Agenda - Planning Commission - 03/05/2009

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,.--...., , -- ) , Zoning' Bulletin February 10, 20091 Volume 31 No.3 to remove a total of 400.tons of material for testing; removed lumber throughout the property; surveyed and staked out the locations of the mining areas and the haul road; drilled many test holes; designed and obtained steel for a required bridge; dug monitored watertable wells; and filed periodic reports with the DEC. Glacial asserted that these activi- ties on the site prior to the town's adoption of the Ordinance constituted rninillg. As such; it argued that it should be allowed to continue to mine the property as a nonconforming use without need of a special permit. Glacial also contended that the substantial changes it made to the prop- erty and the substantial expenses it incurred in developing the property gave it a vested right to mine the property. Following.a jury trial, judgment was entered in Glacial's favor. The town appealed. It argued that the trial court should have entered a directed verdict (i.e., ruling made by the judge overseeing the jury trial) declaring that: (1) the mining of sand ,and gravel aggregate on Glacial's property was not a lawful nonconforming use; and (2) Glacial had not acquired a vested right to mine its property. . DECISION: Re~ersed. On appeal, the court held that Glacial did not have a right to mine its property as a nonconforming use. The court determined that the activi- ties undertaken by Glacial prior to the town's adoption of the Ordinance did not constitute actual mining of sand and gravel aggregate. Rather, it concluded those activities ":were performed merely in contemplation of mining," which was not enough to establish a right to a nonconforming J,lse. In support of its conclusion, the court noted that Glacial:s general manager had acknowledged that Glacial "did not COi:nmercially mine the property" prior to adoption of the Ordinance, Commercial mining was not even allowed under the DEC permit until a bridge and haul road' were constructed, and neither of those conditions had been satisfied. The court also held that Glacial did not have a vested right to mine its property. The court explained that under New York law, a vested right could be acquired when the landowner: (1) acts in reliance on a lawful permit; (2) makes substantial expenditures on 'construction; and (3) com- mences substantial construction. In other words, the landowner's actions in reliance on the permit must be so substantial that a town's prohibition of that use would "resultO in serious loss rendering the improvements essentially valueless." Here the court concluded that expenditures made by Glacial were neither substantial nor incurred in reliance on the DEC permit. Of the $800,000 spent on Glacial's "project," $750,000 was not incurred in reliance on the permit but was spent on acquiring the land and in obtaining the permit. The court also concluded that the construc- tion undertaken by Glacial on the property was not substantial. Pursu- ant to the permit, in order to commence commercial mining, Glacial was requir~d to build and pave a road and install a bridge-neither of which had been performed. @ 2009 Thomson Reuters 5 95