Posted by: Patricia Salkin | March 26, 2015

NY Appellate Court Holds Failure to Obtain Special Permit Did Not Preclude Ability to Establish a Vested Right to Mine on Property

Petitioner operated a quarry in the Town of Schoharie, Schoharie County, which had been in operation since the 1890s. Pursuant to respondent Town of Schoharie’s 1975 zoning ordinance, “commercial excavation or mining” was a permitted use upon receipt of a special permit from the Town. Petitioner purchased an additional parcel of real property to the south of the areas that it actively mined, and then commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking a judgment declaring that it had a vested right to quarry as a preexisting nonconforming use under Local Law No. 2 and any subsequently enacted prohibitory zoning amendment. The Supreme Court granted petitioner’s motion for partial summary judgment on this cause of action.

The court reasoned that although a special permit was required for mining operations between 1975 and 2005, petitioner’s failure to obtain one did not, as a matter of law, preclude it from establishing that it has a vested right to mine on its property notwithstanding a current or future prohibitive zoning ordinance. Because of this, the court found the Supreme Court erred in granting partial summary judgment to respondents dismissing the vested right cause of action based on petitioner’s failure to obtain a special permit pursuant to the 1975 zoning ordinance. Finally, the court found that the Supreme Court’s judgment, partially granting the petition and annulling Local Law No. 2, did not render the appeal moot; if a new zoning ordinance with the same prohibition against mining were to be enacted, a declaration that petitioner had a vested right as against the earlier law would affect the rights of the parties. Accordingly, the order of the Supreme Court was dismissed.

Cobleskill Stone Products, Inc. v Town of Schoharie, 2015 WL 919683 (NYAD 3 Dept. 3/5/2015)

The opinion can be accessed at:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: