| Buffalo Crushed Stone, Inc. v Town of Cheektowaga |
| 2008 NY Slip Op 07279 [55 AD3d 1228] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Buffalo Crushed Stone, Inc., Appellant-Respondent, v Town ofCheektowaga, Respondent-Appellant. |
—[*1] David J. Seeger, Buffalo, for defendant-respondent-appellant.
Appeal and cross appeal from a judgment (denominated order) of the Supreme Court, ErieCounty (Joseph R. Glownia, J.), entered April 19, 2007 in a declaratory judgment action. Thejudgment, among other things, declared that quarrying on subparcels 17C/25C and 12B/25I is alawful nonconforming use.
It is hereby ordered that the judgment so appealed from is modified on the law by vacatingthe declaration in the last decretal paragraph with respect to the northern portion of parcel 31 andgranting judgment in favor of plaintiff as follows: "It is ADJUDGED AND DECLARED that quarrying or mining is a permitted use on thenorthern portion of parcel 31," and by vacating the second decretal paragraph and grantingjudgment in favor of defendant as follows: "It is ADJUDGED AND DECLARED that quarrying or mining is not a lawfulnonconforming use on subparcels 17C/25C and 12B/25I" and as modified the judgment isaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, judgment declaring thatall quarrying or mining of its property situated outside of defendant's "AG-Special AggregateDistrict" is permitted as a lawful nonconforming use. Plaintiff owns approximately 280 acres ofreal property within the Town of Cheektowaga upon which it operates a hard rock quarry onapproximately one half of its land. The quarry began operations in 1929 when it was owned andoperated by the Cheektowaga Crushed Stone Corporation, and that corporation thereafterchanged its name to Federal Crushed Stone Corporation (Federal). In 1968, Federal merged withthe Bituminous Products Corporation to become the Buffalo Slag Company and, in [*2]1983, plaintiff purchased the Buffalo Slag Company together withall of its interests in the 280 acres of land.
In 1969, defendant repealed its 1942 zoning ordinance and enacted a new zoning ordinancethat created several districts and subdistricts, including an "AG-Aggregate District" in which,inter alia, quarrying was a permitted use. The current zoning ordinance has not altered thephysical limits of the Aggregate District created by the 1969 zoning ordinance, but the name ofthat district has simply been changed to an "AG Special Aggregates District." All of plaintiff'squarrying operations are currently conducted on that portion of plaintiff's property that is locatedwithin the AG Special Aggregates District. The portion of plaintiff's property located outside ofthe AG Special Aggregates District, which is the subject of this appeal and cross appeal, consistsof property denominated by defendant as parcel 5, subparcel 25D, and a parcel that includessubparcels 28A and B, 29A and B, and 30A and B, parcels 31 through 33, and subparcels17C/25C and 12B/25I. Defendant moved for summary judgment seeking a declaration thatspecified real property is not entitled to nonconforming use status under its zoning ordinance, andplaintiff cross-moved for summary judgment seeking a declaration "that all quarrying operationsconducted anywhere within the boundaries of [its property]" are entitled to such status. SupremeCourt granted judgment declaring, inter alia, that the quarrying of subparcels 17C/25C and12B/25I is a lawful nonconforming use and that parcel 5, subparcels 25D, 28A and B, 29A andB, and 30A and B, and parcels 31 through 33 are not entitled to nonconforming use rights. Thisappeal and cross appeal ensued.
It is well settled that "[t]he law . . . generally views nonconforming uses asdetrimental to a zoning scheme, and the overriding public policy of zoning in New York Stateand elsewhere is aimed at their reasonable restriction and eventual elimination" (Matter ofToys "R" Us v Silva, 89 NY2d 411, 417 [1996]; see Matter of Rudolf Steiner FellowshipFound. v De Luccia, 90 NY2d 453, 458 [1997]). Further, "[w]hile nonconforming uses aregenerally permitted to continue, they may not be enlarged as a matter of right" (RudolfSteiner Fellowship Found., 90 NY2d at 458). Contrary to the contention of plaintiff on itsappeal, we conclude that the court properly declared that plaintiff was not entitled to quarryparcel 5 and subparcel 25D as a lawful nonconforming use inasmuch as plaintiff failed toestablish substantial quarrying activities prior to 1969 on that parcel and subparcel that "clearlymanifest[ed] an intent to appropriate the entire parcel to the particular business of quarrying"(Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 286 [1980]; see Matterof Skenesborough Stone v Village of Whitehall, 272 AD2d 674, 676-677 [2000], appealdismissed 95 NY2d 902 [2000]; Matter of Squire v Conway, 256 AD2d 771, 773[1998]; Speonk Sand & Gravel Co. v Town of Southampton, 127 AD2d 828 [1987]).Indeed, plaintiff concedes that no actual mining has occurred on that parcel and subparcel.
