Concluding that due to the peculiar nature of quarrying, it is unrealistic and unreasonable to require the owner of a large tract of land used for quarrying to have actively mined all areas of the parcel prior to the enactment of a zoning ordinance for purposes of acquiring vested rights in a nonconforming use to protect its mining operation, the New York Court of Appeals found that the owner did demonstrate evidence to support a vested right to a nonconforming use over some of the parcels, and that questions of fact remained to be resolved over the two remaining subparcels.  

The owner of approximately 280 acres of property within the Town sought a declaration that all of its property located outside of the Town’s “AG-Special Aggregate District” is permitted as a nonconforming use, although it currently only operates a hard rock quarry on approximately one half of its land. The quarry, which had been acquired through a series of land transactions between 1929 to 1991, had been operating since 1929, long before the adoption of the 1942 zoning ordinance (amended in 1969) that included the land where active quarrying was taking place. The quarry consists of mineral extraction sites located primarily at the center of the property, as well as processing areas, buffer zones and roads. At issue was not the land where the activities were currently taking place, but rather the other half of the land owned by the mining company, mainly areas maintained as mineral reserves, and hence these lands had not been quarried. The appellate court concluded that most of this land was not entitled to nonconforming use status because the owner failed to establish substantial quarrying activities on the parcels prior to the adoption of the 1969 zoning ordinance. The court noted that intent to the use land for quarrying is not sufficient for nonconforming use status to attach, and noted that there was no evidence of infrastructure devoted to supporting the mining operation on these lands, and that the parcels were physically separated from the other mining operations. To this last point, the Court cited prior precedent holding that “it [is not] possible to extend the protection of a permitted nonconforming use established on one parcel of land to physically separate though adjoining parcels.” (See, Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278 at 286). The Court also determined that the owner failed to establish that it conducted some prior mining operations on the subparcels that evidenced “an intent to appropriate the entire parcel” for such operations. Although the owner applied for and was issued mining permits in 1955 and 1960 for such use, no activities were undertaken pursuant to those permits. The court noted that “self-serving acts of a very limited nature [that cannot be deemed to] have thrown a protective mantle of nonconforming use over [plaintiff’s] entire parcel of land as against a later prohibitory zoning ordinance.” (citing again to Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278 at 286).

In modifying the appellate decision, the New York Court of Appeals noted that courts and municipal officials have a “grudging tolerance” for the law of nonconforming uses which generally protects uses in existence at the time a zoning ordinance is adopted, while viewing nonconforming uses as detrimental to the zoning scheme and favoring reasonable restrictions over such uses and their eventual elimination. The Court of Appeals noted that while every inch of the land need not have been used for stated purpose for vested nonconforming rights to attach, utilizing just a small portion of the land may not be enough to trigger nonconforming status.  In explaining that with respect to quarrying operations, a prior nonconforming use cannot be limited solely to the land that was actually excavated before the zoning law went into effect, the Court said that mining is a unique industry since landowners commonly leave portions of their land as mineral reserves to be excavated at a future time. Therefore, owners may establish a nonconforming use extending to boundaries of their property notwithstanding the fact that quarrying may not have actually taken place in particular areas. However, the Court said that this does not give quarrying companies “carte blanche” to engage in future quarrying operations on the property.  Rather, as here, the owners and its predecessors acquired the property exclusively for mining and quarrying operations, noting that no part of the land was used for any other purpose.  Further, the a processing structure was constructed in the center of the property where bulk materials had been removed for decades, and service roads had been constructed to move the materials after processing.  The court also noted that the processing plant contains a building for packaging materials, a repair shop and offices.  Similar to their analysis in Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, the Court said the nonconforming use extends throughout the property even though the principal excavation was limited in geographic area.

Turning to the four specific geographic areas in dispute, the Court concluded that as to subparcel 5, the owners and their predecessors had prepared maps of the area to survey potential areas to excavate, they put in place 6,000 feet of 16-inch piping from the property to the pumping station, they engaged in negotiations with the Town from 1963 to 1969 to relocate a road for unfettered use of its entire parcel for mining (putting the Town on notice of their intent to use the land for quarrying), they sent letters to the Town expressing an intent to mine in 1963, they made preparations for removal of dirt to allow for excavation, and they drilled auger holes identifying areas for mining. Although a road separated this subparcel from the aggregate zone, the Court said that this narrow roadway was not an impasse cutting off the subparcel from the contiguous parcels. Here, the Court concluded, the company appropriated the subparcel as a reserve for quarrying, and it was not seeking to extend its nonconforming use, rather, it was seeking to realize its vested right to use the land for quarrying purposes.  Finally, the Court noted that there was no evidence that the road “is a physical separation that alters the nature and character of the property, such that it would render a quarrying operation as foreign, unexpected or adverse to the area.”

With respect to subparcel 25D, which had been leased for the sole purpose of mining, the Court noted it was undisputed that the region is contiguous with the areas that have been extensively quarried. At issue, however, is a question of fact as to when the owner received legal title to the land (e.g., whether it was before the 1969 ordinance), and whether the parcel was acquired by the owner’s predecessors (mining companies).  The Court said that if the parcel was part of a subparcel actively quarried, then it would be entitled to nonconforming use status.

With respect to the three roadway subparcels, the Court said it was unclear whether these areas/highways were abandoned by the Town or in use prior to the 1969 ordinance.  The Court said that if the Town had abandoned them for six years prior to the 1969 ordinance, then the quarrying company would be entitled to prior nonconforming use of these areas since although they may be abandoned, this fact would not curtail any right to enjoyment that the public may have had in these areas, and it may have created a property right for the abutting property owners here (to wit, an easement of access to abutting streets).

Lastly, with respect to subparcels that were leasehold interests before the 1969 ordinance, and located contiguous to the immediate south of the AG district, the Court noted that arial maps showed that the areas were cleared, grubbed and stripped of topsoil before 1969, and that they had been the subject of quarrying permits before that time as well. Therefore, nonconforming use rights attached to these parcels since there was a clear intent to quarry these areas at a future time.  

In summary, the Court found that since quarrying involves a gradual unearthing of minerals, excavation of all parts of a large parcel do not occur at the same time.  Here, the company and its predecessors demonstrated that the land had been used exclusively for quarrying for decades.  Therefore, all of the parcels are entitled to nonconforming use status except for subparcel 25D and the roadway properties where issues of fact remain.

 Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 2009 WL 1850964 (NY 6/30/2009).

 The opinion can be accessed at: http://www.nycourts.gov/ctapps/decisions/2009/jun09/118opn09.pdf