GUILDERLAND — Frederick Wagner wants to mine gravel on five acres of his 29-acre property at 6457 Stitt Road, near the intersection of routes 146 and 158. So far his efforts to do so have been met with fines from the Department of Environmental Conservation, the blockage by the State Department of Transportation of an access road he built, and complaints from neighbors.

Wagner’s property is zoned for agriculture — the sole zoning district in the town where mining is allowed — which means that the town requires only a special-use permit for him to mine the property, Acting Chief Building and Zoning Inspector Jacqueline M. Coons told The Enterprise earlier.

Wagner is currently in the process of applying for a DEC mining permit. He needs to have that in hand before he can apply for a special-use permit from the town.

To hear Wagner tell it, he is a third-generation small-business owner who runs just one of a number of similar businesses in the mixed-residential area. He runs Helderberg Excavating and Trucking, in the old Ford reproduction building at 6599 Route 158. He’s proud of the way he has refurbished that building and of the way he maintains land he owns along Route 146, across from the Appel Inn.

His father and grandfather ran a gravel pit at the end of Maeotsa Lane, off Hurst Road, where he still stores materials.

Neighbors say he began mining without a permit and also put in a road without a permit and only applied to the town for permission to mine after he had been ordered to stop work by the Department of Environmental Conservation.

The DEC

According to an Order of Consent dated April 5, 2017 and a Modified Order of Consent dated April 18, 2017, obtained from the DEC by neighbor Nina Knapp with a Freedom of Information Law request, Wagner’s property was inspected in March 2016 by the DEC, at which time officials determined that he had “removed vegetation from the area to be mined,” and told Wagner that no mining could take place until he received a permit. When officials returned in November 2016, they found that he had been mining at the site, and fined him $4,000, with $2,000 of that amount due, and the other $2,000 to be suspended provided that he remains in compliance.

Rick Georgeson, spokesman for the DEC’s Region 4, confirmed that Wagner has paid the initial $2,000 fine.

The materials he took out of his mine area were all used, Wagner said this week, to build the access road he put in from the site to Route 158. He has the right under DEC law, he said, to take out up to 1000 yards of material from his own property. “It wasn’t even taken off-site,” he said.

How much had he taken out? He thought for a moment and said it was probably more than 1,000 yards. Asked if that didn’t constitute mining, even though he used the material on his own property, he shrugged. It’s no different, he said, than a farmer getting shale out of the back, to access his fields.

“They said it’s a violation, and I paid it,” he said, referring to the first $2,000.

Nancy Baker, the DEC’s deputy regional permit administrator with the Division of Environmental Permits, said this week that Wagner is currently in compliance, because he has stopped mining.

Once Wagner’s application is completed, Baker said, she will place a copy on view at the town hall and publish a legal notice asking that any concerns about the project be sent to her attention within 30 days.

The DOT

About the access road, Wagner said he had friends who were working nearby and who offered to pave the road at no cost to him if he supplied the materials. Wagner then met with a representative from the State’s Department of Transportation, he said, who was about to hand him a permit for the road he had built when Wagner happened to mention that he was applying for a mining permit. The DOT representative immediately said that, because of the open application, he could not issue a permit, and ordered Wagner to block off the road, Wagner recalled. So Wagner himself placed three large concrete blocks where the road meets Route 158, approximately 20 feet northwest of the intersection of Osborne Road and Route 158.

A number of his neighbors, meanwhile, have been expressing their concerns about the proposed mining operation in letters to the DEC and the town. Their concerns center mainly on three issues: concern for quality of life, increased traffic, and protection of water resources.

Bryan Viggiani, public information officer with the Capital Region office of the DOT, said that anyone who wants to connect to a state road needs to get a highway work permit, and that, in this case, that permit has not yet been issued. In issuing that permit, he said, the DOT would consider factors including sight distance and proximity to other roads.

Wagner told The Enterprise that, regardless of how the mining permit application turns out, he will be happy to have a road to access his land.

Next steps

Wagner went before Guilderland’s planning board in April for a site-plan review, and the board recommended approval, with several conditions: that the locations of nearby private wells be identified on the plans, that the DOT approve the access drive to the mine site, and that the DEC approve the mining permit.

