
    In the Matter of Syracuse Aggregate Corporation, Respondent, v Paul Weise et al., as Members of and Constituting the Town of Camillus Board of Zoning Appeals, Appellants.
    Argued October 13, 1980;
    decided November 18, 1980
    
      POINTS OF COUNSEL
    
      Bradley J. Carr for appellants.
    I. The Board of Zoning Appeals had jurisdiction to review and revoke the excavation permit issued by the building inspector. (Matter of Levien v Board of Zoning & Appeals of Inc. Vil. of Russell, 64 Misc 2d 40; Matter of Levine v Buxenbaum, 19 Misc 2d 504; Matter of Hinna v Board of Appeals of Town of Hempstead, 11 Misc 2d 349; Matter of Bachety v Volz, 65 Misc 2d 176, 39 AD2d 842.) II. In an appeal from a determination of the Board of Zoning Appeals, the decision of the board is presumed to be correct and the courts may not substitute their own judgment for the judgment of the board unless it clearly appears to be arbitrary, capricious or contrary to law. (Matter of Cowan v Kern, 41 NY2d 591; Corter v Zoning Bd. of Appeals for Vil. of Fredonia, 46 AD2d 184; Matter of Davison v Segur, 24 AD2d 797; Matter of First Nat. Bank of Glens Falls v Sheehan, 30 AD2d 912; Matter of Falvo v Kerner, 222 App Div 289; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Campus v Delany, 62 AD2d 990; Matter of Mandell v Purcell, 54 AD2d 935; Matter of Collins v Behan, 285 NY 187; Matter of Kadish v Simpson, 55 AD2d 911.) III. The decision of the Board of Zoning Appeals in this case was neither arbitrary nor capricious, is supported by substantial evidence in the record and is proper in all respects. (Matter of Kenyon v Quinones, 43 AD2d 125; Matter of Laucella v Siegel, 38 AD2d 973; Matter of New York City Housing Redevelopment Bd. v Foley, 23 AD2d 84, 16 NY2d 1071; Matter of Foxluger v Gossin, 65 AD2d 922; Matter of Held v Guiliano, 46 AD2d 558.) IV. As a matter of law, the building inspector misinterpreted the zoning ordinance of the Town of Camillus when he issued an excavation permit in a residential R-3 district. V. The public policy of New York and the Town of Camillus is to limit nonconforming uses until they expire. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Matter of 
      
      Off Shore Rest. Corp. v Linden, 30 NY2d 160.) VI. The right to continue a nonconforming use does not include a right to extend, change or enlarge it. (Matter of Cave v Zoning Bd. of Appeals pf Vil. of Fredonia, 49 AD2d 228; Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137; Breed v Town of Clay, 21 Misc 2d 856; Marra v State of New York, 61 AD2d 38.) VII. Regarding expansion of nonconforming quarries, New York has adopted the narrow rule that limits the quarry to those areas in use at the time the quarry became nonconforming. (People v Gerus, 19 Misc 2d 389; Breed v Town of Clay, 21 Misc 2d 856; Town of Hempstead v Goldblatt, 9 NY2d 101; Matter of Dolomite Prods. Co. v Kipers, 19 NY2d 739, 20 NY2d 743, 389 US 214; New York Trap Rock Corp. v Town of Clarkstown, 1 AD2d 890, 3 NY2d 844, 356 US 582; Town of Somers v Camarco, 284 App Div 979, 308 NY 537; People ex rel. Ventres v Walsh, 121 Misc 494; People v Gerus, 19 Misc 2d 389.) VIII. A nonconforming use cannot be extended where the increase in volume changes the character or dimension or effect of the use. (Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228; Thayer v Baybutt, 29 AD2d 486; Incorporated Vil. of Williston Park v 280 Hillside Ave. Rest. Corp., 55 AD2d 927; Town of Oyster Bay v Avalon Yacht & Cabana Club, 38 AD2d 604.)
    
