department of Agriculture and Markets (the "Department"), do hereby certify, pursuant to C.P.L.R. § 7804(e), that the documents contained in this index constitute the record of the administrative proceedings for the Department's 12 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 adoption of the September 14, 2022 Final Det ermination and th e November 22, 2022 Order challenged in the above-r efere_; na \· -:. la c-e_;;,,,.~ o- L:t!E'.l.3,t, ,L• c..:: . -----'=------'- --- Danielle C. Cordier bruar 2023 NICOLE PERSAUD Notary Public, State of New York Reg.No.01PE6248087 . Qualified in Kings County /) ~ Comm,ss,on Expires September 12, 2~ 2 13 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 4 w Agriculture RK ~TE and Markets KATHY HOCHUL RICHARD A. BALL Governor Commissioner November 22, 2022 Hon. Supervisor Ed Romaine Town of Brookhaven 1 Independence Hill Farmingville, NY 11738 Dear Hon. Supervisor Romaine: The Department of Agriculture and Markets hereby serves upon the Town of Brookhaven a certified copy of the enclosed Order to comply with the provisions of Agriculture and Markets Law (AML) §305-a(1). The decision of the Commissioner is final, unless within 30 days the Town institutes a proceeding to review the decision in the manner provided by Article 78 of the Civil Practice Law and Rules. Notwithstanding that the Town has commenced litigation and challenged the Department's September 14, 2022 letter determination, please acknowledge receipt of the Order, and provide direction as to whether the Town will comply with the Order. If you require further information or would like to discuss the terms of the Order, you may contact me at (518) 457-3738. ~/£ku Michael J. Latham Director Enc. cc: Danielle Cordier, Senior Attorney, Dept. of A&M Division of Land and Water Resources I 1OB Airline Dr. Albany, N.Y., 12235 I 518/457-3738 Iwww.agriculture.ny.gov R001 14 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 STATE OF NEW YORK DEPARTMENT OF AGRICULTURE AND MARKETS -------- -------- -------- -------- -------- --- In the Matter of Compelling Compliance with the Provisions ORDER of Section 305-a(1) of the Agriculture and Markets Law ------------------ TO: The Town of Brookhaven 1 Independence Hill Farmingville, NY 11738 Attn: Hon. Town Supervisor Ed Romaine WHEREAS, the Department, upon receipt of Delea Sod Farm, Inc., ("Delea") Agriculture and Markets Law (AML) Section 305-a review request, has undertaken a review of the Town of Brookhaven Zoning Code and its administration as relates to Delea; and WHEREAS, the Department found that Delea is a farm operation located within Suffolk County Agricultural District No. 3 and the Department has jurisdiction under AML 305-a; and WHEREAS, the Department has conducted an investigation, including a site visit, and has reviewed submissions and correspondence and accompanying materials from the farm operation, its Counsel, John Armentano, Esq., and reviewed correspondence together with accompanying materials submitted by Robert Calica, Esq., Special Counsel for the Town of Brookhaven; and WHEREAS, by its November 19, 2021 Interim Determination, and its Final Determination, dated September 14, 2022, the Department found that the Town of Brookhaven Zoning Code, and its administration, unreasonably restricts Delea's farm operation, which is located within a county adopted, State certified agricultural district; and WHEREAS, the Town of Brookhaven did not submit information demonstrating any public health or safety threat in connection with the prohibition of the sale of mulch, compost and items incidental to the installation of sod; and WHEREAS, the Department has issued its Final Determination, ruling that the Town of Brookhaven local law and its administration violate Section 305-a(1) of the Agriculture and Markets Law; it is hereby R002 15 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 ORDERED, pursuant to the provisions of Section 36 of the Agriculture and Markets Law, that the Town of Brookhaven immediately comply with the provisions of Section 305-a(1) of the Agriculture and Markets Law; and it is further ORDERED, that this Order shall take effect immediately upon the service of a certified copy thereof on the Town Supervisor of the Town of Brookhaven; and ii is further ORDERED, that the Town of Brookhaven shall notify the Department within ten business days of the service of the Final Determination and Order whether the Order is accepted and will be obeyed. Dated a n d =~is.Jl.~ day of Alo ~22 at Colonie, NY RICHARD A. BALL Commissioner of Agriculture and Markets of the State of New York Pursuant to Agric. & Mkts. Law Section 23, I ht11ily certify that this doc:ument consietil'l' of _L pages is a truo copy of the erilioal thereof on file with Iha Department of Agriculture and ar ets. Signatllle~ _______ TiUe: Director Date:_ lf:~J.