| Glacial Aggregates LLC v Town of Yorkshire |
| 2008 NY Slip Op 10254 [57 AD3d 1362] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Glacial Aggregates LLC, Respondent, v Town of Yorkshire,Appellant. |
—[*1] Magavern Magavern Grimm LLP, Niagara Falls (Edward P. Perlman of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Cattaraugus County (Larry Himelein, A.J.),entered August 27, 2007 in a declaratory judgment action. The judgment, upon a jury verdict,declared, inter alia, that the mining of sand and gravel aggregate was a lawful nonconforming use oncertain property of plaintiff and awarded money damages to plaintiff.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law withoutcosts, the motion for a directed verdict is granted, the second cause of action is dismissed and judgmentis granted in favor of defendant as follows:
It is adjudged and declared that the mining of sand and gravel aggregate on the property in questionis not a lawful nonconforming use and that plaintiff did not acquire a vested right to mine the property.
Memorandum: Plaintiff, the owner of approximately 216 acres of land in defendant, Town ofYorkshire (Town), commenced this action seeking, inter alia, a declaration that its mining of sand andgravel aggregate on the property in question was a lawful nonconforming use and that it had acquired avested right to mine the property. In its amended complaint plaintiff also alleged that the Town haddeprived it of its vested right to mine the property in question in violation of the United StatesConstitution and that it was entitled to damages pursuant to 42 USC § 1983. Following a jurytrial, judgment was entered in favor of plaintiff declaring, inter alia, that the mining of sand and gravelaggregate was a lawful nonconforming use and that, because the Town had deprived plaintiff of itsconstitutionally vested right to mine sand and gravel aggregate on its property, plaintiff was entitled todamages in the amount of $190,000, with interest. We agree with the Town that Supreme Court erredin failing to grant its motion for a directed verdict at the close of plaintiff's evidence.
"[T]o establish a right to a nonconforming use, the person [or entity] claiming the right mustdemonstrate that the property was indeed used for the nonconforming purpose, as distinguished from amere contemplated use, at the time the zoning ordinance became effective" (Matter of SyracuseAggregate Corp. v Weise, 51 NY2d 278, 284-285 [1980]). Here, the evidence presented byplaintiff at trial established that, prior to the Town's adoption of a zoning law in June 2001 thatprohibited mining within the Town absent a special use permit, plaintiff had [*2]applied for, received and renewed its New York Department ofEnvironmental Conservation (DEC) mining permit. Plaintiff further established that it allowed two sandand gravel companies to remove a total of 40 truckloads or 400 tons of material for testing; it removedtimber throughout the property; it surveyed and staked out the locations of the mining areas and the haulroad; it drilled many test holes, designed and obtained steel for a required bridge, and dug andmonitored watertable wells; and it filed periodic reports with the DEC. We conclude, however, thatnone of those activities constituted actual mining of sand and gravel aggregate. Rather, those activitieswere performed merely in contemplation of mining. Indeed, plaintiff's general manager acknowledgedon cross-examination that plaintiff "did not commercially mine the property" during the 15-month periodbetween March 13, 2000, when the moratorium on mining activities was lifted by the Town, and June2001, when the zoning law was enacted. Further, both plaintiff's general manager and plaintiff's sandand gravel mining consultant testified that commercial mining could not take place under the DECpermit until a bridge was constructed over a creek and 500 feet of the haul road was paved, and it isundisputed that those two conditions had not been satisfied. In order to prevail on its motion for adirected verdict, the Town " 'had the burden of showing that the evidence, viewed in the light mostfavorable to [plaintiff], established as a matter of law that there was no rational process by which thejury could find in favor of [plaintiff]' " (Blanchard v Lifegear, Inc., 45 AD3d 1258, 1260 [2007]). We concludeon the record before us that, because "[t]he proof [presented by plaintiff] did not demonstrate that theproperty was actually being used for the nonconforming purpose at the time the zoning ordinancebecame effective," the court erred in failing to grant that part of the Town's motion for a directed verdictseeking, inter alia, a declaration that the mining of sand and gravel aggregate on the property in questionis not a lawful nonconforming use of plaintiff's land (Martino v Town of Bergen, 98 AD2d 968[1983], lv denied 61 NY2d 606 [1984]; see Matter of Skenesborough Stone v Village ofWhitehall, 272 AD2d 674, 676-677 [2000], appeal dismissed 95 NY2d 902 [2000];Matter of Squire v Conway, 256 AD2d 771, 773 [1998]).
