Sand Land Corp. v Zoning Bd. of Appeals of the Town of Southampton

[*1] Sand Land Corp. v Zoning Bd. of Appeals of the Town of Southampton 2014 NY Slip Op 50453(U) Decided on February 18, 2014 Supreme Court, Suffolk County Asher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2014
Supreme Court, Suffolk County

Sand Land Corporation and WAINSCOTT SAND & GRAVEL CORP., Petitioners,

against

Zoning Board of Appeals of the Town of Southampton, JOSEPH PHAIR, MARGOT GILMAN and AMELIA DOGGWILER, Respondents.



12-22081



MACLACHLAN & EAGAN, LLP

Attorney for Petitioners

241 Pantigo Road

East Hampton, New York 11937

TIFFANY S. SCARLATO, TOWN ATTORNEY

Attorney for Respondent Zoning Board of Appeals

116 Hampton Road

Southampton, New York 11968

LAZER, APTHEKER, ROSELLA & YEDID, P.C. Attorney for Respondents Phair, Gilman and Doggwiler

225 Old Country Road

Melville, New York 11747

Gerard Asher, J.

In this Article 78 proceeding, petitioners Sand Land Corporation and Wainscott Sand & Gravel Corp. seek a judgment annulling that part of a determination by respondent Zoning Board of Appeals of the Town Southampton, dated June 21, 2012, which reversed a determination by the Chief Building Inspector, dated July 18, 2011, granting Sand Land Corporation a certificate of occupancy for certain preexisting, nonconforming uses of the premises known as 585 Middle Line Highway, Noyack, New York. For the reasons set forth herein, the petition is granted.

In June 1961, Bridgehampton Road Races Corporation (hereinafter Bridgehampton Road Races) transferred 25 acres of undeveloped real property located in the Town of Southampton to Bridgehampton Sand & Gravel, Inc. Situated at the intersection of Millstone Road and Middle Line Highway, the 25-acre parcel was part of a large tract of land consisting of more than 500 acres owned by Bridgehampton Road Races and zoned G-Industrial District. In January 1962, Bridgehampton Sand & Gravel entered into a separate agreement with Bridgehampton Road Races granting it permission to explore for, mine and sell gravel and sand from an adjacent 25 acres within the same tract of land. The mining agreement, in relevant part, refers collectively to rock, stone and gravel as "gravel" and to "sand, loam and other soil materials" as "sand." Later that same year, respondent Zoning Board of Appeals of the Town of Southampton (hereinafter Zoning Board) granted an appeal filed by Bridgehampton Sand & Gravel challenging the Town Building Inspector's denial of its application for a permit to remove gravel and sand from the land using a portable screening plant, finding that such use was permitted in the G-Industrial District and directing that the permit be issued. The transcript of the Zoning Board's determination of Bridgehampton Sand & Gravel's appeal reveals that when the application to operate a sand and gravel mine at the site was first filed in 1962, the property was completely surrounded by land in the G-Industrial District, "[t]he nearest existing dwelling north and west of the site [was] about 1 mile, and the nearest existing dwelling south and east of the site [was] about a quarter mile away." Subsequently, in November 1963, the 25 acres that were the subject of the January 1962 agreement were transferred by Bridgehampton Road Races to Bridgehampton Sand & Gravel, creating the merged parcel totaling 50 acres that is the subject of the instant proceeding.

Title to the subject property was transferred numerous times during the period from 1963 to 1980. In October 1980, the property was purchased by petitioner Sand Land Corporation (hereinafter Sand Land). Currently, the mining and reclamation operation on the property is conducted by petitioner Wainscott Sand & Gravel Corporation under a mining permit issued to Sand Land by the New York State Department of Environmental Conservation in 2008. The facility also is registered by the DEC under 6 NYCRR Part 360 to conduct certain solid waste management activities. The Part 360 registration permits the Wainscott Sand & Gravel facility to receive uncontaminated concrete, asphalt pavement, brick, soil and rock, as well as uncontaminated and untreated wood, and requires that reports be filed with the DEC explaining the amount of such materials received on site. Significantly, it is undisputed that a sand and gravel mining business has operated continuously at the property from 1963 to the present. Moreover, tree stumps, shrubs, branches, leaves, and yard waste, as well concrete, asphalt pavement, bricks, stones and other construction debris, have been dumped on the property for [*2]decades. In fact, the Town regularly purchased sand and aggregates and dumped various materials, including broken concrete, tree stumps and yard waste, at the site for decades. The organic waste was recycled and used, in part, in the mine's reclamation process, and the concrete, asphalt pavement, bricks and other such materials were processed into a concrete blend.

Meanwhile, in 1972, the Town of Southampton changed the zoning classification for the subject property and the surrounding area from a G-Industrial District to a CR-200 County Residence District. Today, following more than 20 years of soaring demand for real estate on the South Fork, private homes are located within a short distance of the sand and gravel mine, both south of New Line Highway and east and west of Millstone Road, and the tract of land owned by Bridgehampton Road Races is developed with private residences and a private 18-hole golf course, the Bridge Golf Club.

