Court Holds Failure To Obtain Special Permit Did Not Preclude Establishment Of A Vested Right To Mine On Property

Petitioner Cobleskill Stone Product’s ("Petitioner") quarry in the Town of Schoharie ("Town") had been in operation since the 1890s. Under the Town’s 1975 zoning ordinance, “commercial excavation or mining” was a permitted use requiring a special permit from the Town. In 2000, Petitioner purchased real property to the south of the areas it actively mined, and commenced a hybrid CPLR Article 78 / declaratory judgment action for a judgment declaring Petitioner had a vested right to quarry as a preexisting nonconforming use under the ordinance and any subsequently enacted prohibitory zoning amendment. The Supreme Court granted petitioner's motion for partial summary judgment on this cause of action.

On appeal, the Appellate Division reasoned that even though a special permit was required for mining operations between 1975 and 2005, Petitioner's failure to obtain one did not per se preclude it from establishing a vested right to mine on its property, notwithstanding current or future prohibitive zoning ordinances. As such, the Court found the trial 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 under the 1975 ordinance. Finally, the court found the Supreme Court's judgment annulling Local Law No. 2 did not render the appeal moot; if a new zoning ordinance with the same prohibition against mining were to be enacted, a declaration that petitioner had a vested right as against the earlier law would affect the rights of the parties. Accordingly, the order of the Supreme Court was dismissed.

The case was Cobleskill Stone Products, Inc. v. Town of Schoharie, 126 A.D.3d 1094 (App. Div. 2015). The opinion can be found here:

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