New York Zoning and Municipal Law Blog
The Court of Appeals ruled today that owners of a landfill had a vested right to use all 50 acres of their property as a landfill, even though they had only used 3 acres before more restrictive zoning was implemented. In Matter of Jones v Town of Carroll the court found that landfill operations were similar to mining operations and therefore the Court’s recent holding in Glacial Aggregates LLC v. Town of Yorkshire, in which the Court concluded that for mining operations the expense of the permitting process, coupled with taking forty truck loads of material for testing, removal of timber and surveying a road and mining areas was sufficient to establish a vested right to the use and manifest an intent to mine the area, was applicable to this case and warranted a finding of vested rights (see our 2/18/10 Blog on the Glacial Aggregates case).
Originally the Plaintiffs had received a variance to operate a landfill from the Town as long as they obtained permits from the DEC to operate the landfill. Plaintiffs later received a permit from the DEC to operate a landfill on only 3 of the 50 acres. In 2005 the Town changed the zoning and prohibited the expansion of any landfill. Plaintiffs challenged the law and won in the Supreme Court. The Appellate Division reversed finding that, since a condition of the variance was obtaining DEC permits and the permit was limited to 3 acres, there was no vested right to use the remaining 47 acres as a landfill, as such use was merely contemplated.
The Court of Appeals reversed finding that the owner had a vested right to use the entire 50 acres as a landfill. The Court held: “the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time. Additionally, the owner of landfill property can reasonably be expected to hold a portion of the land in reserve for future expansion of that activity, just as a quarry operator may find necessary. The fact that the DEC permit covered only a limited area is not determinative of plaintiffs’ rights over the remaining 47 acres of the parcel (see Buffalo Crushed Stone, 13 NY3d at 101-102). Instead, the factors to examine are whether the operation of a C & D landfill was a lawful use on the property prior to the enactment of the 2005 zoning law and whether plaintiffs’ activities before that time manifested an intent to utilize all of their property in a manner consistent with that purpose.”
In finding that the use was legal when established and that the owner had manifested the requisite intent to utilize the entire property the Court stated:
“In 1989, the Town had acknowledged that there was no other reasonable use for the property and granted plaintiffs a variance that covered all 50 acres. This not only established that the landfill was a lawful use, it also gave plaintiffs a measure of security that they would be able to use additional acreage for the landfill operation as the need arose so long as DEC continued to issue the appropriate permits for expanded operations. The evidence also shows that plaintiffs manifested an intent before 2005 to devote the 50-acre parcel to use as a landfill since they dedicated substantial areas around the actual landfill site for related purposes, purchased necessary heavy equipment (such as a bulldozer, a backhoe, an excavator, a loader and a dump truck), employed a dozen people, developed plans for multi-stage enlargement of the landfill and engaged in discussions with investors regarding future operations. On these facts, plaintiffs adequately demonstrated that they acquired a vested right to operate a C & D landfill on their entire parcel, subject to regulation by DEC, and that the 2005 local law could not extinguish their legal use of the land for that purpose.[”
This decision, while placing emphasis again on the uniqueness of the use, would appear to open the door, once again, to further interpretation of the law regarding vested rights.
-Steven Silverberg