Posted by: Patricia Salkin | May 20, 2012

NY Appellate Court Holds that Zoning Law is Ambiguous as to Mining Use Since Although it is Not Specifically Allowed the Use Exists in the Town

Petitioners sought to mine minerals on their property in the town of Sullivan by applying for a special use permit.  The town tabled the application for almost five years while both the planning board and the zoning board of appeals debated the application and encouraged the other to issue a ruling.  Eventually, the zoning board of appeals decided that mining minerals was prohibited, with or without a special use permit.  Petitioners challenged this decision in a CPLR Article 78 proceeding.  The state supreme court dismissed petitioner’s claims.  Petitioners appeal, and allege that the town law is ambiguous as to whether or not it allows mining of minerals.

The court begins by explaining that although it must give deference to the zoning board of appeals’ interpretation of a zoning law, if it is a purely legal interpretation, they need not defer.  First, the court explores the town law.  In the town of Sullivan, the court finds that the zoning regulations discussing the use of land is set out in the “zoning schedule.”  Similarly, the zoning law discussing special uses is also included in the zoning schedule.  The court finds that mineral resource uses are not listed as a permitted use in an agricultural district. 

The respondent argues, and the court initially agrees, that as a basic rule, where permitted uses are listed in a zoning ordinance, all others are prohibited.  The court finds, however, that mineral resource uses are not listed anywhere in the zoning schedule as permitted uses.  Although not listed, the court further finds that there are existing mining and quarrying operations in the town and that under zoning law standards of review, there is a specific standard for a special use permit for mineral resources.  Thus, the court finds the zoning law “so poorly written . . . as to be ambiguous.”  Therefore, the court construes any ambiguity in favor of the petitioner and finds that the zoning board’s determination was both unreasonable and irrational.  The court annuls the zoning board’s decision and grants petitioner their requested relief.

Subdivisions, Inc. v. Town of Sullivan, 92 A.D.3d 1184 (N.Y.A. D. 3d Dep’t 02/23/2012)

The opinion can be accessed at:

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