Summary
holding restricting nonconforming use to the original quarry site the equivalent of denying the use of the property and thus improper
Summary of this case from Univ. Place v. McGuireOpinion
Argued October 13, 1980
Decided November 18, 1980
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JAMES P. O'DONNELL, J.
Bradley J. Carr for appellants. Sidney Devorsetz for respondent.
At issue on this appeal is whether a prior nonconforming use involving the extraction of sand, gravel and related materials from a parcel of land extends to the entire parcel or is limited to that portion of the parcel actually excavated at the time the municipality adopted a zoning ordinance prohibiting the expansion of the nonconforming use.
In this article 78 proceeding, petitioner seeks to annul a determination of the Board of Zoning Appeals of the Town of Camillus. The property in question is a 25-acre parcel of land located in the Town of Camillus. Petitioner, a domestic corporation engaged in the business of quarrying gravel, purchased the property on April 27, 1978 from Arthur Herring. Mr. Herring acquired the property in 1926 and from that date had engaged in the business of extracting various grades of sand, gravel, topsoil and fill from the parcel which he sold commercially. Over the years during which he conducted this business, Mr. Herring made various improvements to the land, including an interior network of haul roads extending across the length of the parcel, a structure located in the center of the property housing processing equipment for excavated materials and a storage shed for tools used in the mining operation. Although his principal activities were concentrated in a five-acre portion of the parcel where a clearly identifiable excavation developed, Mr. Herring occasionally would, depending on the demands of his customers, strip topsoil and extract various types and gradations of surface gravels from throughout the property.
Effective September 27, 1961, the property in question was zoned residential R-3. Section 26-15 of the new zoning ordinance provided in pertinent part:
"All building structures and uses not conforming to the regulations of the district in which they are located at the time of adoption of this Ordinance shall be known and regarded as `nonconforming'.
"A nonconforming * * * use may be continued subsequent to adoption of this Ordinance provided that * * * no such use shall be enlarged or increased to occupy a greater area of land than was occupied at the effective date of the adoption of this Ordinance."
Thereafter, the Town of Camillus adopted an ordinance requiring those engaging in the excavation of soil and earth to obtain a permit from the town building inspector.
In early 1977, petitioner contracted with Mr. Herring to purchase the property contingent upon petitioner's acquisition of an excavation permit. Petitioner then prepared and submitted to the town topographic maps and reclamation plans which called for excavation of approximately 20 acres of the parcel. On March 31, 1978, the town building inspector issued petitioner a one-year mining permit. Thereafter, petitioner purchased the property from Mr. Herring.
On April 5, 1978, a councilman for the Town of Camillus appealed the building inspector's issuance of the permit to the Board of Zoning Appeals of the Town of Camillus (hereinafter the "Board"). After a public hearing was held to consider the matter, the Board revoked petitioner's excavation permit, apparently finding that petitioner's proposed activities would constitute an improper expansion of Herring's prior nonconforming use. Petitioner then commenced the present article 78 proceeding seeking to annul the Board's determination.
At Special Term, petitioner contended that the Board had acted arbitrarily in revoking the excavation permit because petitioner had a right to engage in the planned excavation as the present owner of the prior nonconforming use established by Mr. Herring. Special Term rejected petitioner's contention and dismissed the petition, finding that only five acres of the 25-acre parcel actually had been mined by Herring at the time of the 1961 zoning ordinance and that the nonconforming use could not be extended beyond the five-acre portion so mined.
A unanimous Appellate Division reversed and annulled the Board's determination. The Appellate Division found that even though petitioner's predecessor in interest may not have excavated on every portion of the parcel, Mr. Herring's activities on the property prior to the 1961 zoning ordinance sufficiently manifested an intent to appropriate the entire parcel of land for purposes of excavation and quarrying. Accordingly, the Appellate Division concluded that petitioner was entitled to the benefit of Herring's nonconforming use which extended to the entire 25 acres of the parcel. We agree.
