| Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie |
| 2012 NY Slip Op 04263 [95 AD3d 1636] |
| May 31, 2012 |
| Appellate Division, Third Department |
| In the Matter of Cobleskill Stone Products, Inc.,Respondent, v Town of Schoharie et al., Appellants. |
—[*1] Stack Law Office, Syracuse (Rosemary Stack of counsel), for respondent.
Peters, P.J. Appeal from a judgment of the Supreme Court (Devine, J.), entered May 11,2011 in Schoharie County, which, in a combined proceeding pursuant to CPLR article 78 andaction for declaratory judgment, granted petitioner's motion for partial summary judgmentdeclaring that it had secured vested rights to quarry a certain parcel of property as a preexistingnonconforming use.
Petitioner owns a quarry on land north of Rickard Hill Road in the Town of Schoharie,Schoharie County that has been in operation since the 1890s. While mining in the area required aspecial use permit under the zoning ordinance adopted by the Town in 1975, as a priornonconforming use, the quarry did not require approval. Expansion of the quarry onto newproperty, however, required approval, and petitioner obtained permission to do so in the 1990s,relocating the road so that mining activities occurred exclusively to the north of it.
Petitioner subsequently purchased additional property to the south of the road and sought toamend its Department of Environmental Conservation mining permit to include its previouslyunmined holdings (hereinafter referred to as the southern property). While that application waspending—one that, notably, was not accompanied by an application to respondent Town ofSchoharie for a special use permit—the Town adopted a new zoning law that prohibitedmining in the area. Petitioner responded by commencing this combined CPLR [*2]article 78 proceeding and declaratory judgment action and, as isrelevant here, asserted that it had a vested right to quarry the southern property. Followingjoinder of issue and discovery, Supreme Court granted petitioner's motion for partial summaryjudgment on that claim. Respondents appeal, and we reverse.
A municipality is free to alter its zoning regulations, and no vested right exists "to have theexisting zoning ordinance continue unchanged if the Town Board has rationally exercised itspolice power and determined that a change in the zoning was required for the well-being of thecommunity" (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 684[1996]). Landowners do, however, have a vested right where the subject property was "used forthe nonconforming purpose, as distinguished from a mere contemplated use, at the time thezoning ordinance became effective" (Matter of Syracuse Aggregate Corp. v Weise, 51NY2d 278, 284-285 [1980]; see Jones vTown of Carroll, 15 NY3d 139, 143 [2010]; Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88,98 [2009]). In light of the unique nature of quarrying, while that use need not consist of actualmining or even require a permit to do so, petitioner must have engaged in "specific actionsconstituting an overt manifestation of its intent to utilize the property for the ascribed purpose atthe time the zoning ordinance became effective" for a vested right to attach (Buffalo CrushedStone, Inc. v Town of Cheektowaga, 13 NY3d at 98).
Assuming without deciding that petitioner met its initial burden of demonstrating that itsactions extended beyond "merely preparing to engage in a quarrying enterprise or 'undertaking afew self-serving acts of a very limited nature' " on the southern property (id. at 99,quoting Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d at 286), respondentshave amply demonstrated questions of fact that preclude a grant of summary judgment. Althoughpetitioner has done some work related to the amendment of its state mining permit, mining hasnever been conducted or permitted on the southern property, which remains largely undisturbedand has been used by petitioner and its predecessors in title for residential and agriculturalpurposes. Moreover, petitioner has not made the costly infrastructure improvements needed tomine the property, such as installing multiple ramps, a tunnel and a conveyor system (cf. Glacial Aggregates LLC v Town ofYorkshire, 14 NY3d 127, 137 [2010]).
Furthermore, the finding of a vested right amounts to a determination "that the propertyinterest affected by the particular ordinance is too substantial to justify its deprivation in light ofthe objectives to be achieved by enforcement of the provision," and thus it is appropriate toassess petitioner's property interest in light of those objectives (People v Miller, 304 NY105, 108 [1952]; accord Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d at 135;see Preble Aggregate v Town of Preble, 263 AD2d 849, 851 [1999], lv denied 94NY2d 760 [2000]). Factors such as the effect of prior zoning restrictions on the property, as wellas the impact the property use will have on the greater community, must be considered in order todetermine if petitioner's property rights were inequitably burdened (see Buffalo CrushedStone, Inc. v Town of Cheektowaga, 13 NY3d at 100-101; Preble Aggregate v Town ofPreble, 263 AD2d at 851; Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339,341-342 [1965], affd 19 NY2d 739 [1967], appeal dismissed and cert denied 389US 214 [1967]). All of the southern property was acquired after the Town's adoption of the 1975zoning ordinance and, as such, petitioner was aware that the Town would have to permit anyexpansion of mining upon it as a special use (see Preble Aggregate v Town of Preble,263 AD2d at 851; cf. Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d at 136).Petitioner failed to seek that approval and, indeed, it arguably would not have been forthcominggiven the property's proximity to populated areas, historic sites and a park that would allegedlysuffer significant economic and environmental impacts from the [*3]proposed expansion (see Matter of Dolomite Prods. Co. vKipers, 23 AD2d at 342-343; New York Trap Rock Corp. v Town of Clarkstown, 1AD2d 890, 891 [1956], affd 3 NY2d 844 [1957], appeal dismissed 356 US 582[1958]). Viewing this evidence in the light most favorable to respondents (see Panasia Estates, Inc. v Hudson Ins.Co., 10 NY3d 200, 202 n [2008]), questions of fact exist as to whether petitioner has avested right to mine the southern property, and Supreme Court erred in granting petitioner'smotion (see Subdivisions, Inc. v Townof Sullivan, 75 AD3d 978, 980-981 [2010]; Preble Aggregate v Town of Preble,263 AD2d at 851-852).
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, and motion denied.