(dissenting). While the effect of the court’s decision will not, of course, toll the death knell of zoning, it certainly ushers in a sad day for sound, wise and adequate municipal planning.
The record does not disclose the exact dimension of defendants ’ gravel pit on either the west or the east side of the road, but each one would seem to have comprised but a small portion *542of the total acreage.1 The mere intention to excavate the remainder of the land did not amount to an existing use so as to entitle defendants to a nonconforming use encompassing and protecting their entire tract of 55 acres. (See, e.g., Burlington v. Dunn, 318 Mass. 216, 223-224; cf. Matter of Cordes v. Moore, 308 N. Y. 761; Chayt v. Zoning Appeals Bd., 177 Md. 426.) To permit them to extend and enlarge the comparatively small area, in which they have already extracted gravel, to the whole tract would radically alter the residential character of the neighborhood and afford defendants a benefit far beyond that constitutionally required for the protection of their vested rights.
If the law were otherwise, if a single excavation in a given area of a large parcel of land were to create vested rights in the entire tract, a special privilege would be conferred upon sand and gravel operators, which is not recognized even in the case of substantial buildings and structures. Indeed, if the rationale of the court’s decision were sound, a dog kennel run, a mink farm or a piggery, existing on one acre of ground at the time of the passage of a zoning law prohibiting such use, could be extended without limit over the owner’s entire tract, no matter how large its acreage. Yet such an expansion of a nonconforming use would, I venture, never be sanctioned, any more than would be the extension or an enlargement of a nonconforming building which might have involved an original investment of hundreds of thousands of dollars. (Cf., e.g., Thayer v. Board of Appeals, 114 Conn. 15, 24; De Vito v. Pearsall, 115 N. J. L. 323, 325.) Sand and gravel pits should not be accorded a different, and preferred, treatment; as with other properties, the existing uses should be preserved, not extended. (See Matter of Cordes v. Moore, supra, 308 N. Y. 761; Chayt v. Zoning Appeals Bd., supra, 117 Md. 426.)
So much of the zoning ordinance as regulates the method of excavation and limits the area of such excavation to five acres *543is a reasonable exercise of the town’s powers under section 130 of the Town Law and violates no constitutional provision. I am, however,, inclined to agree — and, in view of the court’s conclusion, it is not necessary to do more than state — that the provisions of the ordinance requiring the removal of all structures at the end of each licensed period are unconstitutional insofar as defendants are concerned since it deprives them of their nonconforming use entirely.
Accordingly, I would modify the judgment of the Appellate Division by striking therefrom so much of it as declares unconstitutional that portion of the zoning ordinance which restricts the extent and method of excavation.
Fboessel, Van Voobhis and Burke, JJ., concur with Conway, Ch. J.; Fuld, J., dissents in an opinion in which Desmond and Dye, JJ., concur.
Judgment affirmed.
. I have a serious doubt whether defendants met the burden, imposed upon them (see Shepard v. Village of Skaneateles, 300 N. Y. 115, 118), of proving a prior nonconforming use as to the parcel on the east side of the road. It is my conclusion that there is no substantial proof in the record before us of any use prior to the enactment of the zoning ordinance here in question, but, in the view taken by the majority, little is to be gained by debating this issue and, accordingly, I refrain from discussing it further.