                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     518997
________________________________

In the Matter of COBLESKILL
   STONE PRODUCTS, INC.,
                    Appellant-
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TOWN OF SCHOHARIE et al.,
                    Respondents-
                    Appellants.
________________________________


Calendar Date:   January 14, 2015

Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.

                             __________


      Stack Law Office, Syracuse (Rosemary Stack of counsel), for
appellant-respondent.

      Young Sommer LLC, Albany (David C. Brennan of counsel), for
respondents-appellants.

                             __________


Peters, P.J.

      Cross appeals from an order of the Supreme Court (Devine,
J.), entered August 5, 2013 in Schoharie County, which, in a
combined proceeding pursuant to CPLR article 78 and action for
declaratory judgment, granted respondents' motion for partial
summary judgment.

      As more fully set forth in our prior decisions in this
matter (112 AD3d 1024 [2013]; 95 AD3d 1636 [2012]), petitioner
operates a quarry in the Town of Schoharie, Schoharie County,
which has been in operation since the 1890s. Pursuant to
respondent Town of Schoharie's 1975 zoning ordinance,
                              -2-                518997

"[c]ommercial [e]xcavation or [m]ining" was a permitted use upon
receipt of a special permit from the Town. In 2000, while this
ordinance was in effect, petitioner purchased an additional
parcel of real property to the south of the areas that it
actively mined. Petitioner did not apply for a special permit,
but sought to amend its Department of Environmental Conservation
mining permit to include the new parcel and other adjacent
property that it owned which, at that time, was unmined and
unpermitted. During the pendency of that application, the Town
adopted a new zoning ordinance, Local Law No. 2 (2005) of the
Town of Schoharie (hereinafter Local Law No. 2), which, among
other things, prohibited mining in agricultural zones, where
petitioner's property is located.

      Petitioner then commenced this combined CPLR article 78
proceeding and declaratory judgment action seeking, as is
relevant here, a judgment declaring that it has a vested right to
quarry as a preexisting nonconforming use under Local Law No. 2
and any subsequently enacted prohibitory zoning amendment.
Supreme Court granted petitioner's motion for partial summary
judgment on this cause of action. Upon appeal, this Court
reversed Supreme Court's judgment, finding that questions of fact
persisted as to whether petitioner had a vested right to mine the
southern property (95 AD3d at 1637-1639). On remittal,
respondents moved for partial summary judgment on the same cause
of action, alleging that petitioner could not establish a vested
right to mine the southern property based on a nonconforming use
because it never sought or obtained a special permit, as required
by the 1975 zoning ordinance. Alternatively, respondents argued
that the Town nonetheless would have had a rational basis,
supported by substantial evidence, to deny any special permit
under the Town's 1975 zoning ordinance. Supreme Court granted
respondents' motion for partial summary judgment and dismissed
the vested right cause of action,1 prompting these cross


    1
        After Supreme Court dismissed the vested right cause of
action, it issued a judgment deciding some of the remaining
causes of action and annulling Local Law No. 2. As a result, the
1975 zoning ordinance is currently in effect in the Town.
Although petitioner applied for a special permit pursuant to this
                              -3-                   518997

appeals.2

      We reverse. The Court of Appeals has repeatedly rejected
the notion that "permits are a prerequisite to establishing prior
nonconforming use rights" (Buffalo Crushed Stone, Inc. v Town of
Cheektowaga, 13 NY3d 88, 101 [2009]; see Jones v Town of Carroll,
15 NY3d 139, 144 [2010]; Glacial Aggregates LLC v Town of
Yorkshire, 14 NY3d 127, 137-138 [2010]; see also Subdivisions,
Inc. v Town of Sullivan, 75 AD3d 978, 981 [2010]). Thus,
although a special permit was required for mining operations
between 1975 and 2005, petitioner's failure to obtain one does
not, as a matter of law, preclude it from establishing that it
has a vested right to mine on its property notwithstanding a
current or future prohibitive zoning ordinance (see id.).
Accordingly, Supreme Court erred in granting partial summary
judgment to respondents dismissing the vested right cause of
action based on petitioner's failure to obtain a special permit
pursuant to the 1975 zoning ordinance.

      Further, we do not find that Supreme Court's subsequent
judgment partially granting the petition and annulling Local Law
No. 2 renders the instant appeal moot. Should a new zoning
ordinance with the same prohibition against mining be enacted, a
declaration that petitioner had a vested right as against the
earlier law would affect the rights of the parties (see Matter of
City of Glens Falls v Town of Queensbury, 90 AD3d 1119, 1120
[2011]).

      Finally, respondents argue that they are nevertheless
entitled to partial summary judgment on the additional and
alternative ground that the Town would have had a rational basis


ordinance in April 2014, the Town swiftly enacted a moratorium
on, among other things, special permits for mining that remains
in effect.
     2
        Inasmuch as Supreme Court's order   granted respondents'
motion for partial summary judgment, they   are not aggrieved and
their cross appeal must be dismissed (see   CPLR 5511; Matter of
Covel v Town of Peru, 123 AD3d 1244, 1246   n [2014]).
                              -4-                  518997

to deny any special permit under its 1975 zoning ordinance.
While respondents request that we remit the matter to Supreme
Court to address this alternative argument in the first instance,
we decline to do so and instead reach such argument in the
interest of judicial economy (see Faler v Haines, 104 AD3d 1120,
1121 [2013]). Notably, the record contains no application for
such a permit and, thus, there is no evidence regarding the
purported basis upon which the Town could deny such application.
Accordingly, respondents' claim in this regard is entirely
speculative and nonjusticiable (see Matter of Association for a
Better Long Is., Inc. v New York State Dept. of Envtl.
Conservation, 97 AD3d 1085, 1087 [2012], mod on other grounds 23
NY3d 1 [2014]; see generally Matter of Wal-Mart Stores v
Campbell, 238 AD2d 831, 832-833 [1997]; Matter of Dun-Rite Towing
v Village of Tarrytown, 215 AD2d 654, 654 [1995]). The parties'
remaining contentions, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     McCarthy, Garry and Rose, JJ., concur.



     ORDERED that the cross appeal is dismissed, without costs.

      ORDERED that the order is reversed, on the law, without
costs, motion denied and matter remitted to the Supreme Court for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
