| Matter of Subdivisions, Inc. v Town of Sullivan |
| 2012 NY Slip Op 01404 [92 AD3d 1184] |
| February 23, 2012 |
| Appellate Division, Third Department |
| In the Matter of Subdivisions, Inc., et al.,Appellants, v Town of Sullivan et al., Respondents. |
—[*1] Scott F. Chatfield, Marietta, for Town of Sullivan, respondent. Coulter, Ventre & McCarthy, L.L.P., Liverpool (Robert D. Ventre of counsel), for ZoningBoard of Appeals of the Town of Sullivan, respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Cerio Jr., J.), entered November19, 2010 in Madison County, which dismissed petitioner's application, in a proceeding pursuantto CPLR article 78, to review a determination of respondent Zoning Board of Appeals of theTown of Sullivan finding that mineral resource uses are prohibited in agricultural districts.
The relevant facts are more fully set forth in our prior decisions (86 AD3d 830 [2011]; 75AD3d 978 [2010]). The instant CPLR article 78 proceeding is an offshoot of an underlyingdeclaratory judgment action, which involves a protracted zoning dispute as to petitioners'entitlement to nonconforming use status for an 80-acre parcel of land (hereinafter the subjectparcel) owned by petitioner Subdivisions, Inc. and located on County Route 23, commonlyknown as Quarry Road, in the Town of Sullivan, Madison County. Historically, Subdivisions'predecessors in interest mined both the subject parcel, which lies on the east side of Quarry Roadand is zoned for agricultural use, as well as another parcel, which lies on the west side of QuarryRoad and is zoned for industrial use.[*2]
In 2004, prior to the commencement of the declaratoryjudgment action, petitioners applied for a special use permit seeking to mine minerals on thesubject parcel. For reasons that are not entirely clear from the record, the Planning Board ofrespondent Town of Sullivan tabled petitioners' application and, for nearly five years, thePlanning Board and respondent Town of Sullivan Zoning Board of Appeals (hereinafter ZBA)debated the issue—with each entity, in effect, looking to the other to render aruling.[FN1]In January 2009, the ZBA concluded that a then recently enacted local law, which establishednew districts relative to mining and quarrying operations, rendered petitioners' application moot.Petitioners challenged that determination and, in March 2010, Supreme Court, among otherthings, annulled both the local law and the ZBA's determination and directed that a hearing beheld for the purpose of ascertaining whether the Town's 1979 zoning law prohibited miningand/or quarrying on the subject parcel.
Following that hearing in May 2010, the ZBA found that "mineral resource uses areprohibited in agricultural districts under the 1979 [zoning law], either with or without theissuance of a special use permit," and petitioners thereafter commenced this CPLR article 78proceeding to challenge that determination. By order entered November 19, 2010, SupremeCourt dismissed petitioners' application, finding that the ZBA's interpretation of the Town's 1979zoning law was neither irrational nor unreasonable. Petitioners now appeal, contending that theTown's zoning law is ambiguous.
When a reviewing court is confronted with an allegedly ambiguous zoning law, it generallywill grant great deference to the ZBA's interpretation thereof—disturbing suchinterpretation "only if it is irrational or unreasonable" (Matter of Mack v Board of Appeals, Town of Homer, 25 AD3d977, 980 [2006]; see Matter ofBlalock v Olney, 17 AD3d 842, 843-844 [2005]; Matter of Bonded Concrete vZoning Bd. of Appeals of Town of Saugerties, 268 AD2d 771, 773 [2000], lv denied94 NY2d 764 [2000]). If, however, the issue presented is one of pure legal interpretation of theunderlying zoning law or ordinance, deference is not required (see Matter of Mack v Board ofAppeals, Town of Homer, 25 AD3d at 980; Matter of Blalock v Olney, 17 AD3d at844). As zoning regulations are in derogation of the common law, they must be strictly construedagainst the municipality that enacted them and "any ambiguity in the language employed must beresolved in favor of the property owner" (Matter of Bonded Concrete v Zoning Bd. ofAppeals of Town of Saugerties, 268 AD2d at 774; see Matter of Arceri v Town of Islip Zoning Bd. of Appeals, 16 AD3d411, 412 [2005]; Matter ofNicklin-McKay v Town of Marlborough Planning Bd., 14 AD3d 858, 863 [2005]).
Pursuant to the terms of the Town's zoning law, "the regulations limiting the use of buildingsand land" are set forth in the accompanying "zoning schedule" (Town of Sullivan Zoning Law,art IV, § 7). This zoning schedule, in turn, lists—for each of the zoning districtsestablished thereunder (see Town of Sullivan Zoning Law, art III, § 3)—the"principal" or primary uses "either permitted by right . . . or upon approval of aspecial permit" (Town of [*3]Sullivan Zoning Law, Appendix A,Zoning Schedule n 10). The corresponding provisions of the zoning law governing the issuanceof special use permits also refer back to the zoning schedule, noting that "[s]pecial [u]ses to beconsidered by the Planning Board are listed in the [z]oning [s]chedule" (Town of SullivanZoning Law, art V, § 9 [C]). As relevant here, "special uses" in an agricultural districtinclude "tourist home, veterinary, cemetery, hotel/motel, club, motor [vehicle] wrecking yard,riding stable [and] mobile dwelling (farm use)" (Town of Sullivan Zoning Law ZoningSchedule).
