Posted by: Patricia Salkin | August 20, 2010

Summary Judgment Unwarranted Where Record is Unclear as to Prior Mining Activities on Land

In a dispute centered on whether the plaintiffs are entitled to nonconforming use status for an 80-acre parcel of vacant land, which had been used for mining more than 100 years ago, which was also subject to separate litigation as to whether the owners were now entitled to special use permits and whether mining is permitted under the applicable zoning law, the current action seeks a declaration that all of the zoning restrictions applicable to mining are void as to the plaintiffs. The plaintiffs moved for summary judgment, the town sought dismissal of the action, and the zoning board sought to intervene in the action.

First addressing the zoning board’s request for intervention, the New York appeals court agreed that the board should be permitted to intervene since it would be bound by the judgment of the court in the matter, especially in light of pending matters involving overlapping issues related to how the subject parcel is zoned and what activities are permitted thereon.

The appeals court also agreed that the court below properly denied the motion for summary judgment, noting that in the mining industry, prior nonconforming use status could be extended to unquarried portions of the property where the landowner can sufficiently demonstrate that prior to the passage of the zoning law, it or its predecessors engaged in substantial quarrying activities on a portion of the land with the intention to do the same on unquarried portions of the same property. Noting that a mere contemplation, lacking evidence of intention, will not suffice, the Court determined that the record here was unclear as to what exactly existed at the time of the applicable zoning, and that lack of a specific time frame, and merely vague statements that actual mining has occurred on portions of the property is insufficient to establish an entitlement to summary judgment.

Subdivisions, Inc. v Town of Sullivan, 2010 WL 2853112 (N.Y.A.D. 3 Dept. 7/22/2010).

The opinion can be accessed at:

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