We note in particular with respect to parcel 5 that, contrary to plaintiff's contentions, the factthat in 1951 Federal's accounting department indicated that parcel 5 contained 5,000,000 tons ofaggregates material, along with the fact that in 1963 plaintiff unsuccessfully attempted to relocateIndian Road to the southern boundary of its property, merely demonstrates an intended use of theparcel for quarrying that is insufficient to confer nonconforming use status (see SyracuseAggregate Corp., 51 NY2d at 284-285; Squire, 256 AD2d at 773). Further, it isimmaterial that in 1958 there were 6,000 feet of 16-inch pipe running along Indian Road to apumping station off plaintiff's property. That is not evidence of infrastructure devoted to miningsimilar to the network of service roads placed throughout the parcel in Syracuse AggregateCorp. (51 NY2d at 286). The other activities cited by plaintiff all occurred after the effectivedate of the 1969 zoning ordinance and thus are irrelevant to establish a prior lawfulnonconforming use (see Martino v Town of Bergen, 98 AD2d 968 [1983], lv denied61 NY2d 606 [1984]). Moreover, parcel 5 is physically separated by Indian Road fromplaintiff's other lands, and "it [is not] possible to extend the protection of a permittednonconforming use established on one parcel of land to [*3]physically separate though adjoining parcels" (SyracuseAggregate Corp., 51 NY2d at 286). With respect to subparcel 25D, plaintiff has notdemonstrated that it acquired the rights to quarry that subparcel prior to 1969. Rather, weconclude that the description of the leased premises in a 1959 lease that according to plaintiffgranted to it the right to quarry that subparcel unambiguously describes a parcel of land that doesnot include subparcel 25D. Further, because plaintiff also failed to establish that it conducted any"substantial quarrying activities" on that subparcel prior to 1969 that "clearly manifest an intentto appropriate the entire parcel to the particular business of quarrying," plaintiff is not entitled toextend the protection of a permitted nonconforming use to that subparcel (id.).
Although we agree with plaintiff that the six streets comprising subparcels 28A and B, 29Aand B, and 30A and B, and parcels 31 through 33 have not "been traveled or used as a highwayfor six years [and thus] shall cease to be a highway . . . and shall be deemedabandoned as a right-of-way" (Highway Law § 205 [1]; see Matter of Wills v Town ofOrleans, 236 AD2d 889, 890 [1997]), plaintiff is not benefitted thereby. Despite theabandonment of those subparcels and parcels, plaintiff is not entitled to quarry them as anonconforming use "merely because they are contiguous" to plaintiff's other subparcels andparcels where quarrying has occurred over a long period of time (Matter of Rodrigues vRosenthal, 112 AD2d 1000, 1002 [1985], lv denied 67 NY2d 610 [1986]). Plaintifffailed to establish in addition that it conducted some prior mining operations on these subparcelsand parcels that evidenced "an intent to appropriate the entire parcel" for such operations(Syracuse Aggregate Corp., 51 NY2d at 286). There is, however, one minor exception.The northern portion of parcel 31 (Reading Avenue) is in fact located within the AG SpecialAggregates District, and quarrying or mining therefore is a permitted use with respect to thatportion of parcel 31. We therefore modify the judgment accordingly.
Lastly, we agree with defendant on its cross appeal that the court erred in declaring thatquarrying or mining subparcels 17C/25C and 12B/25I is a lawful nonconforming use. Wetherefore further modify the judgment accordingly. Plaintiff failed to offer any evidence that anykind of quarrying activities were ever conducted on those subparcels prior to 1969, despite thefact that plaintiff applied for and was issued mining permits in 1955 and 1960. The issuance ofmining permits, without any other activities undertaken in furtherance of mining, are preciselythe type of "self-serving acts of a very limited nature [that cannot be deemed to] have thrown aprotective mantle of nonconforming use over [plaintiff's] entire parcel of land as against a laterprohibitory zoning ordinance" (id.). In light of our determination, we need not addressdefendant's remaining contentions with respect to those subparcels.
All concur except Martoche, J.P., and Green, J., who dissent in part in accordance with thefollowing memorandum.
Martoche, J.P., and Green, J. (dissenting in part). We respectfully dissent in part and wouldmodify the judgment by vacating the declaration in the last decretal paragraph with respect tosubparcels 28A, 28B, 29A, 29B, 30A, and 30B, and parcels 31 through 33 and granting judgmentin favor of plaintiff declaring that quarrying or mining is a permitted use on those subparcels andparcels and by vacating the declaration in that decretal paragraph with respect to subparcel 25D.The status of that subparcel is not properly determined in the context of the instant motion andcross motion for summary judgment.
