Matter of Cobleskill Stone Products, Inc. v. Town of SchoharieMatter of Cobleskill Stone Products, Inc. v. Town of Schoharie
As more fully set forth in our prior decisions in this matter (112 AD3d 1024 [2013]; 95 AD3d 1636 [2012]), petitioner operates a quarry in the Town of Schoharie, Schoharie County, which has been in operation since the 1890s. Pursuant to respondent Town of Schoharie‘s 1975 zoning ordinance, “[c]ommercial [e]xcavation or [m]ining” was a permitted use upon receipt of a special permit from the Town. In 2000, while this ordinance was in effect, petitioner purchased an additional parcel of real property to the south of the areas that it actively mined. Petitioner did not apply for a special permit, but sought to amend its Department of Environmental Conservation mining permit to include the new parcel and other adjacent property that it owned which, at that time, was unmined and unpermitted. During the pendency of that application, the Town adopted a new zoning ordinance,
Petitioner then commenced this combined
We reverse. The Court of Appeals has repeatedly rejected the notion that “permits are a prerequisite to establishing prior nonconforming use rights” (Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88, 101 [2009]; see Jones v Town of Carroll, 15 NY3d 139, 144 [2010]; Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127, 137-138 [2010]; see also Subdivisions, Inc. v Town of Sullivan, 75 AD3d 978, 981 [2010]). Thus, although a special permit was required for mining operations between 1975 and 2005, petitioner‘s failure to obtain one does 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 (see id.). Accordingly, 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.
Further, we do not find that Supreme Court‘s subsequent judgment partially granting the petition and annulling
Finally, respondents argue that they are nevertheless entitled to partial summary judgment on the additional and alternative ground that the Town would have had a rational basis to deny any special permit under its 1975 zoning ordinance. While respondents request that we remit the matter to Supreme Court to address this alternative argument in the first instance, we decline to do so and instead reach such argument in the interest of judicial economy (see Faler v Haines, 104 AD3d 1120, 1121 [2013]). Notably, the record contains no application for such a permit and, thus, there is no evidence regarding the purported basis upon which the Town could deny such application. Accordingly, respondents’ claim in this regard is entirely speculative and nonjusticiable (see Matter of Association for a Better Long Is., Inc. v New York State Dept. of Envtl. Conservation, 97 AD3d 1085, 1087 [2012], mod on other grounds 23 NY3d 1 [2014]; see generally Matter of Wal-Mart Stores v Campbell, 238 AD2d 831, 832-833 [1997]; Matter of Dun-Rite Towing v Village of Tarrytown, 215 AD2d 654, 654 [1995]). The parties’ remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
McCarthy, Garry and Rose, JJ., concur. Ordered that the cross appeal is dismissed, without costs. Ordered that the order is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court‘s decision.