(dissenting). I agree with the conclusions of Special Term that petitioner has a nonconforming use as to parcels B and C. I conclude, however, that the nonconforming use should be continued in area B subject to reasonable regulations and that it was properly extinguished by ordinance in area C. (See Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; Town of Hempstead v. Goldblatt, 9 N Y 2d 101, affd. 369 U. S. 590.)
The record discloses that in 1925 petitioner acquired for quarrying purposes an 82-acre single parcel of land in the Town of G-ates, artificially divided by a railroad right of way, of which 35 acres were located north of the railroad and 47 acres (designated in this proceeding as parcels B and O) were located south of it. At that time the surrounding property was mainly farm land. In 1948 the town adopted a zoning ordinance which zoned area B Industrial E, in which quarrying was permitted, *344and zoned area C Residential. In 1950 it adopted an excavation ordinance obviously directed solely at petitioner, regulating the operation of stone quarries. It is undisputed that between 3925 and 1962 petitioner conducted substantial quarrying operations in the 35-acre area north of the railroad and that area was being exhausted so that it was becoming necessary to commence quarrying in parcel B, south of the railroad, and petitioner started to drill rock in such area in 1962. This caused the town to issue a stop-work order directing petitioner to cease any activity south of the tracks without first securing a permit. Petitioner’s application for such permit for areas B and C and for cancellation of the stop-work order was denied on February 1,1963. Sometime around the date of the application and denial, the town adopted a new zoning ordinance which according to the answer on or about January 25, 1963 rezoned area B as M2 Manufacturing, in which zone quarrying is not a permitted use. The zoning map, which is not part of the record and was not before the court, shows that in April, 1963 the zoning ordinance was again changed and made all area south of the railroad residential. It also appears that in 1930, within a few years after acquiring the 82-acre plot, petitioner began discussions with representatives of the railroad and with a public official regarding the possibility of constructing a tunnel under the railroad to obtain adequate access to that portion of the plot which lay south of the tracks. In 1949 it stripped some of the topsoil from that area and also constructed a berm along the south line of the 82-acre tract. The evidence establishes that petitioner did about $1,500,000 worth of business in 1962 and that it has over $2,300,000 invested in land, buildings, machinery, trucks, automobiles and mobile equipment.
I conclude that the operations carried on north of the tracks constituted an appropriation of the entire tract (including B and C) to quarrying use. As this court said in Matter of Fairmeadows Mobile Vil. v. Shaw (16 A D 2d 137, 142), in determining whether the inception of a nonconforming use on a limited part of a plot constitutes a pre-emption of the entirety of the plot for such use, “ The criterion is whether the nature of the incipient nonconforming use, in the light of the character and adaptability to such use of the entire parcel manifestly implies an appropriation of the entirety to such use prior to the adoption of the restrictive ordinance.” The nature of the activity in which petitioner is engaged is such that it cannot be carried on simultaneously at every point on the premises. However, its conduct, in carrying on substantial, and constantly progressing excavating activities in part of the tract, its longtime concern *345with the construction of a tunnel under the railroad tracks so as to make possible the removal of materials quarried south of the tracks to the processing and storage facilities located north of the tracks and its occasional engagement south of the tracks in works preliminary to actual quarrying manifest an appropriation of the entire 82-acre plot to the operation of quarrying. In Lamb v. A. D. McKee, Inc., 10 N. J. Mis. Rep. 649), where 1 acre of a 10-acre tract was being excavated for sand and gravel when zoning ordinance was enacted, it was hold that the nonconforming use extended to the whole 10-acre parcel as a unit. The Lamb case was recently approved in Moore v. Bridgewater Township (69 N. J. Super. 1); see, also, County of Du Page v. Elmhurst-Chicago Stone Co., 18 Ill. 2d 479; Hawkins v. Talbot (248 Minn. 549). In the case of a quarry, it is not essential that a nonconforming use exercised at the time a zoning ordinance is enacted should have embraced an entire tract, by excavation in every part of the tract, in order to entitle the owner to subsequently employ it all for the use. Some activity on only a part is sufficient to create a nonconforming use for the whole tract. (See Town of Somers v. Comarco, 308 N. Y. 537.) Accordingly, insofar as the 1963 ordinance excludes quarrying from uses permitted in areas B and C, petitioner has a prior nonconforming use.
In the absence of a provision in the zoning ordinance permitting such uses to continue, I conclude that the town may validly proscribe and terminate such nonconforming use in area 0 by zoning that area residential. Such zoning, which creates a buffer zone between the quarrying operation and an existing residential area and affects only a small portion of petitioner’s land, is a valid exercise of police power, depriving petitioner only of the value of the rock deposit in the land — a loss not sufficient to outweigh the public benefit which will result from the zoning. (New York Trap Rock Corp. v. Town of Clarkstown, 3 N Y 2d 844.) The same is not true with respect to the ordinance directed at area B. In view of the protection afforded by the buffer zone created by classifying area C as residential, and in view of petitioner’s sizable investment in equipment and land and the difficulty in relocating, “ the property interest affected by the particular ordinance is too substantial to justify its deprivation in light of the objectives to be achieved by enforcement of the provision.” (People v. Miller, 304 N. Y. 105, 108.)
I conclude that petitioner has a nonconforming use for quarrying in parcel B which is constitutionally protected and should be permitted to continue upon compliance with the requirements of the excavation ordinance but that it is not entitled to continue *346its nonconforming use in parcel G, which acts as' a buffer zone. Accordingly the order should be so modified.
Williams, . P. J., Bastow and Goldman, JJ., concur in Per Curiam opinion • Del Vecchio, J., dissents and votes to modify and to affirm, as modified, in opinion.
Order reversed, without costs of this appeal to either party and motion denied, without costs.