23 A.D.2d 339 | N.Y. App. Div. | 1965
Lead Opinion
Petitioner-respondent corporation was granted a declaration by Special Term that certain lands owned by it had acquired the status of a nonconforming use as respects rock quarrying purposes. Respondent corporation purchased the property during 1925. In these proceedings the land has been referred to as three parcels, designated A, B and C. Parcel A, which is located north of a railroad track which intersects the property, has been operated as a quarry since 1925. Various buildings were constructed and equipment installed and used in connection with the operation of parcel A. The development and use of the property as a quarry is a nonconforming use which
The land in parcels B and C, south of the tracks, after acquisition by respondent was used as farm lands and for nursery purposes. Since 1925 residential subdivisions have developed in the area south of these parcels and at the date of the application for the permits thousands of homeowners had come into the area and now reside in the vicinity.
Application was made by the respondent for the issuance of excavating and blasting permits for its property, and the refusal of the town to issue the permits as to parcels B and C is the subject of this proceeding. Respondent urges that it has a legal right to the issuance of the permits because it had acquired a vested right to continue the operation of its quarry by reason of its prior nonconforming use.
The record indicates that the operations of respondent have clearly expanded since it acquired the property in question. Gross sales of stone taken from parcel A increased from $10,000 per year at the beginning of the business to approximately $1,500,000 in 1962. Respondent further offered proof that the buildings at the site, located on parcel A, have a book value of approximately $254,000; that it has machinery equipment of approximately $1,795,000 and mobile equipment of $105,000. Respondent urges that to deny the permits would result in serious financial loss. One of respondent’s principal officers testified that its present rate of production is approximately 4,000 tons per day and that at this rate it would have quarry able stone in parcel A, north of the tracks, which would keep it in production for a period of 7 to 8 years before being required to exploit the land south of the tracks. Respondent further presented proof that the only development of the area immediately south of the tracks in parcel B was the stripping of topsoil from a limited area south of the railroad right of way in 1949 and the making of some test drills in the stripped area in 1962. Respondent further constructed a berm about 12 or 15 feet high on parcel C as a barrier to protect the residences surrounding parcel C from the effects of the blasting done in the quarrying process.
The principal issue involved in this appeal is whether the nonconforming use made of parcel A can be extended to parcels B and C so as to give these parcels the same nonconforming character which parcel A enjoys. It is clear from the record that no quarrying operations have been carried on in parcels B and C since the acquisition of these properties 40 years ago. Involved in this determination is the balancing of the interests
Respondent cites Town of Somers v. Camarco (308 N. Y. 537) in support of its position. The fact situation there is distinguishable from the case at bar but we believe that the principle asserted by the court at pages 540 to 541 supports the denial of respondent’s petition. The court said: “ The courts, in order to afford stability to property owners who do have existing nonconforming uses, have imposed the test of reasonableness upon such exercise of the police powers. Therefore broad general rules and tests, such as expressed in People v. Miller (304 N. Y. 105), must always be considered in this context. In addition, the extent of the reasonable exercise of the police powers varies directly with the degree of the density of the population in the city, town or village involved. * * * A definition of reasonableness can not be made for all occasions, and must, of necessity, be considered anew in the light of each problem presented. ’ ’
Respondent contends that the reason for purchasing parcels B and C was to work said parcels some time in the future as it is presently operating parcel A. It would be patently unfair to the homeowners who have built residences in the area to hold that the intention to quarry, not carried out over a 40-year period, is sufficient reason to enable respondent to tack on the nonconforming use of parcel A to parcels B and C. The test of the character of parcels B and C should be the use made of these parcels prior to the adoption of the zoning ordinance which now makes quarrying illegal without a permit. It is not consonant with progressive or contemporary planning to permit one to purchase a large parcel of real property, work 35 acres of it and do nothing for 40 years with the balance of 47 acres but, nevertheless, have the right some time in the distant future to make a nonconforming use of it in violation of an ordinance prohibiting it and to the great detriment of adjacent homeowners. Such a philosophy of planning could stunt or kill the growth of substantial areas of property surrounding the parcels in question, for abutting owners would be required to wait, as
There are residences as close as 110 feet to parcel O. A very large part of the area adjacent to parcel C has in recent years been substantially developed by homeowners. There is no doubt that the highest and best use of the surrounding property is for residential purposes. Upon the facts contained in this record, applying the doctrine of reasonableness, the refusal of the town to issue the excavation and blasting permits was a reasonable exercise of its police powers and should be upheld. The conclusion of the trial court that parcels B and C were in the category of a nonconforming use is contrary to the weight of the evidence.
The order should be reversed and the motion denied.
Dissenting Opinion
(dissenting). I agree with the conclusions of Special Term that petitioner has a nonconforming use as to parcels B and C. I conclude, however, that the nonconforming use should be continued in area B subject to reasonable regulations and that it was properly extinguished by ordinance in area C. (See Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; Town of Hempstead v. Goldblatt, 9 N Y 2d 101, affd. 369 U. S. 590.)
The record discloses that in 1925 petitioner acquired for quarrying purposes an 82-acre single parcel of land in the Town of G-ates, artificially divided by a railroad right of way, of which 35 acres were located north of the railroad and 47 acres (designated in this proceeding as parcels B and O) were located south of it. At that time the surrounding property was mainly farm land. In 1948 the town adopted a zoning ordinance which zoned area B Industrial E, in which quarrying was permitted,
I conclude that the operations carried on north of the tracks constituted an appropriation of the entire tract (including B and C) to quarrying use. As this court said in Matter of Fairmeadows Mobile Vil. v. Shaw (16 A D 2d 137, 142), in determining whether the inception of a nonconforming use on a limited part of a plot constitutes a pre-emption of the entirety of the plot for such use, “ The criterion is 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 nature of the activity in which petitioner is engaged is such that it cannot be carried on simultaneously at every point on the premises. However, its conduct, in carrying on substantial, and constantly progressing excavating activities in part of the tract, its longtime concern
In the absence of a provision in the zoning ordinance permitting such uses to continue, I conclude that the town may validly proscribe and terminate such nonconforming use in area 0 by zoning that area residential. Such zoning, which creates a buffer zone between the quarrying operation and an existing residential area and affects only a small portion of petitioner’s land, is a valid exercise of police power, depriving petitioner only of the value of the rock deposit in the land — a loss not sufficient to outweigh the public benefit which will result from the zoning. (New York Trap Rock Corp. v. Town of Clarkstown, 3 N Y 2d 844.) The same is not true with respect to the ordinance directed at area B. In view of the protection afforded by the buffer zone created by classifying area C as residential, and in view of petitioner’s sizable investment in equipment and land and the difficulty in relocating, “ the property interest affected by the particular ordinance is too substantial to justify its deprivation in light of the objectives to be achieved by enforcement of the provision.” (People v. Miller, 304 N. Y. 105, 108.)
I conclude that petitioner has a nonconforming use for quarrying in parcel B which is constitutionally protected and should be permitted to continue upon compliance with the requirements of the excavation ordinance but that it is not entitled to continue
Williams, . P. J., Bastow and Goldman, JJ., concur in Per Curiam opinion • Del Vecchio, J., dissents and votes to modify and to affirm, as modified, in opinion.
Order reversed, without costs of this appeal to either party and motion denied, without costs.