In support of their argument that mineral resource uses are prohibited in an agriculturaldistrict, respondents note that "[i]t is a basic tenet of zoning jurisprudence that an ordinancewhich lists permitted uses excludes any uses that are not listed" (Incorporated Vil. of OldWestbury v Alljay Farms, 100 AD2d 574, 575 [1984], mod 64 NY2d 798 [1985];see Matter of Moody Hill Farms v Zoning Bd. of Appeals of Town of N. East, 199 AD2d954, 956 [1993], lv denied 83 NY2d 755 [1994]). As mineral resource uses are not listedon the zoning schedule as permitted uses in an agricultural district (either as of right or with aspecial use permit), the argument continues, it necessarily follows that such uses are prohibited.
The flaw in respondents' argument on this point is that mineral resource uses are notexpressly listed as permitted uses anywhere in the zoning schedule. Hence, a literalapplication of the foregoing legal principle to the Town's zoning schedule would lead to theinevitable conclusion that mining or quarrying operations are not permissible anywhere in theTown, which plainly is not the case—as evidenced by, among other things, the existingmining/quarrying operations on the west side of Quarry Road.[FN2]That mineral resource uses are both permissible under and contemplated by the Town's zoninglaw—albeit in some undefined location—also is apparent upon review of theprovision of the law governing the issuance of special use permits (see Town of SullivanZoning Law, art V, § 9 [C]). This provision sets forth the additional standards of reviewthat are to be employed when evaluating an application for a special use permit for certainexpressly delineated uses—including, insofar as is relevant here, mineral resource uses.Simply put, if the issuance of a special use permit for mineral resource uses was not permissibleunder the Town's zoning law, there would be no need to specify the particular standards to beconsidered in the evaluation thereof. Although respondents argue that this section of the Town'szoning law only speaks to the issuance of special use permits for mineral resource uses wheresuch uses are allowed, that claim only begs the question of where—on the face of thezoning schedule—that might be.
Although we appreciate that a municipality cannot be expected—when crafting azoning ordinance—to anticipate each and every potential use to which a property ownermay wish to put his or her property, the zoning law here is, in our view, so poorly written withrespect to identifying the zoning district(s) within which mineral resource uses are permitted asto be ambiguous. As such ambiguity must be resolved in favor of petitioners (see Matter ofArceri v [*4]Town of Islip Zoning Bd. of Appeals, 16 AD3dat 412; Matter of Nicklin-McKay v Town of Marlborough Planning Bd., 14 AD3d at 863;Matter of Bonded Concrete v Zoning Bd. of Appeals of Town of Saugerties, 268 AD2dat 774), we conclude that the ZBA's determination that "mineral resource uses are prohibited inagricultural districts under the 1979 [zoning law], either with or without the issuance of a specialuse permit," is unreasonable and irrational. Accordingly, the ZBA's determination is annulled,and the underlying petition is granted to that extent.
As a final matter, although admittedly discussed in the context of ascertaining whether theTown's zoning law was ambiguous, we disagree with Supreme Court's related conclusion that thePlanning Board is not authorized to issue special use permits for mineral resource uses. While theTown's governing body indeed is empowered to delegate or reserve unto itself the authority toissue special use permits in conformity with the Town's zoning law (see Town Law§ 274-b [2]; Rice, Practice Commentaries, McKinney's Cons Laws of NY, Book 61, TownLaw § 274-b, at 7), we are unable to discern anything in the 1979 version of the zoning lawitself that precludes the Planning Board from entertaining such an application in the firstinstance.[FN3]
Rose, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, petition granted to the extent set forth herein anddetermination annulled.
Footnote 1: While petitioners' applicationfor a special use permit was pending before the Planning Board, they apparently sought (or weredirected to seek) an interpretation—first from the Town's zoning enforcement officer andultimately from the ZBA—of the Town's zoning law relative to the issue of whethermining was permitted in an agricultural zone. This request ultimately triggered the determinationthat gave rise to this proceeding.
Footnote 2: While it is true that suchoperations are conducted within the confines of a special industrial district expressly created bythe 1979 zoning law to encompass petitioners' quarrying activities at that location, this does notchange the fact that the zoning schedule itself—the document purportedly setting forth allland use restrictions and regulations for the Town—makes no express reference to mineralresource uses.
Footnote 3: That is not to say that petitionersare entitled to a special use permit for mineral resource uses on the subject parcel only that thePlanning Board can (and should) review petitioners' application on the merits and, after dueconsideration of the relevant standards, approve or deny it.