      Sidney Devorsetz for respondent.
    I. The only credible evidence leads to the inescapable conclusion that the entire subject property is impressed with a nonconforming use. II. The protective umbrella of a legal nonconforming use extends to the entire parcel if the manifest intent is to appropriate the entire parcel to such use from its inception. (Thomson Inds. v Incorporated Vil. of Port Washington North, 27 NY2d 537; Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339, 19 NY2d 739; New York Trap Rock Corp. v Town of Clarkstown, 3 NY2d 844, 356 US 582; People ex rel. Ventres v Walsh, 121 Misc 494; Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137; Marra v State of New York, 61 AD2d 38; American Ind. Contr. Co. v Travelers Ind. Co., 54 AD2d 679; Carhuff v Barnett's Bake Shop, 54 AD2d 969; Ruhm v C. P. Craska, Inc., 59 AD2d 1016; Gilmore v Beyer, 46 AD2d 208; McGovern v Anzolone, 22 Misc 2d 895.) III. The only use to which the subject premises can reasonably be put is as a gravel bed.
   OPINION OF THE COURT

Jasen, J.

At issue on this appeal is whether a prior nonconforming use involving the extraction of sand, gravel and related materials from a parcel of land extends to the entire parcel or is limited to that portion of the parcel actually excavated at the time the municipality adopted a zoning ordinance prohibiting the expansion of the nonconforming use.

In this article 78 proceeding, petitioner seeks to annul a determination of the Board of Zoning Appeals of the Town of Camillus. The property in question is a 25-acre parcel of land located in the Town of Camillus. Petitioner, a domestic corporation engaged in the business of quarrying gravel, purchased the property on April 27, 1978 from Arthur Herring. Mr. Herring acquired the property in 1926 and from that date had engaged in the business of extracting various grades of sand, gravel, topsoil and fill from the parcel which he sold commercially. Over the years during which he conducted this business, Mr. Herring made various improvements to the land, including an interior network of haul roads extending across the length of the parcel, a structure located in the center of the property housing processing equipment for excavated materials and a storage shed for tools used in the mining operation. Although his principal activities were concentrated in a five-acre portion of the parcel where a clearly identifiable excavation developed, Mr. Herring occasionally would, depending on the demands of his customers, strip topsoil and extract various types and gradations of surface gravels from throughout the property.

Effective September 27, 1961, the property in question was zoned residential R-3. Section 26-15 of the new zoning ordinance provided in pertinent part:

"All building structures and uses not conforming to the regulations of the district in which they are located at the time of adoption of this Ordinance shall be known and regarded as 'nonconforming’.
"A nonconforming * * * use may be continued subsequent to adoption of this Ordinance provided that * * * no such use shall be enlarged or increased to occupy a greater area of land than was occupied at the effective date of the adoption of this Ordinance.”

Thereafter, the Town of Camillus adopted an ordinance requiring those engaging in the excavation of soil and earth to obtain a permit from the town building inspector.

In early 1977, petitioner contracted with Mr. Herring to purchase the property contingent upon petitioner’s acquisition of an excavation permit. Petitioner then prepared and submitted to the town topographic maps and reclamation plans which called for excavation of approximately 20 acres of the parcel. On March 31, 1978, the town building inspector issued petitioner a one-year mining permit. Thereafter, petitioner purchased the property from Mr. Herring.

On April 5, 1978, a councilman for the Town of Camillus appealed the building inspector’s issuance of the permit to the Board of Zoning Appeals of the Town of Camillus (hereinafter the "Board”). After a public hearing was held to consider the matter, the Board revoked petitioner’s excavation permit, apparently finding that petitioner’s proposed activities would constitute an improper expansion of Herring’s prior nonconforming use. Petitioner then commenced the present article 78 proceeding seeking to annul the Board’s determination.

At Special Term, petitioner contended that the Board had acted arbitrarily in revoking the excavation permit because petitioner had a right to engage in the planned excavation as the present owner of the prior nonconforming use established by Mr. Herring. Special Term rejected petitioner’s contention and dismissed the petition, finding that only five acres of the 25-acre parcel actually had been mined by Herring at the time of the 1961 zoning ordinance and that the nonconforming use could not be extended beyond the five-acre portion so mined.

A unanimous Appellate Division reversed and annulled the Board’s determination. The Appellate Division found that even though petitioner’s predecessor in interest may not have excavated on every portion of the parcel, Mr. Herring’s activities on the property prior to the 1961 zoning ordinance sufficiently manifested an intent to appropriate the entire parcel of land for purposes of excavation and quarrying. Accordingly, the Appellate Division concluded that petitioner was entitled to the benefit of Herring’s nonconforming use which extended to the entire 25 acres of the parcel. We agree.

