Posted by: Patricia Salkin | July 14, 2012

NY Appellate Court Finds Specific Prior Use of Land for Mining Required for Owners to Obtain Vested Rights to Mining Following New Zoning Law

Petitioner, Cobleskill Stone Products, owned a quarry in the Town of Schoharie that had been in use for mining since the 1890s. Traditionally mining in the area required a special permit, but as a prior nonconforming use, the quarry did not require approval. Petitioner expanded onto new property, which did require a permit. After a permit was obtained petitioner subsequently purchased additional property to the south and sought to amend its permit to include the new property. While the application was pending the town adopted a new zoning law that prohibited mining in the area.

The Appellate Division Court reversed the judgment of the lower court, this time in favor of the respondents, Town of Schoharie. The court reasoned that a municipality is free to alter its zoning regulations and no vested right exists to have the existing zoning ordinance continue unchanged as long as the police power has been rationally exercised and the zoning is done for the well-being of the community. However, landowners do have a right where the property was used for nonconforming purposes at the time the zoning ordinance became effective. In this instance, mining was never conducted or permitted on the property in question. In addition, Cobleskill Stone Products had not made the costly infrastructure improvements needed to mine the property.

Furthermore, past decisions have taken into consideration whether the property interest affected by the particular ordinance is too substantial to justify its deprivation. Things like prior zoning restrictions as well the impact of the property use on the greater community should be considered. Here, all of the property was acquired after the Town’s adoption of the 1974 zoning ordinance and petitioner was aware that the town would need to issue a mining permit. Also, given the property’s proximity to populated areas and historic sites, it was arguably not in the best interest of the greater community.

Cobleskill Stone Products, Inc. v. Town of Schoharie, 2012 WL 1948307 (NYAD 3 Dept.  5/31/2012)

The opinion can be accessed at:

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