Majority
Cross appeals from an order of the Supreme Court (Devine, J.), entered August 5, 2013 in Schoharie County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents’ motion for partial summary judgment.
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, “Commercial [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, Local Law No. 2 (2005) of the Town of Schoharie (hereinafter Local Law No. 2), which, among other things, prohibited mining in agricultural zones, where petitioner’s property is located.
Petitioner then commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking, as is relevant here, a judgment declaring that it has a vested right to quarry as a preexisting nonconforming use under Local Law
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 Local Law No. 2 renders the instant appeal moot. Should a new zoning
1 After Supreme Court dismissed the vested right cause of action, it issued a judgment deciding some of the remaining causes of action and annulling Local Law No. 2. As a result, the 1975 zoning ordinance is currently in effect in the Town. Although petitioner applied for a special permit pursuant to this ordinance in April 2014, the Town swiftly enacted a moratorium on, among other things, special permits for mining that remains in effect.
2 Inasmuch as Supreme Court’s order granted respondents’ motion for partial summary judgment, they are not aggrieved and their cross appeal must be dismissed (see CPLR 5511; Matter of Covel v Town of Peru, 123 AD3d 1244 , 1246 n [2014]).
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 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.
Cases cited
- Cobleskill Stone Products, Inc. v. Town of Schoharie 112 AD3d 1024 p. 1094
- Cobleskill Stone Products, Inc. v. Town of Schoharie 95 AD3d 1636 p. 1094
- Buffalo Crushed Stone, Inc. v. Town of Cheektowaga 13 NY3d 88 at 101 p. 1095
- Jones v. Town of Carroll 15 NY3d 139 at 144 p. 1095
- Glacial Aggregates LLC v. Town of Yorkshire 14 NY3d 127 at 137-138 p. 1095
- Subdivisions, Inc. v. Town of Sullivan 75 AD3d 978 at 981 p. 1095
- City of Glens Falls v. Town of Queensbury 90 AD3d 1119 at 1120 p. 1096
- Faler v. Haines 104 AD3d 1120 at 1121 p. 1096
- Association for a Better Long Island, Inc. v. New York State Department of Environmental Conservation 97 AD3d 1085 at 1087 p. 1096
- Association for a Better Long Island, Inc. v. New York State Department of Environmental Conservation 23 NY3d 1 p. 1096
- Wal-Mart Stores, Inc. v. Campbell 238 AD2d 831 at 832-833 p. 1096
- Dun-Rite Towing, Inc. v. Village of Tarrytown 215 AD2d 654 at 654 p. 1096