Town Supervisor Peter Barber said that by law in New York State, “The DEC has primary jurisdiction.” The review by the town’s zoning board will need to take into account what the DEC says, Barber said. The DEC took on the responsibility for considering these applications because “mines are disfavored by a lot of communities,” Barber said, and the agency did not want to leave the decisions to local boards.

After Wagner obtains a permit from the DEC, the town’s zoning board will schedule a public hearing, according to Coons.

Neighbors’ concerns

Meanwhile, these neighbors of Wagner wrote a letter to Barber, outlining their concerns: Stuart and Nina Knapp, Peter Brunk and Pamela Klarsfeld, Michael and Alice Bresney, Brian and Lisa Bataille, Stephen and Carolyn Wilson, and Susan and James Green. In it they mention:

— Protection of water resources: Neighbors from six nearby properties signed a letter sent to Barber in May. The letter said that water was their primary concern, and asked the town to consider doing a hydrogeological assessment to determine the impact of mining on the nearby Watervliet Reservoir — which is the source for most of Guilderland’s drinking water — and on the many private wells that serve those homes.

The letter specified that the homeowners pay the water tax, but have chosen not to connect because they have great-tasting, high-yield water and because of the cost of connecting and the town’s restrictions on water use.

Wagner’s application to the town states that no mining would be done below the water table.

The reservoir lies near the end of Stitt Road, approximately a half-mile from Wagner’s proposed site. Between Wagner’s proposed site and the reservoir are the much larger mine site of William M. Larned & Sons and a handful of houses;

— Air quality: The permit application states that diesel exhaust, soil and rock particulates, and dust will be released during mining operations. The letter writers ask how the emissions will be measured and how the “potentially dangerous impacts of these emissions” will be mitigated;

— Quality of life: The letter points out that Wagner has applied to work at the site from 7 a.m. to 7 p.m. on weekdays, and from 8 a.m. to 4 p.m. on Saturdays. Operations will close down on Sundays and a handful of major holidays. The neighbors write that they have dealt with “dirt, dust, noise, as well as consistent truck traffic” from the Larned mine for 30 years, and that Wagner’s mine is closer.

Wagner’s application notes that there are 91 residences within a mile of the proposed mine site, but that dust from mining operations will be retained within the property boundaries and noise and visual impact will be mitigated by factors including the walls of the mine and surrounding forests; and

— Increased traffic: In their letter, the neighbors point out that nearby Phillips Hardware, at the intersection of routes 158 and 146, is proposing a large-scale expansion that would include a sports dome, gas station, convenience store, fast-food drive-through, hardware store, and corporate offices. They ask if the local boards will consider the two projects — Phillips’s and Wagner’s — in terms of their cumulative effect “in regards to noise, hours of operation, air issues, and impact of traffic and speed limits.”

Barber said, “The town does do that. The zoning board, as part of the State Environmental Quality Review, will take a look at cumulative effect.”

But it’s not a coordinated review, he added. “Each project gets reviewed on its own.”

Neighbor Pamela Klarsfeld, one of the people who signed the letter to Barber, said that she would like to see the two projects considered together, since their effect on neighbors will be cumulative. “Why do we have a planning board?” she asked. “Their responsibility is to look at what’s going on, and direct it.”

Plan to move Stitt Road

Currently, the only way to get to Larned’s mine, to Wagner’s proposed site, and to several nearby homes, is by Stitt Road, which is in rough shape, full of potholes.

According to Guilderland town attorney James Melita, the town has an agreement dating back many years with William M. Larned & Sons that Larned is responsible for Stitt Road. Melita said that the town has been pressing Larned to rebuild Stitt Road, at his expense, and that he expects that construction will begin soon.

Larned could not be reached for comment.

Melita said that the road is going to be moved so that it is not so close to what he called a “cliff,” referring to the sharp angle of repose carved out by the deep Larned mining pit on the north side of the road.

Wagner said that, knowing how anxious the neighbors are to have Stitt Road repaired, he donated lands on either side of it so that they can be used to relocate the road.

“I’m trying to work with everybody,” he said.

The new location will be better in terms of drainage, Melita said. He confirmed that Wagner did dedicate land to make it possible to move the road.

Barber said the plans for the new road have been approved by the town engineer and that the town is waiting for Larned to start. Melita said he and Barber have been “really pushing” for construction to be done.

Larned will bear any costs, Melita said.