Dolomite Products Co. v. Kipers

Per Curiam.

Petitioner-respondent corporation was granted a declaration by Special Term that certain lands owned by it had acquired the status of a nonconforming use as respects rock quarrying purposes. Respondent corporation purchased the property during 1925. In these proceedings the land has been referred to as three parcels, designated A, B and C. Parcel A, which is located north of a railroad track which intersects the property, has been operated as a quarry since 1925. Various buildings were constructed and equipment installed and used in connection with the operation of parcel A. The development and use of the property as a quarry is a nonconforming use which *341was commenced, prior to the adoption of the town ordinance which prohibits the conduct of a quarrying operation in the area in which the property is located,'

The land in parcels B and C, south of the tracks, after acquisition by respondent was used as farm lands and for nursery purposes. Since 1925 residential subdivisions have developed in the area south of these parcels and at the date of the application for the permits thousands of homeowners had come into the area and now reside in the vicinity.

Application was made by the respondent for the issuance of excavating and blasting permits for its property, and the refusal of the town to issue the permits as to parcels B and C is the subject of this proceeding. Respondent urges that it has a legal right to the issuance of the permits because it had acquired a vested right to continue the operation of its quarry by reason of its prior nonconforming use.

The record indicates that the operations of respondent have clearly expanded since it acquired the property in question. Gross sales of stone taken from parcel A increased from $10,000 per year at the beginning of the business to approximately $1,500,000 in 1962. Respondent further offered proof that the buildings at the site, located on parcel A, have a book value of approximately $254,000; that it has machinery equipment of approximately $1,795,000 and mobile equipment of $105,000. Respondent urges that to deny the permits would result in serious financial loss. One of respondent’s principal officers testified that its present rate of production is approximately 4,000 tons per day and that at this rate it would have quarry able stone in parcel A, north of the tracks, which would keep it in production for a period of 7 to 8 years before being required to exploit the land south of the tracks. Respondent further presented proof that the only development of the area immediately south of the tracks in parcel B was the stripping of topsoil from a limited area south of the railroad right of way in 1949 and the making of some test drills in the stripped area in 1962. Respondent further constructed a berm about 12 or 15 feet high on parcel C as a barrier to protect the residences surrounding parcel C from the effects of the blasting done in the quarrying process.

The principal issue involved in this appeal is whether the nonconforming use made of parcel A can be extended to parcels B and C so as to give these parcels the same nonconforming character which parcel A enjoys. It is clear from the record that no quarrying operations have been carried on in parcels B and C since the acquisition of these properties 40 years ago. Involved in this determination is the balancing of the interests

*342between the economic loss which may be suffered by the respondent if the permits are denied and the protection of the homeowners in the residential areas immediately adjacent to the property in question. No direct proof has been offered by the respondent as to the financial loss it may suffer. The machinery and mobile equipment which can be moved or salvaged represent approximately 90% of the book value of respondent’s investment. No proof was offered as to the value of the land in parcels B and C which, from the exhibits, are apparently good residential building lots of substantial value which can be realized by respondent if its operations are limited to parcel A.

Respondent cites Town of Somers v. Camarco (308 N. Y. 537) in support of its position. The fact situation there is distinguishable from the case at bar but we believe that the principle asserted by the court at pages 540 to 541 supports the denial of respondent’s petition. The court said: “ The courts, in order to afford stability to property owners who do have existing nonconforming uses, have imposed the test of reasonableness upon such exercise of the police powers. Therefore broad general rules and tests, such as expressed in People v. Miller (304 N. Y. 105), must always be considered in this context. In addition, the extent of the reasonable exercise of the police powers varies directly with the degree of the density of the population in the city, town or village involved. * * * A definition of reasonableness can not be made for all occasions, and must, of necessity, be considered anew in the light of each problem presented. ’ ’

Respondent contends that the reason for purchasing parcels B and C was to work said parcels some time in the future as it is presently operating parcel A. It would be patently unfair to the homeowners who have built residences in the area to hold that the intention to quarry, not carried out over a 40-year period, is sufficient reason to enable respondent to tack on the nonconforming use of parcel A to parcels B and C. The test of the character of parcels B and C should be the use made of these parcels prior to the adoption of the zoning ordinance which now makes quarrying illegal without a permit. It is not consonant with progressive or contemporary planning to permit one to purchase a large parcel of real property, work 35 acres of it and do nothing for 40 years with the balance of 47 acres but, nevertheless, have the right some time in the distant future to make a nonconforming use of it in violation of an ordinance prohibiting it and to the great detriment of adjacent homeowners. Such a philosophy of planning could stunt or kill the growth of substantial areas of property surrounding the parcels in question, for abutting owners would be required to wait, as *343in the instant case, for decades to determine the use which could be made of the property. The principle to be applied to the issue before us is that enunciated in New York Trap Rock Corp. v. Town of Clarkstown (1 A D 2d 890). The fact situation in that case is quite analogous to the case at bar. Property had been purchased in 1927 and thereafter a comprehensive zoning ordinance was adopted by the town. At that time about 100 houses had been erected in the area. The parcel in question was suitable for residential purposes, as are the parcels B and C in the instant case. The court held (p. 891) that “ in view of the harm to the community inherent in the unlimited extension of such quarrying operations as respondent’s, the fact that parcel 17 is worth considerably more for quarrying than for residential purposes does not invalidate the ordinance ”. It is significant that no effort was made by respondent to prove that the parcels in question are more valuable for quarrying than they are for sale as residential lots.

There are residences as close as 110 feet to parcel O. A very large part of the area adjacent to parcel C has in recent years been substantially developed by homeowners. There is no doubt that the highest and best use of the surrounding property is for residential purposes. Upon the facts contained in this record, applying the doctrine of reasonableness, the refusal of the town to issue the excavation and blasting permits was a reasonable exercise of its police powers and should be upheld. The conclusion of the trial court that parcels B and C were in the category of a nonconforming use is contrary to the weight of the evidence.

The order should be reversed and the motion denied.