Plaintiffs owned a 50 acre parcel intended to be used as a construction and demolition (C & D) landfill. They obtained a special use variance to use the entire parcel for this purpose, subject to DEC approval, which was later granted for three acres of the property. In 2005, however, the town adopted a zoning law prohibiting the “expansion of any landfill beyond the area and scope allowed under the operators [sic] permit from the DEC…” Plaintiffs sought a declaration that the zoning law could not validly be applied to their property because the use variance and their use of the property established a vested right to use the entire parcel for landfill purposes. The Appellate Division ruled in the town’s favor, because the plaintiffs’ DEC permit only covered three acres of the property, but the Court of Appeals reversed and ruled in favor of the plaintiffs.
The Court of Appeals based its holding on a series of mining cases, observing that “mining, unlike other types of nonconforming uses, is unique in that it ‘contemplates the excavation and sale of the corpus of the land itself as a resource’…. Thus, ‘as 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…until they are actually needed.’” Thus, mine owners need not have a permit to mine their entire property in order to obtain vested rights to excavate areas not immediately in use, so long as they demonstrate an intention to eventually use a larger area for mining activities. Because landfilling operations are substantially similar to quarries and mining operations in the sense that they necessarily envision a staged consumption of land over time, the court concluded that “[t]he fact that the DEC permit covered only a limited area is not determinative of plaintiffs’ rights over the remaining 47 acres of the parcel…. Instead, the factors to examine are whether the operation of a C & D landfill was a lawful use on the property prior to the enactment of the 2005 zoning law and whether plaintiffs’ activities before that time manifested an intent to utilize all of their property in a manner consistent with that purpose.” Based on the plaintiffs’ permit and their substantial investment in the property and in necessary heavy equipment, the Court determined that they had acquired a vested right to operate their landfill on the entire parcel.
Jones v. Town of Carroll, 2010 WL 2399642(NY 6/17/2010)
The opinion can be accessed at: http://www.courts.state.ny.us/ctapps/decisions/2010/jun10/107opn10.pdf