Before reaching the issue of the extent of the prior nonconforming use, we note that the Board failed to make any factual findings in support of its determination. Ordinarily, such a deficiency would require that the matter be remanded to the Board as proper judicial review of such determinations is impossible unless the zoning authority makes findings of fact and delineates those findings which provided the basis for its decision. (Matter of Community Synagogue v Bates, 1 N.Y.2d 445, 454-455; Matter of Collins v Behan, 285 N.Y. 187; cf. Matter of Elite Dairy Prods. v Ten Eyck, 271 N.Y. 488, 498.) However, because the record clearly indicates that the Board's action in revoking petitioner's excavation permit is contrary to law, we agree with the approach taken by the Appellate Division in not remanding the matter in order for the Board to go through the formality of making factual findings in support of a determination which cannot be sustained. (Cf. Matter of Von Kohorn v Morrell, 9 N.Y.2d 27, 34; Matter of New York City Housing Redevelopment Bd. v Foley, 23 A.D.2d 84, affd 16 N.Y.2d 1071; see, also, Elmira Soc. for Prevention of Cruelty to Animals v Town Bd. of Town of Big Flats, 58 A.D.2d 691.)
Our failure to remand in this case is not the result of a factual determination on our part. As the dissent properly notes, we have no power to find facts. Rather, our holding is premised upon our view that the record before the Board supports but one conclusion, to wit: petitioner's nonconforming use extends throughout the parcel. Hence, under these circumstances, a remand to the Board is unnecessary.
The parties do not dispute that Mr. Herring acquired a nonconforming use at the time of the enactment of the 1961 zoning ordinance or that petitioner, as the present owner of the property, is entitled to protection in its continued enjoyment of that use. (Town of Somers v Camarco, 308 N.Y. 537; People v Miller, 304 N.Y. 105.) Rather, the sole point of contention between the parties relates to the extent of the nonconforming use to which petitioner is entitled.
While the precise question presented on this appeal has not heretofore been considered by this court, the rules relating to nonconforming uses are well settled. Although the overriding policy of zoning is aimed at the ultimate elimination of nonconforming uses (Matter of Harbison v City of Buffalo, 4 N.Y.2d 553, 559-560), nevertheless, a zoning ordinance cannot prohibit an existing use to which the property has been devoted at the time of the enactment of the ordinance. (Ilasi v City of Long Beach, 38 N.Y.2d 383, 387; Lutheran Church in Amer. v City of New York, 35 N.Y.2d 121, 129.) However, to establish a right to a nonconforming use, the person claiming the right must demonstrate that the property was indeed used for the nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective. (See Matter of Harbison v City of Buffalo, 4 N.Y.2d 553, supra; People v Miller, 304 N.Y. 105, supra; see, generally, 3 Rathkopf, Law of Zoning and Planning, p 58-3.) Moreover, although 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, by the same token use of a limited portion of the premises will not necessarily serve to pre-empt the entire parcel as against a later prohibitory zoning ordinance. (See, e.g., Matter of Dolomite Prods. Co. v Kipers, 23 A.D.2d 339, affd 19 N.Y.2d 739; see, generally, 82 Am Jur 2d, Zoning and Planning, § 197.)
The test most often employed in determining the extent of a nonconforming use 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." (Matter of Fairmeadows Mobile Vil. v Shaw, 16 A.D.2d 137, 142, quoting Gross v Allan, 37 N.J. Super. 262, 272.) Application of this standard necessarily entails an examination of the nature of the particular nonconforming use in issue as well as the activities engaged in by the landowner in effectuating that use prior to the adoption of the restrictive ordinance.
By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it (see, e.g., Matter of Off Shore Rest. Corp. v Linden, 30 N.Y.2d 160; Matter of Harbison v City of Buffalo, 4 N.Y.2d 553, supra; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 A.D.2d 228), quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus, as a matter of practicality as well as economic necessity, 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.
It is because of the unique realities of gravel mining that most courts which have addressed the particular issue involved herein have recognized that quarrying constitutes the use of land as a "diminishing asset". (See, e.g., County of Du Page v Elmhurst-Chicago Stone Co., 18 Ill.2d 479.) Consequently, these courts have been nearly unanimous in holding that quarrying, as a nonconforming use, cannot be limited to the land actually excavated at the time of enactment of the restrictive ordinance because to do so would, in effect, deprive the landowner of his use of the property as a quarry. (McCaslin v City of Monterey Park, 163 Cal.App.2d 339; County of Du Page v Elmhurst-Chicago Stone Co., 18 Ill.2d 479, supra; Hawkins v Talbot, 248 Minn. 549; Moore v Bridgewater Twp., 69 N.J. Super. 1; Borough of Cheswick v Bechman, 352 Pa. 79; but see Town of Wayland v Lee, 325 Mass. 637 .)