We further agree with the Town that the court erred in failing to grant that part of its motion for adirected verdict declaring that plaintiff did not acquire a vested right to mine its property. "In NewYork, a vested right can be acquired when, pursuant to a legally issued permit, the landownerdemonstrates a commitment to the purpose for which the permit was granted by effecting substantialchanges and incurring substantial expenses to further the development" (Town of Orangetown vMagee, 88 NY2d 41, 47 [1996]; see Matter of Ellington Constr. Corp. v Zoning Bd. ofAppeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 [1990]). However, "[n]either theissuance of a permit . . . nor the landowner's substantial improvements and expenditures,standing alone, will establish the right. The landowner's actions relying on a valid permit must be sosubstantial that the municipal action results in serious loss rendering the improvements essentiallyvalueless" (Town of Orangetown, 88 NY2d at 47-48). Further, no vested rights will accrue toa landowner "[w]here substantial construction has been commenced, but expenditures thereon areunsubstantial . . . [or] where substantial expenditures have been made but substantialconstruction has not commenced" (Matter of Putnam Armonk v Town of Southeast, 52 AD2d10, 14 [1976]; see Matter of Berman v Warshavsky, 256 AD2d 334, 335-336 [1998]).
Here, plaintiff's general manager testified that approximately $800,000 was spent on this project.He further testified, however, that $750,000 of that amount was spent on acquiring the land and inobtaining the DEC mining permit. Because those expenditures were incurred by plaintiff before itobtained the mining permit and were not incurred by plaintiff in reliance on the permit, they do notconstitute the type of substantial expenditures that would entitle plaintiff to a vested right to mine itsproperty (see Preble Aggregate v Town of Preble, 263 AD2d 849, 851-852 [1999], lvdenied 94 NY2d 760 [2000]). We further conclude that, viewing the evidence in the light mostfavorable to plaintiff, there is no rational process by which the jury could have found that plaintiff hadcommenced substantial construction of its sand and gravel mine sufficient to acquire [*3]a vested right to mine (see generally Blanchard, 45 AD3d at1260). Indeed, although plaintiff presented evidence establishing that, in order to commencecommercial mining, it was required, inter alia, to build a haul road and pave its last 500 feet, and installa bridge for the haul road over a creek, it is undisputed that plaintiff did not in fact perform any of thosetasks. Thus, "[u]nder the circumstances, plaintiff did not demonstrate vested rights [inasmuch as] itfailed to show that it had effected substantial changes and incurred substantial expenses to furtherdevelopment pursuant to a legally issued permit" (Preble Aggregate at 851; see Matter ofSmith v Spiegel & Sons, 31 AD2d 819, 820 [1969], affd 24 NY2d 920 [1969];Berman, 256 AD2d at 335-336).
Inasmuch as plaintiff did not establish that it acquired a vested right to mine its property, weconclude that the court also should have granted that part of the Town's motion for a directed verdictdismissing the second cause of action, which sought damages pursuant to 42 USC § 1983 basedon the alleged violation of its rights under the United States Constitution (see Schlossin v Town of Marilla, 48 AD3d1118, 1120 [2008]; see generallyBower Assoc. v Town of Pleasant Val., 2 NY3d 617, 627 [2004]).
In light of our determination, we need not address the Town's remaining contentions.Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Lunn, JJ.