Opinion
69015.
Decided September 14, 2006.
PETER J. SORGI, ESQ., Hopkins, Garas Sorgi, PLLC, Williamsville, New York, for the Petitioner.
ANTHONY DiFILLIPPO, III, ESQ., East Aurora, New York, for the Respondent.
Plaintiff Glacial Aggregates is a sand and gravel mining company. In 1996, plaintiff purchased 350 acres of property in the Town of Yorkshire. On January 2, 1997, plaintiff submitted a mining application to the New York State Department of Environmental Conservation (DEC). At that time, the town had no zoning laws. On September 24, 1999, the DEC issued a permit that allowed Glacial to operate a mine on 122 of the acres it had purchased.
On June 11, 2001, the town adopted a zoning ordinance which prohibited commercial mining within the town. On April 6, 2004, Glacial entered into an agreement to sell its interest in the property for $1,250,000.00, contingent upon, among other things, Glacial's representation that it had acquired the permits necessary to conduct mining operations. On July 8, 2004, the Yorkshire Town Supervisor wrote to Glacial indicating that Glacial had the right to operate a sand and gravel mine in the town.
However, on July 22, 2004, the supervisor wrote again, stating that his first letter was in error and, because mining operations had not been commenced prior to the enactment of the town's zoning law, mining could not be conducted in the town. Because of this second letter, Glacial claims that its sale of the property then fell through and on August 23, 2004, Glacial commenced this action for a declaratory judgment declaring that it had a vested right to conduct mining operations on the property.
The town has now moved to dismiss or, alternatively, for summary judgment.
Glaicial opposes the town's motion and has cross-moved for summary judgment. The court will address each of the grounds raised separately.
The Town's Motion on Statute of Limitations Grounds
The town contends that Glacial's claim under 42 USC § 1983 accrued on June 11, 2001 when the town adopted its zoning laws. Because the statute of limitations for this claim is three years, and Glacial did not commence the action until August 23, 2004, the claim is untimely. Glacial contends that the cause of action did not accrue until July 22, 2004, when Glacial claims it was deprived of its vested rights. The court agrees.
Using the date an ordinance was enacted as the accrual date for statute of limitations purposes would mean that no cause of action could be asserted after three years. That is akin to using the date a penal law statute was enacted, rather than the date the crime was committed, as the accrual date for statute of limitations purposes. Here, Glacial is not challenging the ordinance; Glacial claims it had a vested right to conduct mining operations in the town and the town attempted to take that right away on July 22, 2004. It is that action that Glacial challenges. Accordingly, the town's motion to dismiss on statute of limitations grounds is denied.
The Town's Motion to Dismiss Glacial's Vested Rights Claim
The town contends that Glacial lacks a vested right to mine the property because Glacial does not meet the "substantial expenditure" and "substantial construction" requirements. Further, even if Glacial met those standards and acquired vested rights to mine, Glacial has abandoned those rights. Glacial disagrees with the standard that should be met, arguing that the standard is "inequitable serious hardship" rather than "substantial expenditure/substantial construction". Glacial further denies that it has abandoned the site.
In Town of Orangetown v. Magee ( 88 NY2d 41, 47, 643 NYS2d 21, 24, the Court of Appeals found that "a vested right can be acquired when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development". Further, neither the issuance of a permit nor the owner's "substantial improvements and expenditures, standing alone [emphasis supplied], will establish the right" ( Id., 88 NY2d at 47, 643 NYS2d at 24-25). Whether the landowner has "sufficiently committed the land to the use authorized by the permit prior to revocation is a question of fact" ( Id., 88 NY2d at 48, 643 NYS2d at 25).
Defendant contends that, after spending $250,000 to buy the property, it spent more than another $500,000 going through the application process, commissioning professional studies, doing soil borings, drilling monitoring wells, installing road grid infrastructure, conducting hydrogeologic studies, excavating and trucking aggregate, cutting and removing trees, and clearing and maintaining the property. All that is left to do, according to Glacial, is building the bridge that has been designed and for which raw materials have been purchased, and paving 500 feet of an existing road. Glacial contends it has a legally issued permit and has made substantial changes to the property and incurred substantial expenses in doing so.
The town claims it "is not aware" of any mining activities conducted in 2000, when Glacial alleges it removed 20 truckloads of aggregate in March and 20 more in October, and, even if true, that activity is insufficient to meet what it calls the "substantial expenditure/substantial construction" standard. The town further contends that the things Glacial has done do not meet the test of "substantial construction". Glacial notes, however, that mining does not require the construction of large buildings and to require constructing a building in the mining context is inappropriate. Further, the language in Town of Orangetown is "substantial changes" and "substantial expenses" ( 88 NY2d at 47, 643 NYS2d at 24), rather than the "substantial expenditure" and "substantial construction" (emphasis supplied) utilized by defendant.
It seems to this court that whether Glacial's efforts demonstrate that Glacial has "effect[ed] substantial changes and incur[red] substantial expenses" ( see Town of Orangetown v. Magee, 88 NY2d 41, 47, 643 NYS2d 21, 24), or shows "substantial work already has been performed in good faith and reliance upon a valid . . . permit" ( see Lamar Advertising v. Pitman, 9 AD3d 734, 780 NYS2d 233 [3rd Dept. 2004]), or shows that the town's actions "would inequitably cause a serious hardship or loss" ( see Preble Aggregate, Inc. v. Town of Preble, 263 AD2d 849, 694 NYS2d 788 [3rd Dept. 1999]), is a fact based issue which will require a trial to resolve ( see Ramapo 287 Limited Partnership v. Village of Montabello, 165 AD2d 544, 568 NYS2d 493 [3rd Dept. 1991]). Similarly, the claim that Glacial abandoned its right is also a question of fact. Therefore, the town's motion to dismiss Glacial's vested rights claim is also denied.
Glacial's Cross-Motion for Summary Judgment
Glacial has cross-moved for summary judgment pursuant to Town Law § 68 (4) on the grounds that this case has been settled. Glacial alleges that on September 21, 2004, the Yorkshire Town Board passed a resolution allowing Glacial to mine, and also passed a resolution authorizing Glacial to begin mining operations, contingent upon "certain stipulations" and subject to town board approval.
On October 4, 2004, the town board defeated a proposal to rescind the two September 21, 2004 resolutions. However, on October 12, 2004, at a special board meeting, the board voted to rescind the two resolutions that had been passed on September 21, 2004. Glacial contends that notwithstanding the October 12, 2004 vote, the September 21, 2004 resolution was a vote to settle this lawsuit.
Town Law § 68 (1) (a) provides that a town board may settle a lawsuit against it with the approval of the court in which the action is pending. However, Town Law § 68 (4) provides that notwithstanding any other provision, "the town board of any town may compromise or settle the any action, proceeding or claim against the town upon such terms as said board shall determine are just. . . ." Aside from the fact that the September 21, 2004 resolutions are unclear about the terms of the proposed settlement, and leaving aside the fact that the settlement resolutions were repealed three weeks later, there was no settlement here. A settlement requires the assent of both parties. The fact that one party agrees to settle does not a settlement make. Accordingly, Glacial's motion for summary judgment is also denied.
Conclusion
The court believes it addressed all the issues. If that is not the case, please notify the court. Otherwise, submit an order.