DIRT Development for Tuesday, February 3, 2009 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Husch Blackwell Sanders Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; PRE-EXISTING NONCONFORMING USE; QUARRYING: A landowner is not entitled to conduct quarrying activities on parcels of land not zoned for such activities merely because the parcels are contiguous to other parcels of land also owned by the landowner and on which quarrying had occurred over a long period of time. Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 864 N.Y.S.2d 598 (A.D. 4 Dept. 2008). Plaintiff owns approximately 230 acres of real property within the Town of Cheektowaga and it operates a hard rock quarry upon approximately half of its land. Certain parcels on the other half of Plaintiff's land are in dispute in this case. Defendant enacted a zoning ordinance that created a special "Aggregate District" ("AG") in which quarrying was allowed. Plaintiff owned several parcels of land that were not within the boundaries of this district, but were contiguous to parcels of Plaintiff's land that were within the AG and on which quarrying activities had been undertaken for many years, both before and after the AG was created. Plaintiff moved for a declaration "that all quarrying operations conducted anywhere within the boundaries of [its property]" are entitled to prior nonconforming use status" under the defendant's zoning ordinance. Plaintiff presented evidence that showed, in part, that (i) in the past Plaintiff had attempted to relocate a road to the southern boundary of his its property, demonstrating that it had intended to use such property for quarrying, (ii) there was also 6,000 feet of 16-inch pipe running along a road to a pumping station off Plaintiff's property and such pipe was evidence of infrastructure devoted to mining, and (iii) Plaintiff applied for and was issued mining permits in 1955 and 1960, long before the changes in zoning. The Court rejected the Plaintiff's arguments and held that because Plaintiff failed to establish that it had conducted any "substantial quarrying activities" on the parcels in question that "clearly manifest an intent to appropriate [such parcels] to the particular business of quarrying," plaintiff is not entitled to extend the protection of a permitted nonconforming use for those parcels. The issuance of mining permits, without any other activities undertaken in furtherance of mining, the Court held, are precisely the type of "self-serving acts of a very limited nature that cannot be deemed to have thrown a protective mantle of nonconforming use over Plaintiff's entire parcel of land as against a later prohibitory ordinance." Furthermore, some of the acts of the Plaintiff to prepare the land for quarrying occurred after the effective date of the zoning ordinance and thus were irrelevant to establishing a prior nonconforming use. Comment: This issue is not without some dispute. There were cases early in DIRT’s history that delineated the problem. See, e.g. Hansen Bros. v. Bd. of Supervisors of Nevada County, 35 Cal. Rptr. 358 (Cal. App. 1994) (The DIRT DD for 4/11/95) (Mining use in one area of a parcel land is entitled to be extended to balance of parcel as a pre-existing use, but owner cannot significantly intensify rate of extraction.) This case held that the mining activity “imprinted” the entire parcel, and acknowledged that the doctrine applies primarily to mining and not to other activities. But compare: Township of Fairfield v. Likanchuk's, Inc., 644 A.2d 120 (N.J.Super.App.Div. 1994). (part of the same DD) (The expansion of a mining operation from a small area of a tract to the entire tract, where mining is a prior nonconforming use, constitutes an illegal expansion of the use.) The lattter case differentiates its facts from those applying the “diminishing asset” notion. It characterized the “So called diminishing asset" cases are slightly different, since the nature of the nonconforming use, such as excavation or soil removal, involves the utilization of a wasting asset and requires continual expansion over an area. Nonetheless, in such cases, the owner must show that the entire tract was dedicated by the owner to the mining activity despite the fact that the activity was limited when it was rendered a nonconforming use. The mere unexpressed intention or hope of the owner to use the entire tract at the time the restrictive zoning ordinance is adopted is not enough. Intent must be objectively manifested by the initial and ongoing operation of the owner before the activity was rendered nonconforming. Hansen, cited above, also embodies this principle. Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. 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