The opinion of the court was delivered by: Ciparick, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this zoning case, the issue is whether Buffalo Crushed Stone, Inc. (BCS) established a prior nonconforming use to quarry certain subparcels of its 280-acre property, thereby relieving it from the Town of Cheektowaga's zoning ordinances.
Applying the analysis set forth in Matter of Syracuse Aggregate Corp. v Weise (51 NY2d 278, 284-287 ), we hold that the long and exclusive quarrying operation of BCS and its predecessors and their preparations to use areas left as aggregate mineral reserves --- consistent with the nature of quarrying -- established a right of prior nonconforming usage on the disputed subparcels. We conclude, however, that this right does not extend to subparcel 25D and to the thoroughfares, or roadway subparcels, (28A/28B, 29A/29B, 30A/30B and 31-33) because there are factual issues remaining as to whether BCS acquired these areas prior to the 1969 zoning ordinance.
BCS owns approximately 280 acres of property in the Town of Cheektowaga, where it operates a hard-rock quarry. For the past 80 years, BCS and its predecessors, including Federal Crushed Stone Corporation (Federal),*fn1 have devoted the land exclusively to quarrying. The quarry consists of mineral extraction sites located primarily in the center of the property, along with processing areas, buffer zones and roads. BCS and its predecessors acquired the land in a number of transactions, either by purchase or lease, between 1929 and 1991. Only some of these subparcels --- comprising four geographic regions located in the east, south and west -- are relevant in this case. The disputed subparcels are mainly areas that BCS maintained as mineral reserves, which have not been quarried.
Before 1942, there were no zoning ordinances or other limitations on the property's usage. The Town then enacted ordinances, demarcating the property into certain zones or districts, and denominating such zones as residential, industry and an airport. Federal's land was classified within the Second Industrial District. The ordinance allowed gravel pits and stone quarries to be constructed in this zone, provided that the quarry company procure a permit. The ordinance explicitly permitted nonconforming uses to continue unabated upon the condition that no buildings in the Second Industrial District be enlarged or destroyed.
In 1969, the Town repealed the 1942 ordinance, enacting the 1969 zoning ordinance that divided Federal's lands into four zoning districts: a residential district, a business district, a manufacturing district and a "special" district. Section 7-01 of the ordinance, entitled "Non-conforming Use... Regulations," permitted the continuation of nonconforming activities on the property, but prohibited their extension or enlargement. Thus, this ordinance permitted Federal to continue its mining operation within the "AG Special Aggregate District" (AG district) in what is now the center of BCS's operation. In 1992, the Town repealed its 1969 zoning ordinance, adopting new zoning laws that were amended in 1996 and 1997; none of these ordinances altered the boundaries and relevant regulations of the AG district.
In 1998, BCS commenced this action, seeking a declaratory judgment that zoning restrictions applicable to the unexcavated areas of its property were void, and a judgment to enjoin the Town from enforcing its zoning regulations as to those areas. The Town moved for summary judgment and for a declaration that its zoning ordinances were enforceable. BCS then cross-moved for summary judgment on its claims.
Supreme Court, declaring the rights of the parties, held that subparcels within the Town's AG district are entitled to nonconforming use status, and thus quarrying in those subparcels was permissible. The court further held that subparcels 17C/25C and 25I/12B, south of the AG district --- in a residential zone -- were entitled to prior nonconforming usage because they were subject to quarrying permits issued by the Town before the 1969 ordinance. However, the court did not grant such status to parcels located to the east (subparcel 5), to the west (subparcel 25D) and to certain remaining parcels.*fn2 Both parties appealed.
The Appellate Division considered whether BCS had established a nonconforming use for four geographic subparcels:
(1) the large eastern area (subparcel 5); (2) the western area (subparcel 25D); (3) the southern and eastern thoroughfares or roadways (subparcels 28A/28B, 29A/29B, 30A/30B and 31-33); and (4) the southern parcels adjacent to the AG area (subparcels 17C/25C, 12B/25I).
Subparcel 5 is a relatively large area, located in the northeastern portion of the property, immediately adjacent to the AG district. Most of this area is divided from the AG district by Indian Road, a relatively narrow roadway of approximately 24.5 feet in width, extending south to north. Indian Road then turns eastward, dividing this subparcel into a northern portion and a southern portion. BCS's predecessors in interest acquired this area in 1931, but did not quarry it.
Indian Road once extended further north, separating all of subparcel 5 from the AG district. Prior to 1951, the northernmost portion of the road was rerouted over Federal's property, rendering it inaccessible to the public. BCS claims that 5 million tons of aggregate material suitable for excavation is available for appropriation in subparcel 5.
Subparcel 25D is situated in the westernmost region of BCS's property. BCS contends that, in 1959, Federal leased the area from a Dr. Reinstein for the explicit purpose of quarrying and mining limestone. The Town asserts, however, that BCS did not acquire a possessory interest or legal title to the area until 1991 --- long after the enactment of its zoning ordinances.
It is undisputed that neither BCS nor its predecessors obtained a permit to quarry the area before 1969.
Subparcels 28A/28B, 29A/29B, 30A/30B and 31-33 are thoroughfares or roadways located in the southern and eastern portions of the AG district. BCS avers that these roads are long abandoned. They are part of the property leased and conveyed to Federal, contiguous to the AG district, and have been actively mined by BCS and its predecessors for several decades. BCS's predecessors received quarrying permits for portions of these areas in 1955 and 1960.
Subparcels 17C/25C and 12B/25I were leased in approximately 1952, and the Town issued BCS a permit to quarry parts of these subparcels at that time. They are also contiguous to the AG district. Although BCS cleared this area by stripping it of topsoil before 1969, it has not been actively quarried.
The Appellate Division modified Supreme Court's decision by additionally granting the Town summary judgment as to subparcels 17C/25C and 12B/25I. The court held that these subparcels were not entitled to prior nonconforming usage because BCS had not mined them prior to 1969 (55 AD3d 1228, 1231-1232 [4th Dept 2008]). Two Justices dissented as to these subparcels, stating that BCS should not be required to demonstrate actual quarrying activities on each contested subparcel, because such a predicate is not required under controlling prior nonconforming use precedent on quarrying enterprises, and these subparcels should generally be viewed in the context of the entire property as a whole (see id. at 1232-1234). The dissent further stated that BCS and its predecessors had engaged in substantial quarrying activities on the entire 280-acre property for many years; had never utilized the land for any other purpose; and these subparcels were contiguous to BCS's excavation sites. Thus, the dissenters concluded that BCS satisfied the prior nonconforming use standard (see id. at 1232-1234).
Addressing subparcel 5, the Appellate Division stated that this subparcel's physical separation by Indian Road from other parts of the property prevents prior nonconforming use status for that area (see id. at 1233). The entire panel was unpersuaded by BCS's ...