Posted by: Patricia Salkin | July 9, 2019

NY Appellate Court Denies Appeal as Moot Following Annulment of Local Law Prohibiting Mining

This post was authored by Matthew Loeser, Esq.

Petitioner Cobleskill Stone Products, Inc. operated a quarry in the Town of Schoharie, 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. In 2000, while the 1975 ordinance was in effect, petitioner purchased an additional parcel of real property to the south of the areas that it was actively mining. Petitioner then sought to amend its Department of Environmental Conservation (“DEC”) mining permit in January 2005 to include the southern property and other adjacent property that it owned which remained unmined and unpermitted. During the pendency of that application, the Town enacted a new zoning ordinance, Local Law No. 2 of the Town of Schoharie, which, prohibited mining where the southern property was located. Petitioner 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.


While an appeal was pending, the Supreme Court adjudged Local Law No. 2 to be null and void for noncompliance with certain procedural requirements of the State Environmental Quality Review Act. As such, the 1975 ordinance was revived. Although petitioner applied for a special permit pursuant to the 1975 ordinance following this, the Town enacted a moratorium on special permits for mining, effective May 2014. In December 2015, the Town enacted Local Law No. 3 of the Town of Schoharie, which again rezoned significant portions of petitioner’s property and prohibited commercial mining and excavation. As the case neared trial, respondents made a motion in limine to exclude from trial any evidence relating to efforts undertaken or expenses incurred by petitioner after the date that the Town adopted Local Law No. 2 in 2005. The Supreme Court granted respondents’ motion in full, and petitioner appealed. The court reversed, holding the Cobleskill’s use of its property did not become nonconforming for purposes of its vested rights claim until town adopted local law which again rezoned it.


In this case, petitioner argued that Supreme Court erroneously found that the adoption date of the now null and void Local Law No. 2 controlled for the purpose of evaluating its prior nonconforming use rights. The court found that its most recent holding made it clear that “evidence regarding petitioner’s intent postdating the enactment of Local Law No. 2 could not be categorically precluded from the joint trial”. Since petitioner already obtained its sought-after relief by virtue of the court’s February 2019 decision, the instant appeal was rendered moot. As the narrow exception to the mootness doctrine did not apply, the appeal was dismissed.


Cobleskill Stone Products, Inc. v. Town of Schoharie, 2019 WL 2528654 (NYAD 3 Dept. 6/20/2019)

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