NY Appellate Court Finds Special Use Permit for Quarry was Valid Despite Originally Containing Improper Conditions

This post was authored by Matthew Loescher, Esq.

Petitioners were the owners or operators of a quarry located on property situated in an A-1 Agricultural zone in the Town of Marshall. Pursuant to the Town’s Zoning Ordinance, mining was permitted in such districts by special use permit (SUP). In 2012, petitioners applied to the Zoning Board of Appeals of Town of Marshall (ZBA) for an SUP. The ZBA issued an SUP to petitioners approving the application for mining at the property, subject to numerous conditions; however, the ZBA adopted a resolution in 2019 recognizing that those conditions were “not enforceable”. Petitioners applied to the Department of Environmental Conservation (DEC) for a mining permit, which was granted in October 2018, and a modified DEC mining permit, which allowed blasting and drilling. Daniel J. Ford, the Code Enforcement Officer (CEO), issued a “Stop Work Order” (SWO), directing that petitioners desist from any mining at the property. After the ZBA issued a resolution in 2020 determining that the purported SUP was “null and void” and affirming the Stop Work Orders, Petitioners commenced this action, seeking a judgment declaring that respondents’ attempt to regulate petitioners’ mining operation was superseded and unenforceable pursuant to the Mined Land Reclamation Law (MLRL).

On appeal, the court found that although the SUP contained certain invalid conditions, the ZBA’s conclusion that there was never a valid SUP was not supported by substantial evidence. The record reflected that the Town’s attorney acknowledged in a 2019 letter to the ZBA that a “special use permit” had been issued in 2013, albeit with “improper” conditions. Moreover, the ZBA properly concluded in its 2019 resolution that those conditions “included in the Special Use Permit” were “not enforceable,” inasmuch as they related to “the specifics of the extractive mining or reclamation. Accordingly, respondents’ attempts to regulate petitioners’ mining operation was prohibited by the MLRL.

Schachtler Stone Prodcuts, LLC v Town of Marshall, 2022 WL 5406399 (NYAD 4 Dept. 10/7/2022)