Preliminarily, we note our agreement with the majority that Supreme Court properly declaredthat plaintiff was not entitled to quarry parcel 5 as a lawful nonconforming use. As the majoritycorrectly notes, parcel 5 is physically separated by Indian Road from plaintiff's other lands, and toafford it nonconforming use status would impermissibly extend the protection of a permittednonconforming use established on one parcel of land to a physically separate though adjoiningparcel (see Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 286 [1980]).[*4]
Addressing first subparcel 25D, we note that we cannotagree with the majority's analysis with respect to that subparcel because, in our view, the majorityincorrectly states that plaintiff did not demonstrate that it acquired the rights to quarry thatsubparcel prior to 1969. Plaintiff submitted an affirmation of a title examiner and attorney, whoconcluded that all of the property identified as parcel 2, which necessarily included subparcel25D, was acquired in fee or by lease prior to 1969. Additionally, plaintiff submitted an affidavitof its executive vice-president, who stated that subparcel 25D was leased in 1959 by plaintiff'spredecessor in interest. In our view, plaintiff thereby raised an issue of fact whether plaintiff'spredecessor in interest leased subparcel 25D prior to 1969, and thus neither party is entitled tosummary judgment with respect to the status of subparcel 25D.
We further disagree with the majority that quarrying or mining is not a lawful nonconforminguse on subparcels 17C/25C and 12B/25I and that subparcels 28A and B, 29A and B, and 30A andB, and parcels 31 through 33 are not entitled to nonconforming use rights. The majority correctlyagrees with plaintiff that the six streets comprising those subparcels and parcels are deemedabandoned as a right-of-way pursuant to Highway Law § 205 (1) (see Matter of Wills vTown of Orleans, 236 AD2d 889, 890 [1997]). In our view, however, the majoritymisconstrues the holding in Syracuse Aggregate Corp. in concluding that plaintiff failedto establish that it conducted some prior mining operations on those subparcels and parcels thatevidenced "an intent to appropriate the entire parcel" for such operations (51 NY2d at 286). Forexample, parcels 28A and B appear to be, according to maps submitted by the parties, an unusedextension of Hawthorne Avenue. Although the actual acreage of subparcels 28A and B is notclear from the record, it is obvious that those subparcels represent a relatively small percentage ofthe entire parcel and that property surrounding those subparcels has been mined. Under themajority's interpretation of Syracuse Aggregate Corp., the owner of a mine/quarry wouldbe required to conduct some activity on every square inch of its property in order to establishnonconforming use status for the entire parcel. In our view, however, Syracuse AggregateCorp. does not require such activities throughout the entire property. Indeed, the Court ofAppeals recognized therein that, "as a matter of practicality as well as economic necessity, aquarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve,virtually untouched until they are actually needed" (id. at 285).
Our view that subparcels 28A and B, 29A and B, 30A and B, and parcels 31 through 33 areentitled to nonconforming use rights is supported by the facts in Syracuse Aggregate Corp. In thatcase, the petitioner owned a 25-acre parcel that had been used since the 1920s for the excavationof sand, gravel, topsoil and fill. The petitioner's predecessor in interest made improvements to theland, including a network of haul roads, a structure located in the center of the property, and astorage shed for tools. This Court reversed the judgment of Supreme Court and, inter alia,authorized the petitioner "to conduct the nonconforming use on the entire parcel" even though thepetitioner's predecessor in interest had not excavated on every portion of the parcel (72 AD2d254, 260 [1980]). In affirming our order, the Court of Appeals noted that no part of thepetitioner's land "was ever dedicated to a use other than the quarrying of sand and gravel" (51NY2d at 286). The Court further noted that a landowner could not undertake a "few self-servingacts of a very limited nature . . . [to throw] a protective mantle of nonconforminguse over his [or her] entire parcel" (id.). However, the Court went on to write that, where,as in Syracuse Aggregate Corp., the owner "engages in substantial quarrying activities on adistinct parcel of land over a long period of time and these activities clearly manifest an intent toappropriate the entire parcel to the particular business of quarrying, the extent of protectionafforded by the nonconforming use will extend to the boundaries of the parcel even thoughextensive excavation may have been limited to only a portion of the property" (id.). Here,plaintiff and its predecessors in interest engaged in "substantial quarrying activities on a distinctparcel of land over a long period of time," and it does not appear from this record that any part ofthe land was [*5]ever "dedicated to a use" other than quarrying(id.).
The requirement imposed by the majority that plaintiff establish that "any kind of quarryingactivities" were conducted on every subparcel and parcel would render moot the nonconforminguse issue because, if plaintiff could establish that it conducted "any kind of quarrying activities"on every square inch of its property, there would be no question that the entire parcel would beentitled to nonconforming use status. In our view, it is inappropriate to divide a large parcel intovarious parts based on dates of lease and/or acquisition. Rather, in accordance with the analysisof the Court of Appeals in Syracuse Aggregate Corp., we conclude that the distinct parcelshould be considered in its entirety, with the exception of the portion separated by a barrier, i.e., aroadway, in determining whether the parcel is entitled to nonconforming use status.Present—Martoche, J.P., Centra, Lunn, Peradotto and Green, JJ.