| Subdivisions, Inc. v Town of Sullivan |
| 2010 NY Slip Op 06209 [75 AD3d 978] |
| July 22, 2010 |
| Appellate Division, Third Department |
| Subdivisions, Inc., et al., Appellants, v Town of Sullivan et al.,Respondents. |
—[*1] Scott F. Chatfield, Marietta, for Town of Sullivan, respondent. Wladis Law Firm, P.C., Syracuse (Kevin C. Murphy of counsel), for Town of SullivanZoning Board of Appeals, respondent.
Egan Jr., J. Appeals from an order and an amended order of the Supreme Court (Cerio, J.),entered November 17, 2009 and January 25, 2010 in Madison County, which, among otherthings, granted a motion by defendant Town of Sullivan Zoning Board of Appeals to interveneand denied plaintiffs' motion for summary judgment.
This action involves a zoning dispute regarding whether plaintiffs are entitled tononconforming use status for an 80-acre parcel of vacant land located on County Route 23,commonly known as Quarry Road, in the Town of Sullivan, Madison County and formerly usedas a quarry (hereinafter the subject parcel). Historically, mining was conducted at both thesubject parcel, which lies on the east side of Quarry Road, and another parcel, which lies on thewest side of Quarry Road. The subject parcel was mined in the 1800s for limestone blocks usedin the construction of the Erie Canal and local churches. Around the turn of the century, arailroad spur was built to the area, but routed through the west side quarry. As a result, miningcontinued there while the subject parcel was relegated for timber production and as the site ofminers' houses and a sawmill. At present, the subject parcel is used for the growing of hay,although the original mine face and one of the old miner's houses can still be found. For manyyears, both properties were owned by Worlock Stone Company, Inc.[*2]
In 1977, pursuant to New York State's then recentlyenacted Mined Land Reclamation Law (see L 1974, ch 1043, adding ECL 23-2701 etseq.), Worlock Stone submitted an application to the Department of EnvironmentalConservation for a mining permit, which included a reference to the subject parcel as reserveland being farmed. In the 1990s, the west side parcel was sold to Santaro Companies and then toCallahan Industries, while the subject parcel was transferred in 1992 to James K. Johnson, whoin turn conveyed it to plaintiff Subdivisions, Inc. in 2004. Johnson is an officer and shareholderof Subdivisions. In 2004, plaintiff J.B. Quarry, Inc. applied for a mining permit for the subjectparcel from the Department of Environmental Conservation; the permit was granted in 2006.
In the midst of separate ongoing litigation between the parties regarding whether plaintiffswere entitled to a special use permit and whether mining is a permitted use under the applicablezoning law, plaintiffs commenced this action seeking, among other things, a declaration that allof the zoning restrictions applicable to mining are void as against plaintiffs. After issue wasjoined, plaintiffs moved for summary judgment. Defendant Town of Sullivan opposed themotion and cross-moved seeking dismissal of the action. Defendant Town of Sullivan ZoningBoard of Appeals (hereinafter ZBA) moved to intervene. In an order and amended order,Supreme Court granted the ZBA's motion, and denied both plaintiffs' motion for summaryjudgment and the Town's cross motion seeking dismissal of the complaint. Plaintiffs now appealfrom both orders, and we affirm.
Initially, we are unpersuaded that Supreme Court erred in granting the ZBA's motion tointervene. CPLR 1012 (a) (2) permits intervention when the representation of the person seekingto intervene "is or may be inadequate" and that person "is or may be bound by the judgment.""[W]hether [a] movant will be bound by [a] judgment within the meaning of [CPLR 1012 (a) (2)]is determined by its res judicata effect" (Vantage Petroleum, Bay Isle Oil Co. v Board ofAssessment Review of Town of Babylon, 61 NY2d 695, 698 [1984]). CPLR 1013 providesfor intervention in the court's discretion "when the person's claim or defense and the main actionhave a common question of law or fact." Here, it is the ZBA that is charged with theinterpretation and application of the Town's zoning ordinance (see Town Law §267-b [1]; Town of Sullivan Zoning Ordinance, art V, § 10; art VI, § 16-17). Adetermination in this action would clearly bind the ZBA, especially in light of pending mattersinvolving overlapping issues related to how the subject parcel is zoned and what activities arepermitted thereon.[FN*]Accordingly, based on these facts and the lack of prejudice to plaintiffs (see Berry v St.Peter's Hosp. of City of Albany, 250 AD2d 63, 69 [1998], lv dismissed 92 NY2d1045 [1999]), we find that Supreme Court properly granted the ZBA's motion to intervene (see Berkoski v Board of Trustees of Inc.Vil. of Southampton, 67 AD3d 840, 843 [2009]).