-~ --, .... £. .. R003 16 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 4 WYORK JEOF ORTUNITV. KATHY HOCHUL Agriculture and Markets RICHARD A. BALl Governor Commissioner September 14, 2022 Hon. Edward Romaine, Supervisor Town of Brookhaven 1 Independence Hill Farmingville, NY 11738 Re: AML §305-a(1) Review of the Town of Brookhaven's Zoning Ordinance and its application to Delea Sod Farm, Inc., Suffolk County Agricultural District No. 3 Dear Supervisor Romaine: The Department has completed its review of the Town of Brookhaven's Zoning Code as administered with respect to Delea Sod Farm, Inc., ("Delea') for compliance with Agriculture and Markets Law (AML) §305-a(1). For the reasons set forth below, as well as those set forth in the Department's November 19, 2021 letter, the Department finds that the Town of Brookhaven's Zoning Code and its administration unreasonably restricts Delea's farm operation, in violation of AML §305- a(1 ). Further, that the Town has not demonstrated that the public health or safety is threatened by the farm operation's proposed retail sale and bulk sale of mulch, topsoil, fertilizer and other products that are utilized in the installation of on-farm produced nursery stock (sod). BACKGROUND The Department concluded in its November 19, 2021 letter to the Town that restricting Delea's retail sale and bulk sale of mulch, topsoil, fertilizer and other products that are utilized in the installation of on-farm produced nursery stock, would unreasonably restrict the farm operation, in possible violation of AML §305-a. The Department requested that the Town provide any documentation or evidence that the public health or safety is threatened by Delea's sale of mulch, topsoil, fertilizer, and other products utilized in the installation of its sod. The Town's submissions dated January 28, 2022 and March 17, 2022, offer no public health or safety documentation or evidence. Department's AML §305-a authority AML Article 25-AA (Agricultural Districts Law) forms the cornerstone of the State's agricultural protection program and implements the New York State constitutional R004 17 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Hon. Edward Romaine; Supervisor Town of Brookhaven 21Pa.ge directive to preserve and protect the State's. agriculturai lands as important State resources [N.Y. Constitution Art. XIV, §4J. AML §305-a prohibits local governments from enacting and administering laws that would unreasonably restrict farm operations within a coi.mty-adopted, State certified agricultural district, unless. the locality can show a threat 0 to the public health orsafety.AML §305-a applies to all local governments and addres.ses a matter of State concern - the preservation offarmland; and local laws must be consistent with its provisions. Additionally, Town Law §283-a mirrors the language. ofAML §305-a, demonstrating further support for the Legislature's intent. A local law may be superseded .by AML §305~a when the Department determines that the law unreasonably restricts or regulates farm operations within agriculturai dis.tricts in contraventicii1 of the purpoi;;es of AMLArticle 25-M, Agricultural Districts, unless the local government can demonstrate that the public health or safety is threatened [Town of Lysander v. Hafner, 96 N.Y.. 2d 558, 733 N.Y.S.2d 358 (2001)}. AML §305-a(1) vests the Department With the authority to take action against 1.aws which. unreasonably restrict cir regulate farm operations, and it is the. local government that has the burden of demonstrating a threat to the public he.alth or safety to overcome a Department finding that a local law unreasonably restricts a farm operation. $ee In the Matter of Village of Lacona v, New York State Department of Agriculture and Markets, 51 A.O. 3d1319, 858 N.Y.S. 2d 833 (3rd Dept. 2008). If the local government cannot dernoiJst.r.ite that the public health of safety is threatened, then the Department may determine that the restriction violates AML §305-a(1) and ta.ke enforcement measures. The Town, in its Memorandum of Law dated January 28; 2022, contends that the Department does not have the authority to preempt Brookhaven Town Code §§85s378 and .85-925. It argues that AML§305-a(1) is a "general laW,"and that it mustyieldW a "specific law," in this case the Long Island Pine Barrens Protection Act oft993, incorporated in the Environmental Conservation Law (ECL); or in the alternative be applied in harmony with the Long Island Pine Barrens Protection Act (LI Pine Barrens