(specially concurring).
{35} I concur in the result of the majority’s opinion.
{36} This case is troublesome and has been very difficult to review. The manner in which both Romero and the County proceeded throughout the period in question leaves much to be desired. The facts in this case can be viewed differently. Under the standard of review, neither we nor the district court are to engage in fact finding. The review here is whether the Board’s decisions are supported by substantial evidence, whether they are arbitrary or capricious, and whether they are in accordance with law. The answers to these questions are not cut and dried. One can have a reasonable hesitation to withhold the usual deference given to the findings of a board of county commissioners in planning and zoning matters. Yet one can also have a reasonable hesitation to permit counties through planning and zoning ordinances to arbitrarily or otherwise improperly restrict use of private property. Here, a portion of the property was successfully used for mining sand and gravel, with a contiguous part of the acreage apparently intended and available for further sand and gravel mining.
{37} I am impressed by the fact that the earth and gravel removal business is a unique one, in that landowners must start in one place and continually expand to more land. Thus, “quarrying, as a non[-]conforming use, cannot be limited to land actually excavated at the time of enactment of the restrictive ordinance because to do so would, in effect, deprive the landowner of his use of the property as a quarry.” Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 434 N.Y.S.2d 150, 414 N.E.2d 651, 655 (1980). By its very nature, land intended for quarry development over time can, under certain circumstances, be a non-conforming use. Unless there exists a lawful basis on which to restrict the physical expansion or extension of the mining, the continuation of the mining should be considered a proper existing nonconforming use. The focus in this case is necessarily on the extent of the non-conforming use at the time of the enactment of the 2000 ordinances, and on the landowner’s manifestation of intent at that time to mine additional acreage. “[T]he nature of the incipient non[-]conforming use, in 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.” Id. 434 N.Y.S.2d 150, 414 N.E.2d at 654 (internal quotation marks and citation omitted).
{38} It appears to me that Romero did manifest some intent to expand, but after the Board first denied him any right to do so, he could not begin mining. I agree with the majority that Romero did enough from the Board’s first decision to the time of the enactment of the 2000 ordinances to come within the diminishing assets doctrine’s element of manifestation of intent. I also agree that the Board’s decision to the contrary was not based on substantial evidence and also evidenced a somewhat arbitrary result.
{39} I am convinced that the result reached by the majority is the fair and right result under the circumstances. I agree that we should adopt and apply the diminishing assets doctrine. I think the better judgment in this case is to err on the side of the landowner, as the majority has done, and leave the ultimate and perhaps only real issue of adverse neighborhood impact to be decided on remand, again as the majority has also done.