Before reaching the issue of the extent of the prior nonconforming use, we note that the Board failed to make any factual findings in support of its determination. Ordinarily, such a deficiency would require that the matter be remanded to the Board as proper judicial review of such determinations is impossible unless the zoning authority makes findings of fact and delineates those findings which provided the basis for its decision. (Matter of Community Synagogue v Bates, 1 NY2d 445, 454-455; Matter of Collins v Behan, 285 NY 187; cf. Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488, 498.) However, because the record clearly indicates that the Board’s action in revoking petitioner’s excavation permit is contrary to law, we agree with the approach taken by the Appellate Division in not remanding the matter in order for the Board to go through the formality of making factual findings in support of a determination which cannot be sustained. (Cf. Matter of Von Kohorn v Morrell, 9 NY2d 27, 34; Matter of New York City Housing & Redevelopment Bd. v Foley, 23 AD2d 84, affd 16 NY2d 1071; see, also, Elmira Soc. for Prevention of Cruelty to Animals v Town Bd. of Town of Big Flats, 58 AD2d 691.)

The parties do not dispute that Mr. Herring acquired a nonconforming use at the time of the enactment of the 1961 zoning ordinance or that petitioner, as the present owner of the property, is entitled to protection in its continued enjoyment of that use. (Town of Somers v Camarco, 308 NY 537; People v Miller, 304 NY 105.) Rather, the sole point of contention between the parties relates to the extent of the nonconforming use to which petitioner is entitled.

While the precise question presented on this appeal has not heretofore been considered by this court, the rules relating to nonconforming uses are well settled. Although the overriding policy of zoning is aimed at the ultimate elimination of nonconforming uses (Matter of Harbison v City of Buffalo, 4 NY2d 553, 559-560), nevertheless, a zoning ordinance cannot prohibit an existing use to which the property has been devoted at the time of the enactment of the ordinance. (Ilasi v City of Long Beach, 38 NY2d 383, 387; Lutheran Church in Amer. v City of New York, 35 NY2d 121, 129.) However, to establish a right to a nonconforming use, the person claiming the right must demonstrate that the property was indeed used for the nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective. (See Matter of Harbison v City of Buffalo, 4 NY2d 553, supra; People v Miller, 304 NY 105, supra; see, generally, 3 Rathkopf, Law of Zoning and Planning, p 58-3.) Moreover, although not every inch of the property need be embraced by the use in order to entitle the entire parcel to exemption from a restrictive ordinance, by the same token use of a limited portion of the premises will not necessarily serve to pre-empt the entire parcel as against a later prohibitory zoning ordinance. (See, e.g., Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339, affd 19 NY2d 739; see, generally, 82 Am Jur 2d, Zoning and Planning, § 197.)

The test most often employed in determining the extent of a nonconforming use 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.” (Matter of Fairmeadows Mobile Vil. v Shaw, 16 AD2d 137, 142, quoting Gross v Allan, 37 NJ Super 262, 272.) Application of this standard necessarily entails an examination of the nature of the particular nonconforming use in issue as well as the activities engaged in by the landowner in effectuating that use prior to the adoption of the restrictive ordinance.

By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it (see, e.g., Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Harbison v City of Buffalo, 4 NY2d 553, supra; Matter of Cave v Zoning Bd. of Appeals of Vil. of Fredonia, 49 AD2d 228), quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus, as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.

It is because of the unique realities of gravel mining that most courts which have addressed the particular issue involved herein have recognized that quarrying constitutes the use of land as a "diminishing asset”. (See, e.g., County of Du Page v Elmhurst-Chicago Stone Co., 18 Ill 2d 479.) Consequently, these courts have been nearly unanimous in holding that quarrying, as a nonconforming use, cannot be limited to the 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. (McCaslin v City of Monterey Park, 163 Cal App 2d 339; County of Du Page v Elmhurst-Chicago Stone Co., 18 Ill 2d 479, supra; Hawkins v Talbot, 248 Minn 549; Moore v Bridgewater Twp., 69 NJ Super 1; Borough of Cheswick v Bechman, 352 Pa 79; but see Town of Wayland v Lee, 325 Mass 637.)