In this case, quarrying has been conducted on the property since 1926. From that time, materials have been removed from various portions throughout the parcel. For example, fine gravel was taken from the northern section while coarse and medium size gravel was mined from the southern areas. As mentioned earlier, service roads were placed throughout the parcel and a processing structure was erected strategically in the center of the property. In fact, no part of the land was ever dedicated to a use other than the quarrying of sand and gravel. Given such outward manifestations of intent and in light of the unique character of the business engaged in, it can only be concluded that the nonconforming use extends throughout the property even though the principal excavation was limited to a five-acre portion of the parcel.
This is not to say that a landowner, merely by preparing to engage in a gravel operation and undertaking a few self-serving acts of a very limited nature, will have thrown a protective mantle of nonconforming use over his entire parcel of land as against a later prohibitory zoning ordinance. Nor is it possible to extend the protection of a permitted nonconforming use established on one parcel of land to physically separate though adjoining parcels. (Matter of Dolomite Prods. Co. v Kipers, 23 A.D.2d 339, affd 19 N.Y.2d 739, supra; New York Trap Rock Corp. v Town of Clarkstown, 1 A.D.2d 890, affd 3 N.Y.2d 844.) But where, as here, the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of 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.
In conclusion, our holding in no sense affords petitioner a carte blanche to engage in its mining operation. To the contrary, the town can adopt measures reasonably regulating the manner in which petitioner uses its quarry (Town of Hempstead v Goldblatt, 9 N.Y.2d 101, affd 369 U.S. 590) and may even eliminate this nonconforming use provided that termination is accomplished in a reasonable fashion (see Modjeska Sign Studios v Berle, 43 N.Y.2d 468; Matter of Harbison v City of Buffalo, 4 N.Y.2d 553, 562-563, supra). The town, however, may not prevent petitioner from doing that which it has a legal right to do by arbitrarily denying petitioner a permit to continue to use the land in conjunction with the previously engaged in quarrying operation. (Town of Somers v Camarco, 308 N.Y. 537, 541, supra.)
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Although I agree that generally the scope of a nonconforming use of property for soil mining is not limited solely by the extent of actual excavation at the time the zoning ordinance was adopted, I would remit the matter to Supreme Court for remand to the Board of Zoning Appeals — a course which the majority concedes is ordinarily proper.
There is no question that Mr. Herring engaged in soil mining or quarrying prior to adoption of the restrictive ordinance and thus was entitled to continue his operations as a nonconforming use. The only disputed issue is the extent of that nonconforming use.
I agree with the majority that given the peculiar nature of soil mining, it is unrealistic and unreasonable to define the extent of such a nonconforming use by the extent of actual excavations existing when the ordinance was adopted. This is so because soil mining or quarrying manifestly contemplates gradual excavation along both vertical and horizontal lines as demand dictates. To recognize the unique quality of this form of land use, however, does not resolve the factual question concerning the extent to which a particular parcel has been dedicated to such use. Just as excavation of only a portion of the property does not define the extent of the nonconforming use, use of a limited portion generally should not and does not render the entire parcel nonconforming (see Matter of Dolomite Prods. Co. v Kippers, 23 A.D.2d 339, affd 19 N.Y.2d 739).
It is because resolution of this case turns on the facts that I am compelled to dissent from the majority's action. Here, the Board of Zoning Appeals failed to make factual findings and at least some members employed an improper standard in reaching a decision. Without fact findings by the board and a coherent basis for its determination, this court cannot properly review the board's action (see Matter of Community Synagogue v Bates, 1 N.Y.2d 445). The only proper course in such a case is to remit to Supreme Court with directions to remand the matter to the board for that body to make factual findings and conclusions consistent with the proper standards (see id.; Matter of Mott v Duncan Petroleum Trans., 51 N.Y.2d 289, [decided herewith]).
Contrary to the majority, I cannot view such a remand as a mere "formality". The board is free to accept or reject testimony in resolving relevant fact questions and may draw inferences from those facts in determining Mr. Herring's intention and the extent to which he effectuated that intention. This court does not enjoy the same fact-finding power. Notwithstanding its limited review function, this court has made a factual determination that the entire 25-acre parcel may be mined as a nonconforming use. It is this unjustifiable invasion of the board's function that is objectionable and in which I cannot concur.
Judges JONES, WACHTLER, FUCHSBERG and MEYER concur with Judge JASEN; Chief Judge COOKE dissents and votes to reverse in a separate opinion in which Judge GABRIELLI concurs.
Order affirmed.