
    In the Matter of Pittsford Gravel Corporation, Respondent, v. Zoning Board of the Town of Perinton et al., Appellants.
   Motion for preliminary injunction granted in accordance with the following Memorandum : The Town of Perinton has appealed from a judgment rendered at Special Term which declared its Local Law No. 3-1972 entitled “ Excavation Law ’’ of the Town of Perinton to be invalid. Pearing that respondent would resume excavation on its 137-acre plot in the town before determination of the appeal, the appellant has moved for a preliminary injunction restraining respondent from excavating or preparing for excavation of the subject premises pending the appeal from the judgment. Appellant has sufficiently shown that acts of,respondent are threatened or imminent which will cause material or irreparably injury and that there is a reasonable probability of its success on the appeal. It appears, however, that there is a 13-acre area, adjoining Route 96, which has been previously operated as a gravel pit in such a way as to establish a pre-existing nonconforming use of that part of the subject property. Respondent’s vice-president John G. White in his affidavit verified September 5, 1973 avers that the work contemplated to be performed from September 10, 1973 to December 1, 1973 will all be performed on this 13-acre disturbed area. In our opinion respondent should be permitted to operate in that area in the manner specified in paragraphs 2a, 2b, 2c and 2d of Mr. "White’s affidavit but on that portion of the premises only. The motion for a preliminary injunction should be granted as to all of respondéht’s property except the 13-acre disturbed area prohibiting respondent from excavation or defoliage of the remaining premises pending determination of the" appeal. Present — Goldman, P. J., Marsh, Moule, Cardamone and Henry, JJ.  