In this case, quarrying has been conducted on the property since 1926. From that time, materials have been removed from various portions throughout the parcel. For example, fine gravel was taken from the northern section while coarse and medium size gravel was mined from the southern areas. As mentioned earlier, service roads were placed throughout the parcel and a processing structure was erected strategically in the center of the property. In fact, no part of the land was ever dedicated to a use other than the quarrying of sand and gravel. Given such outward manifestations of intent and in light of the unique character of the business engaged in, it can only be concluded that the nonconforming use extends throughout the property even though the principal excavation was limited to a five-acre portion of the parcel.

This is not to say that a landowner, merely by preparing to engage in a gravel operation and undertaking a few self-serving acts of a very limited nature, will have thrown a protective mantle of nonconforming use over his entire parcel of land as against a later prohibitory zoning ordinance. Nor is it possible to extend the protection of a permitted nonconforming use established on one parcel of land to physically separate though adjoining parcels. (Matter of Dolomite Prods. Co. v Kipers, 23 AD2d 339, affd 19 NY2d 739, supra; New York Trap Rock Corp. v Town of Clarkstown, 1 AD2d 890, affd 3 NY2d 844.) But where, as here, the owner engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property.

In conclusion, our holding in no sense affords petitioner a carte blanche to engage in its mining operation. To the contrary, the town can adopt measures reasonably regulating the manner in which petitioner uses its quarry (Town of Hempstead v Goldblatt, 9 NY2d 101, affd 369 US 590) and may even eliminate this nonconforming use provided that termination is accomplished in a reasonable fashion (see Modjeska Sign Studios v Berle, 43 NY2d 468; Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563, supra). The town, however, may not prevent petitioner from doing that which it has a legal right to do by arbitrarily denying petitioner a permit to continue to use the land in conjunction with the previously engaged in quarrying operation. (Town of Somers v Camarco, 308 NY 537, 541, supra.)

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke

(dissenting). Although I agree that generally the scope of a nonconformingvuse of property for soil mining is not limited solely by the extent of actual excavation at the time the zoning ordinance was adopted, I would remit the matter to Supreme Court for remand to the Board of Zoning Appeals — a course which the majority concedes is ordinarily proper.

There is no question that Mr. Herring engaged in soil mining or quarrying prior to adoption of the restrictive ordinance and thus was entitled to continue his operations as a nonconforming use. The only disputed issue is the extent of that nonconforming use.

I agree with the majority that given the peculiar nature of soil mining, it is unrealistic and unreasonable to define the extent of such a nonconforming use by the extent of actual excavations existing when the ordinance was adopted. This is so because soil mining or quarrying manifestly contemplates gradual excavation along both vertical and horizontal lines as demand dictates. To recognize the unique quality of this form of land use, however, does not resolve the factual question concerning the extent to which a particular parcel has been dedicated to such use. Just as excavation of only a portion of the property does not define the extent of the nonconforming use, use of a limited portion generally should not and does not render the entire parcel nonconforming (see Matter of Dolomite Prods. Co. v Kippers, 23 AD2d 339, affd 19 NY2d 739).

It is because resolution of this case turns on the facts that I am compelled to dissent from the majority’s action. Here, the Board of Zoning Appeals failed to make factual findings and at least some members employed an improper standard in reaching a decision. Without fact findings by the board and a coherent basis for its determination, this court cannot properly review the board’s action (see Matter of Community Synagogue v Bates, 1 NY2d 445). The only proper course in such a case is to remit to Supreme Court with directions to remand the matter to the board for that body to make factual findings and conclusions consistent with the proper standards (see id.; Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289, [decided herewith]).

Contrary to the majority, I cannot view such a remand as a mere "formality”. The board is free to accept or reject testimony in resolving relevant fact questions and may draw inferences from those facts in determining Mr. Herring’s intention and the extent to which he effectuated that intention. This court does not enjoy the same fact-finding power. Notwithstanding its limited review function, this court has made a factual determination that the entire 25-acre parcel may be mined as a nonconforming use. It is this unjustifiable invasion of the board’s function that is objectionable and in which I cannot concur.

Judges Jones, Wachtler, Fuchsberg and Meyer concur with Judge Jasen; Chief Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Gabrielli concurs.

Order affirmed. 
      
       Our failure to remand in this case is not the result of a factual determination on our part. As the dissent properly notes, we have no power to find facts. Rather, our holding is premised upon our view that the record before the Board supports but one conclusion, to wit: petitioner’s nonconforming use extends throughout the parcel. Hence, under these circumstances, a remand to the Board is unnecessary.
     