Court allows more mining at Cheektowaga quarry


New York's highest court has given Buffalo Crushed Stone permission to mine land across Indian Road in Cheektowaga, outside the boundaries of the town zoning district that allows mining.


The Court of Appeals ruling today is a blow to the Town of Cheektowaga and citizen groups that have opposed the expansion of mining at the 80-year-old quarry.


The court said &quotit is unrealistic and unreasonable&quot to require the company to have actively mined all the areas within its 280-acre property before the town passed a zoning ordinance in 1969.


Quarrying contemplates a gradual unearthing of the minerals in the land, and so excavation of portions of the land may be sufficient to manifest an intention to conduct quarrying on the property as a whole,&quot the court's decision stated.


The Court of Appeals also overturned another portion of the Appellate Division ruling, and held that the quarry is allowed to mine two parcels near Como Park Boulevard.


The decision dealt with the issue of &quotprior non-conforming use&quot ? how a parcel was used before the creation of a zoning district that would outlaw the use. 


The court ruled that the non-conforming use did not extend to a parcel on the western part of the quarry, and to several parcels closer to Como Park Boulevard, because it could not be determined if the parcels were acquired before the aggregate zoning ordinance was put into effect in 1969.


Chief Judge Jonathan Lippman and Judge Victoria A. Graffeo dissented from the five-judge majority, and would not have allowed mining on the parcel to the east of Indian Road. The two judges also believe the parcel to the west should not be mined.


&quotBy failing to adhere to our prior analytical framework in this context, the majority today muddies an area of law that ought to be predictable for a host of practical purposes,Lippman wrote in his dissent. 


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