New York Law Review

Tag: Quarrying

  • Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88 (2009): Establishing Prior Nonconforming Use for Quarrying Operations

    13 N.Y.3d 88 (2009)

    A quarrying company can establish a prior nonconforming use for its entire property, including areas held in reserve for future excavation, if it demonstrates a clear intent to use the property for quarrying purposes, even if actual excavation has not occurred on every portion of the land before the enactment of restrictive zoning ordinances.

    Summary

    Buffalo Crushed Stone (BCS) sought a declaratory judgment that zoning restrictions were void on unexcavated portions of its quarry. The Town of Cheektowaga argued its zoning ordinances were enforceable. The Court of Appeals held that BCS demonstrated a prior nonconforming use for most of its property, including areas held as mineral reserves, due to its long-standing quarrying operations and expressed intent to utilize the entire property for that purpose. However, factual issues remained regarding specific subparcels, requiring further inquiry.

    Facts

    BCS and its predecessors operated a hard-rock quarry on approximately 280 acres in Cheektowaga for 80 years. The land was acquired between 1929 and 1992 and dedicated exclusively to quarrying. The disputed subparcels were primarily mineral reserves not yet actively quarried. The Town enacted zoning ordinances in 1942 and 1969. The 1969 ordinance permitted continuation of nonconforming activities but prohibited their extension or enlargement. BCS argued it had a prior nonconforming use right for the unexcavated areas.

    Procedural History

    BCS sued for a declaratory judgment. The Supreme Court ruled that some subparcels had nonconforming use status, while others did not. The Appellate Division modified, granting the Town summary judgment on additional subparcels. The Court of Appeals modified the Appellate Division order, finding in favor of BCS on some parcels and remanding others for further proceedings.

    Issue(s)

    1. Whether BCS established a prior nonconforming use for subparcel 5, despite the presence of Indian Road dividing it from actively quarried areas.
    2. Whether BCS established a prior nonconforming use for subparcel 25D, considering the timing of its acquisition and the existence of quarrying permits.
    3. Whether BCS established a prior nonconforming use for thoroughfares/roadway subparcels (28A/28B, 29A/29B, 30A/30B, 31-33), given their potential abandonment as public roadways.
    4. Whether BCS established a prior nonconforming use for subparcels 17C/25C and 12B/25I, based on preparations for quarrying before the 1969 ordinance.

    Holding

    1. Yes, because the relatively narrow Indian Road did not negate the company’s long-standing intent to quarry both sides of the road.
    2. Remanded for factual determination, because the court needed to determine when BCS received legal title to the land.
    3. Remanded for factual determination, because the court needed to determine whether these thoroughfares were abandoned before the 1969 zoning ordinance.
    4. Yes, because BCS made its intent to quarry clear before 1969 by preparing the land and securing quarrying permits.

    Court’s Reasoning

    The Court relied on Syracuse Aggregate Corp. v. Weise, which recognized the unique nature of quarrying: “a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.” The Court found that BCS and its predecessors acquired the property exclusively for mining. The Court stated that for subparcel 5, the narrow roadway was not a physical separation and cited evidence of BCS’s intent to mine the area. As to subparcel 25D and the thoroughfares, issues of fact remained concerning when BCS obtained rights to the land and when the roadways were abandoned. For subparcels 17C/25C and 12B/25I, the court found that the actions of clearing the land and obtaining quarrying permits demonstrated an intent to quarry them in the future. The dissenting opinion argued that Indian Road separated parcel 5, making it ineligible for nonconforming use status and that a mining permit was required for parcel 25D to be lawfully mined.

  • Syracuse Aggregate Corp. v. Town of Camillus, 51 N.Y.2d 650 (1980): Extent of Nonconforming Use for Quarrying

    Syracuse Aggregate Corp. v. Town of Camillus, 51 N.Y.2d 650 (1980)

    When determining the extent of a prior nonconforming use for quarrying, courts consider whether the nature of the use and the landowner’s activities manifestly imply an appropriation of the entire parcel for such use prior to the restrictive ordinance’s adoption.

    Summary

    Syracuse Aggregate Corp. sought to annul a determination by the Town of Camillus Board of Zoning Appeals that revoked its excavation permit. The permit was for a 25-acre parcel previously used for quarrying since 1926. The town argued that a 1961 zoning ordinance limited the nonconforming use to the five acres actively excavated then. The Court of Appeals held that the prior nonconforming use extended to the entire 25-acre parcel because the prior owner’s activities demonstrated an intent to appropriate the entire parcel for quarrying, despite the limited excavation at the time of the ordinance.

    Facts

    Arthur Herring owned a 25-acre parcel in the Town of Camillus since 1926 and operated a quarrying business, extracting sand, gravel, and topsoil. He built haul roads throughout the parcel and a processing structure in the center. While concentrated on five acres, Herring extracted materials from various locations across the property based on customer demands. Syracuse Aggregate Corp. contracted to buy the property in 1977, contingent upon obtaining an excavation permit. After purchasing the property in 1978, the town revoked the permit based on a councilman’s appeal, arguing it expanded Herring’s nonconforming use.

    Procedural History

    The Town of Camillus Board of Zoning Appeals revoked Syracuse Aggregate Corp.’s excavation permit. Special Term dismissed Syracuse Aggregate’s Article 78 petition, holding the nonconforming use was limited to the five acres mined at the time of the 1961 ordinance. The Appellate Division reversed, finding Herring’s activities manifested an intent to appropriate the entire parcel for quarrying, and annulled the Board’s determination. The Town appealed to the New York Court of Appeals.

    Issue(s)

    Whether a prior nonconforming use involving the extraction of sand and gravel extends to the entire parcel of land or is limited to the portion actually excavated when the municipality adopted a zoning ordinance prohibiting expansion of the nonconforming use.

    Holding

    Yes, because the prior owner’s activities manifested an intent to appropriate the entire parcel for quarrying purposes before the restrictive ordinance was enacted.

    Court’s Reasoning

    The Court of Appeals stated that while zoning aims to eliminate nonconforming uses, it cannot prohibit an existing use at the time of the ordinance. To establish a nonconforming use right, the property must have been used for the nonconforming purpose, not merely contemplated for such use, when the ordinance took effect. The court acknowledged that “not every inch of the property need be embraced by the use in order to entitle the entire parcel to exemption from a restrictive ordinance.” The court adopted the prevailing test: “whether the nature of the incipient nonconforming use, in the light of the character and adaptability to such use of the entire parcel, manifestly implies an appropriation of the entirety to such use prior to the adoption of the restrictive ordinance.”

    The Court noted that quarrying is a unique land use, involving the sale of the land itself. The Court also quoted other jurisdictions noting that quarrying constitutes the use of land as a “diminishing asset.” The court reasoned that operators will not excavate the entire parcel at once due to economic necessities. Given the substantial quarrying activities over a long period, the service roads, and the processing structure, the court concluded that Herring manifested an intent to use the entire parcel for quarrying. The court emphasized that its holding did not grant Syracuse Aggregate carte blanche, as the town could still reasonably regulate the quarry’s operation or even eliminate the nonconforming use reasonably. However, the town could not arbitrarily deny a permit for the continued quarrying operation.