In a Fourth Department case we think is worthy of noting, but missed earlier, the Plaintiff claimed that the operation of a sand and gravel mining operation on its 216 acre property was a legal non-conforming use to which it had a vest right. The Appellate Division, in Matter of Glacial Aggregates LLC v. Town of Yorkshire, reversed the judgment after a jury trial finding the Supreme Court should have granted a directed verdict at the close of the plaintiff’s case.
The court noted that prior to adoption of its zoning ordinance the Town prohibited mining, absent a special permit. The plaintiff had obtained a mining permit from the DEC, hauled out 40 truck loads of material for testing, cleared the property of trees and performed a number of other activities.
However, the court found these activities did not constitute actual mining but rather the “activities were performed merely in contemplation of mining.” Further, testimony at trial demonstrated that mining could not take place until certain additional work, including paving of a “haul road” were completed. As there was no proof that the property was actually being used for commercial mining, the court found the lower court erred in not issuing a directed verdict that the mining operation was not a legal non-conforming use.
The court also noted that a directed verdict should have issued finding that the plaintiff did not have a vested right in the mining operation. "In New York, a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development" (Town of Orangetown v Magee, 88 NY2d 41, 47 ; see Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 ).”
Here the testimony was that a total of $800,000 was spent on the project but that $750,000 of that was to acquire the land and obtain the DEC permit. Therefore, the court found that there was not a substantial expenditure in reliance on the permit. Further, since the paving of the road and construction of a bridge necessary to conduct mining operations had not taken place, plaintiff also failed to prove that it had “effected substantial changes…to further development pursuant to a legally issued permit.”
Absent from the analysis is whether the mining permit from the DEC was the same as the "special permit" required by the town and therefore would have been sufficient to create a legal non-conformity, if the other tests of substantial expenditure and substantial change had been met.