Act). It is a basic tenet of New York's hotne rule provisions that a local law which conflicts with a state statute must yield to the state statute. Further, the express ~nguage of AML §305-a, a general. law of state-wide applicability, authorizes the Department to supersede Linteasonab[y restrictive local. The Town argues that its implementation of the Central Pine Barrens Comprehensive Land Use Plan through its zoning law somehow divests theDepartment of its statutory power to review and supersede those zoning laws that it finds unreasonably reatrictions on farm operations in agricultural districts. !t does not. EGL 57-0107 (13) provides that the use of land for agriculture or horticulture does not constitute development for the purposes cif the Pine Barrens Act. The EGL 57-0107(14) definition of agriculture or horticult!-)re is exceedingly broad, covering "any production of plants or animals useful to man .... " AML §305"a's protection of agriculture is broad, covering the cultivation, sale, distribution and marketing of agricultural products. TheOil, mulch and potting soil .appears to be in an amount consistent with the .size and scope of its farm operation. The Department's protections relate to the sale of on-farm materials (!>od). As such, the sale of mulch concurrently with the sale of sod which is utilized in the installation of sod, or which is incidental and c_ontributes to the marketing ofh~rsery stock, is part of the farm operation. In the alternative, the lawn argues that the Department should condition any of its approvals or actions to prohibiting the on-site production of any "colored mulch, topsoil, stone, fertilizer and grass seed" arid limiting "the· sale. of compost, topsoil, mulch, wood products, stone, bagged fertilizer and .grass seed" to only minor limits less than 5% o{ Delea's sates whali comp.ired to the sale of sod.. The Department does not· regulate or proscribe limits or conditions on farm operations. The TciWn; however, may regulate a farm operations' c1ctivities that are not AML §305-a protected on-farm activities and activities which are not consistent with the size and scope of that farm operation. CONCLUSION Bas.ad upon its review in this matter; including the reasons set forth ih its November 19, 2021 letter arid herein, and the fact that the Town has not demonstrated that .there is a threat to public health or safety from Delaa's s1;1le of mulch; th.e Department concludes that the town of Brookhaven's Zoning Code, and its administration by the Town, unreasonably restricts the farm operation in violation of AML §305•a(1), by restricting Delea;s proposed sale of mulch; topsoil and other products, that are utilized in the installation of sod orwhich are incidental and contribute to the. marketing .of nursery stock. Th.e bepartment requests that theToW11 confirm within 30 days that such requirements Division of Land and Water"Resources 1·106 Alrtine i:k Albany,•N.Y'., 12235.I 5181457-3738 lwww,agrioullure:ny.go_v R007 20 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 Hon. Edward Romaine, Superyisor Town of Broqkhaven 5fPage will not be imposed on the farm operation. If steps to comply are not taken, the Department may take appropriat'1) action to enfon~e the provisions of AML §305-a (1). lfyou have ariy questiohs, Kate Tylutki, EnvironmentalAnalyst,·may be contacted at (518) 457•2851 conceming the. agriculturalissues identified. If Mrc Calica has any questions, he should contact Department Senior Attorney Danielle Cordier, Esq., at (518) 457-2449, Sincerely, IJ✓u//~ Michael J. Latham Director cc: Richard Delea, Delea Sod Farms; Inc. Frank Beyrodt, Delea Sod. Farms, lr1c.. John C. Armentano, Esq., Attorney for Delea Sod Farm, Inc. Annette Eaderesto, Esq., Counsel, Town of Brookhaven Robert M. Calica, Esq,, Special Counsel; Town of Brookhaven Ken Schmitt, Chi1ir, Suffolk County AFPB Kate Tylutki, Dept. Of A&M Danielle Cordier, Esq., Dept ofA&M Division o.flond and Water Resources 11oe Airl!ne Dr. Al~any, NY.. 122351.518/457,37381www.egMculture.ny.gov R008 21 of 175 FILED: ALBANY COUNTY CLERK 02/15/2023 04:33 PM INDEX NO. 907862-22 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/15/2023 From: Judah Serfaty To: Cordier, Danielle (AGRICULTURE) Cc: Tylutki, Kathleen (AGRICULTURE); Rob Calica Subject: RE: AML §305-a Review of Delea Sod Farms, Inc. Date: Thursday, October 13, 2022 3:56:04 PM You don't often get email from judah@rcblaw.com. Learn why this is important ATTENTION: This email came from an external source. Do not open attachments or click on links from unknown senders or unexpected emails. Thanks and understood. Regards, Judah Judah Serfaty ROSENBERG CALICA & BIRNEY LLP