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THE QUARRY OWNER HAD, AS A PRE-EXISTING NONCONFORMING USE, A VESTED RIGHT TO MINE THAT PORTION OF ITS LAND SUBJECT TO A PENDING APPLICATION FOR A PERMIT FROM THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP); ZONING BOARD AND SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner had a vested right to mine that portion of its land subject to a pending application for a mining permit from the Department of Environmental Protection (DEP). Petitioner operated a quarry, which was an allowed pre-existing use of the land, and had a DEC permit to mine 37.5 acres (the entire parcel is 241 acres) The petitioner was seeking a permit from the DEC to expand the number of acres to be mined from 37.5 acres to 94 acres. While the application for the permit was pending, the town enacted a new zoning law that allowed mining on only those lands subject to an existing DEC permit. Petitioner sought a declaration that it had a vested right to mine its entire parcel as a prior nonconforming use and Supreme Court dismissed the proceeding:

” [N]onconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance'” … . ” By its very nature, quarrying involves a unique use of land. . . . [A]s a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed'” … . “[W]here . . . the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of [the] protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property” … . …

… [T]he petitioner demonstrated that it has a vested right to mine those 94 acres as a prior nonconforming use … . In opposition, the respondents/defendants failed to raise a triable issue of fact. Further, for the same reasons, the petitioner demonstrated that so much of the ZBA’s determination as found that the petitioner does not have a vested right to mine those 94 acres was affected by an error of law, arbitrary, and capricious … . …

Accordingly, the Supreme Court should have granted the petitioner’s motion to the extent of declaring that the petitioner has a vested right to mine 94 acres of its property as a prior nonconforming use … . Matter of Red Wing Props., Inc. v Town of Rhinebeck, 2020 NY Slip Op 03119, Second Dept 6-3-20

 

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