We are likewise unpersuaded that Supreme Court erred in denying plaintiffs' motion forsummary judgment. "The primary purpose of [a] declaratory judgment[ ] is to adjudicate theparties' rights before a 'wrong' actually occurs in the hope that later litigation will beunnecessary" (Klostermann v Cuomo, 61 NY2d 525, 538 [1984] [citation omitted]).While under appropriate circumstances, summary judgment may lie within the confines of adeclaratory judgment action (see Russell v Town of Pittsford, 94 AD2d 410, 412[1983]), the test of its applicability is no different than in any civil action.
Here, plaintiffs contend that they are entitled to a declaration in their favor because theydemonstrated that they engaged in quarry operations and obtained mining permits for theproperty before zoning restrictions were put in place. Generally, "prior nonconforming uses inexistence when a zoning ordinance is adopted are . . . constitutionally protectedeven though an ordinance may explicitly prohibit such activity" (Buffalo Crushed Stone, Inc. v Town ofCheektowaga, 13 NY3d 88, 97 [2009]; see Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127,135 [2010]; People v Miller, 304 NY 105, 107 [1952]). In the mining industry, priornonconforming use status may be extended to unquarried portions of real property if thelandowner can sufficiently demonstrate that, prior to the passage of a restrictive zoning law, it orits predecessors engaged in substantial quarrying activities on a portion of the property with theintention to do the same on other unquarried portions of the property (see Buffalo CrushedStone, Inc. v Town of Cheektowaga, 13 NY3d at 98; Matter of Syracuse AggregateCorp. v Weise, 51 NY2d 278, 286 [1980]). Thus, to be entitled to a declaratory judgmentvoiding the Town's zoning restrictions with respect to the subject property, plaintiffs "mustestablish specific actions constituting an overt manifestation of [their] intent to utilize theproperty for the ascribed purpose at the time the zoning ordinance became effective" (BuffaloCrushed Stone, Inc. v Town of Cheektowaga, 13 NY3d at 98; see Matter of SyracuseAggregate Corp. v Weise, 51 NY2d at 284-285). "[A] mere contemplation of purpose,lacking supportive evidence of undertakings to effectuate such intentions, will not suffice"(Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d at 98).
Here, while there is evidence that the subject parcel was used for mining in the 1800s to,among other things, supply material for the construction of the Erie Canal, it is unclear when itwas last actively mined. Since then the subject parcel was used for housing, logging and,currently, farming. The record is unclear as to what use was in existence on the subject parcelwhen the zoning ordinances were adopted. Without a specific time frame, plaintiffs' vaguestatements that actual mining has occurred are insufficient to establish their entitlement tosummary judgment (see Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3dat 99; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, while weacknowledge that mining permits present "strong evidence of a manifestation of intent to mine agiven area" (Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d at 102),based on the history of the use of the property and the absence of any other overt act that wouldmanifest plaintiffs' or their predecessor's intent to mine the subject parcel prior to the adoption ofthe applicable zoning ordinance, Supreme Court correctly denied plaintiffs' motion for summaryjudgment (see Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d at 138;Alvarez v Prospect Hosp., 68 NY2d at 324). The parties' remaining contentions lackmerit.
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order andamended order are affirmed, without costs.
Footnote *: In 1957, the Town adopted azoning ordinance permitting, with a special use permit, excavation of mineral deposits in areaszoned agricultural. In 1979, the Town adopted a zoning ordinance that amended, among otherthings, district boundaries and also set forth certain changes to the uses permitted by a specialpermit in areas zoned agricultural.