Agenda - Planning Commission - 09/01/1998

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Z.B. August 25, 1998--Page 3 property. It was irrelevant whether Reese's right to use the property as a noncon- forming industrial use lapsed; Reese was bound by the ordinance that prohib- ited changing between nonconforming uses. The prohibition applied to Reese's property because it prohibited only changes to legal nonconforming uses -- it didn't affect the validity of already existing nonconforming uses. If the court accepted Reese's argument, the city could never control the use of property within its limit. Different ordinances would apply to different properties, and one owner could switch from one nonconforming use to another while an ·-'adjacent owner couldn't practice even one nonconforming use. That the ordinance prevented Reese from changing the nonconforming use of his property didn't mean the city ."took" his property. 'An amortization occurred when an -ordinance established a schedule for terminating existing property rights, while the city's zoning amendment allowed nonconforming uses to continue indefinitely. Reese had the right to use his property for a die-casting business but not for an auto shop, so the ordinance didn't affect his property rights. see also: Huffy. Board of Adjustment of the City of Independence, 695 S. W.2d 166 (1985). see also: Hoffmann v. Kinealy, 389 S.W. 2d 745 (1965).. Mining -- Does failure to maintain state mining permit discontinue nonconforming use? Citation: Stephentown Concerned Citizens v. Herrick, Supreme Court of New York, Appellate Div., 3rd Dept., No. 81614 (1998) In 1972, Troy Sand & Gravel Company Inc. leased a gravel pit/mine in Stephentown, N.Y. It got a one-year mining permit from the state Department of Environmental Conservation (DEC). In 1991, the town rezoned Boyle's property to residential. The law allowed certain activities, including mining, to continue as nonconforming uses so long as they weren't discontinued for more than one year. Troy Sand continued to mine gravel as a nonconforming use. In March 1993, the DEC warned Troy Sand that its current permit would soon expire, but Troy Sand didn't apply for a new permit until three weeks after its permit expired. Even though Troy Sand's permit application .was incomplete and late, the DEC said it could continue mining under the old permit. Stephentown Concerned Citizens, a group of property owners, sued Troy Sand. It said the mine was illeghl because Troy Sand had no permit and asked the court to shut down the mine. The court found the DEC improperly allowed Troy Sand to continue mining and ordered Troy Sand to shut down the mine until the DEC issued a valid permit. The court's order was stayed pending an appeal, but the appeals court eventually affirmed the court's decision.