In a recent decision, Matter of Red Wing Properties, Inc. v. Town of Rhinebeck, et al., the Second Department held that a landowner’s intent to continue using its property for mining operations established a valid pre-existing nonconforming use.
Red Wing Properties, Inc. (“Petitioner”) owns roughly 241 acres of property located with the Town of Rhinebeck (the “Town”). For several years, Petitioner used its property for sand and gravel mining. However, at the time of this lawsuit, the majority of the property remained unmined.
A 2005 permit issued by the New York State Department of Environmental Conservation (“DEC”) allowed Petitioner to mine only 37.5 acres of its property. In 2008, Petitioner sought to increase that allowance to 141 acres. The DEC required that Petitioner conduct a number of studies to determine the impact of the proposed mining on the surrounding environment. In particular, the DEC was concerned about an endangered turtle species in the area, and required a study with respect to that. That study alone took six years and cost Petitioner over $125,000. In 2010, due to the various environmental concerns and Petitioner’s desire to expedite the process, Petitioner reduced its proposed mining area to 124 acres. In 2015, it further reduced its proposal to 94 acres.
Shortly after Petitioner’s latest reduced proposal, and while its “application to the DEC was still pending, the Town enacted a new zoning law that allowed mining on only those lands in the Town upon which there were existing, DEC-permitted mining operations.” Thereafter, Petitioner sought a determination from the Town that it had a vested right to mine all of its property as a prior nonconforming use. The Town’s Zoning Enforcement Officer (the “ZEO”) denied Petitioner’s application for such determination, and the Town’s Zoning Board of Appeals (the “ZBA”) confirmed the ZEO’s decision.
Petitioner then brought a hybrid proceeding under Article 78 of the CPLR seeking reversal of the ZBA’s determination, and a declaration that it had a vested right to mine the entirety of its property as a prior nonconforming use. The Supreme Court dismissed that proceeding and Petitioner appealed.
The Second Department effectively reversed. A nonconforming use is a use that is “‘in existence when a zoning ordinance is enacted, [and is], as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance’ (Glacial Aggregates LLC v Town of Yorkshire, 14 NY3d 127, 135 quoting People v Miller, 304 NY 105, 107).” Often, property owners whose land is permitted for mining or other quarrying will not excavate the entirety of the land at once, but will rather excavate one area at a time, leaving the remaining resources in the land until they become needed. Where an property owner does this “‘over a long period of time and . . . clearly manifest[s] an intent to appropriate the entire parcel [for] quarrying, the extent of [the] protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property’ (Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d [278,] 286).”
The Second Department held that Petitioner manifested an intent to mine more of its property as early as 2008, when it submitted its initial application to the DEC. In the years thereafter, it amended its application to ultimately reduce the proposed mining area to 94 acres. Based on that most recent amendment, made prior to the enactment of the new law, the Second Department found that Petitioner had a vested right to mine up to 94 acres of its property, protected as a prior nonconforming use. Petitioner was entitled to a declaration to that effect, and the Supreme Court should have annulled the determinations of the ZBA and ZEO that found otherwise.