Failure to Obtain a Special Use Permit Does Not Preclude, as a Matter of Law, the Establishment of a Vested Right to a Nonconforming Use

The Third Department determined there were questions of fact re: whether the petitioner, the owner of a quarry, had a vested right to mine property it had purchased adjacent to the quarry, which had been in operation since the 1890’s.  The court held that the petitioner’s failure to obtain a special permit for the newly-acquired property did not preclude, as a matter of law, the establishment of prior nonconforming use rights:

The Court of Appeals has repeatedly rejected the notion that “permits are a prerequisite to establishing prior nonconforming use rights” … . Thus, although a special permit was required for mining operations between 1975 and 2005, petitioner’s failure to obtain one does not, as a matter of law, preclude it from establishing that it has a vested right to mine on its property notwithstanding a current or future prohibitive zoning ordinance … . Matter of Cobleskill Stone Prods., Inc. v Town of Schoharie, 2015 NY Slip Op 01851, 3rd Dept 3-5-15