| Glacial Aggregates LLC v Yorkshire |
| 2010 NY Slip Op 03716 [72 AD3d 1644] |
| April 30, 2010 |
| 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 M. Himelein,A.J.), entered August 27, 2007 in a declaratory judgment action. The judgment, upon a juryverdict, declared, inter alia, that the mining of sand and gravel aggregate was a lawfulnonconforming use on certain property of plaintiff and awarded money damages to plaintiff. Thejudgment was reversed by order of this Court entered December 31, 2008 in a memorandumdecision (57 AD3d 1362 [2008]), and plaintiff appealed to the Court of Appeals from the orderof this Court, and the Court of Appeals on February 18, 2010 reversed the order in an opinionand remitted the case to this Court for consideration of issues raised but not determined on theappeal to this Court (14 NY3d 127 [2010]),
Now, upon remittitur from the Court of Appeals and having considered the issues raised butnot determined on the appeal to this Court,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed without costs.
Memorandum: On a prior appeal in Glacial Aggregates LLC v Town of Yorkshire(57 AD3d 1362 [2008]), we granted defendant's motion for a directed verdict, which had beendenied by Supreme Court during a jury trial. We granted judgment in favor of defendantdeclaring that plaintiff's mining of sand and gravel aggregate on the property in question(property) was not a lawful nonconforming use of the property as a sand and gravel mine andthat plaintiff did not acquire a vested right to mine the property. The Court of Appeals reversedour order and remitted the case to this Court "for consideration of issues raised but notdetermined," in light of our reversal (Glacial Aggregates LLC v Town of Yorkshire, 14NY3d 127, 138 [2010]).
Upon remittitur, we conclude that Supreme Court properly denied defendant's motion "todismiss and/or" for summary judgment dismissing the amended complaint. In support of themotion, defendant contended, inter alia, that plaintiff did not have a nonconforming use at thetime the zoning ordinance was enacted and did not have a vested right to mine the property.Even assuming, arguendo, that defendant met its initial burden in that respect, we conclude thatthe court properly determined that [*2]plaintiff raised triableissues of fact sufficient to defeat the motion (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Plaintiff established that it had invested several hundredthousand dollars to purchase the land and to obtain permits from the Department ofEnvironmental Conservation to mine the property; that it had cleared trees and built a haul road;that it designed and purchased the materials to build the bridge required as part of the permit;and that it monitored wells and engaged in test drilling.
Defendant further contended in support of its motion that the cause of action pursuant to 42USC § 1983 was time-barred because the action was commenced more than three yearsafter the zoning ordinance prohibiting mining activities was enacted, on June 11, 2001. It isaxiomatic that the statute of limitations begins to run when a cause of action accrues (seeBritt v Legal Aid Socy., 95 NY2d 443, 446 [2000]). Here, defendant advised plaintiff byletter dated July 8, 2004 that it was not authorized by defendant to mine the property, and thecause of action in question accrued based on that letter (see Dinerman v City of N.Y. Admin. for Children's Servs., 50 AD3d1087 [2008]). The action was commenced on August 23, 2004, and thus the cause of actionpursuant to 42 USC § 1983 was timely.
In addition, defendant contended in support of its motion that plaintiff's cause of actionpursuant to 42 USC § 1983 was not ripe for judicial review. "Civil rights claims are notjusticiable until the municipality has 'arrived at a definitive position on the issue that inflicts anactual, concrete injury' " (Town of Orangetown v Magee, 88 NY2d 41, 50 [1996],quoting Williamson County Regional Planning Comm'n v Hamilton Bank of JohnsonCity, 473 US 172, 193 [1985]). Here, plaintiff was unable to obtain financing for thefull-scale mining operation because defendant advised plaintiff in the letter dated July 8, 2004that plaintiff was not authorized to mine the property. Under the circumstances of this case, wereject defendant's contention that defendant's Town Board was not authorized to make thedetermination that plaintiff was prohibited from engaging in mining activities. Thus, weconclude that defendant had " 'arrived at a definitive position on the issue that inflict[ed] anactual, concrete injury' " on plaintiff (id.), and thus that the cause of action pursuant to 42USC § 1983 was indeed ripe for judicial review.
Finally, contrary to defendant's contention, we conclude that the evidence at trial establishedthat plaintiff did not abandon the nonconforming use of the property. "Abandonment does notoccur unless there has been a complete cessation of the nonconforming use," and that is not thecase here (Matter of Marzella v Munroe, 69 NY2d 967, 968 [1987]; cf. Matter ofVite, Inc. v Zoning Bd. of Appeals for Town of Greenville, 282 AD2d 611 [2001]).Present—Scudder, P.J., Martoche, Smith, Centra and Peradotto, JJ.