In 2005, Margot Gilman, Joseph Phair, and Robert Flood, as residents of the Town of Southampton owning homes in close proximity to the sand and gravel mine, commenced an action against Sand Land seeking injunctive relief and damages for nuisance. Assigned index number 05-26457, the action includes a claim pursuant to Town Law § 268 (2) for a permanent injunction. The plaintiffs in such action allege, among other things, that Sand Land uses its property for such nonconforming uses as the receipt of concrete, brick, brush and yard debris, and the processing and sale of a concrete blend, mulch and topsoil. They further allege that the odors and noise produced by the alleged nonconforming uses interferes with the use and enjoyment of their neighboring properties. Evidence in the record before this Court shows that Gilman, who lives on Paumanok Road, and Phair, who lives on Millstone Road, built their residences in 1999 and 2002.

In May 2010, during the pendency of such action, Sand Land submitted an application and a letter to the Chief Building Inspector of the Town of Southampton, Michael Benincasa, requesting a Pre-Existing Certificate of Occupancy for the premises. The letter by Sand Land's counsel asserts, in part, that, in addition to the mining operation, the premises has been used since the 1950s for (1) the receipt and processing of trees, brush, leaves and other clearing debris into topsoil or mulch; (2) the receipt and processing of concrete, asphalt pavement, brick, rock and stone into a concrete blend; and (3) the storage and sale of sand, mulch, topsoil, wood chips, and concrete blend at the site. In addition to the letter detailing the alleged bases for it entitlement to a certificate of occupancy for pre-existing uses, Sand Land submitted eight affidavits of individuals who owned, worked for or conducted business at the sand and gravel mine, or who were formerly employed by the Town of Southampton, in support of its application, as well as photographs depicting the various activities allegedly conducted on site for decades. Counsel for the plaintiffs in the lawsuit pending against Sand Land submitted a letter objecting to the application for a certificate of occupancy, along with numerous exhibits.

Later that same year, in October 2010, Robert Flood sold his residence in the Town of Southampton. By order dated February 14, 2011, this Court (Molia, J.) granted Amelia Doggwiler, who moved into her residence on Old Sag Harbor Road in Bridgehampton in 2008, [*3]leave to intervene as a plaintiff in the action for injunctive relief and damages brought by the Gilman and Phair. Thereafter, in June 2011, Sand Land requested a written determination from the Chief Building Inspector that the mining and reclamation activities conducted on its premises are legal nonconforming uses, and that the Mined Land Reclamation Law preempts the Town from regulating all mining and reclamation activities on the property. More specifically, in its letter to the Chief Building Inspector, Sand Land states that Wainscott Sand & Gravel's business operation includes, "as part of its mining and/or reclamation activities," the extraction of sand and gravel, the reclamation of the property, "the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch," "the receipt and processing of concrete, asphalt pavement, brick, rock and stone into concrete blend," and "the storage, sale and delivery from the subject premises of sand, mulch, topsoil, wood chips, and concrete blend." The letter asserts that these activities are interrelated and constitute a single use under the Mined Land Reclamation Law, that they were ongoing when the property was rezoned in 1972 to CR-200 Country Residence, and that the Town's zoning laws regulating the use of the subject property are preempted pursuant to Environmental Conservation Law § 23-2703. As with the May 2010 letter requested a "Pre-Existing Use Certificate of Occupancy," various exhibits were submitted by counsel in support of Sand Land's request for a determination regarding the alleged mining and reclamation activities, including copies of its mining permit and its DEC-approved reclamation plan.

By written determination dated July 18, 2011, Chief Building Inspector Benincasa found that Sand Land was entitled to a Pre-Existing Certificate of Occupancy for its property on Middle Line Highway for "(i) the operation of a sand mine, (ii) the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and (iii) the storage, sale and delivery of sand, mulch, topsoil and wood chips." The Chief Building Inspector, however, rejected Sand Land's claim that its receipt and processing of concrete, asphalt pavement, brick, rock and stone constituted a nonconforming pre-existing use under the zoning code. The next day, a certificate of occupancy was issued certifying the pre-existing use of the property for "the operation of sand mine, the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and the storage, sale, and delivery of sand, mulch, topsoil and wood chips."

Subsequently, Phair, Gilman and Doggwiler filed an application with the Zoning Board appealing those portions of the Chief Building Inspector's July 2011 determination that Sand Land was entitled to a certificate of occupancy for the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and for the storage, sale and delivery of sand, mulch, topsoil and wood chips, based on the finding that such nonconforming uses preexisted the rezoning of the subject property to a CR-200 Country Residence District. A public hearing on the appeal filed by Phair, Gilman and Doggwiler was conducted by the Zoning Board over four days in November 2011 and in January, March and April 2012. In addition to presentations from the attorneys representing Phair, Gilman and Dogwiller and the attorney for Sand Land, the Zoning Board heard testimony from John Tintle, President of Sand Land and an owner of Wainscott Sand & Gravel, from the appellants, and from Jenice Delano, a Town [*4]resident who is constructing a new home on property near the sand and gravel mine. Tintle testified, among other things, that the DEC-approved reclamation plan for the property includes the use of pulverized landscape debris to rebuild the slopes of the mine, and that the ground wood used by Wainscott Sand & Gravel in its reclamation activities came from materials that previously had been buried in, and then excavated from, the mine, and from stumps and other landscape debris brought to the site. He also testified that for the past few years the wood used in the reclamation activities has come only from clearing debris brought to the property. Robert Rubin, the owner of Bridgehampton Road Races and the Bridge Golf Club, also testified at the hearing. Although he does not own a residence in the area, Rubin testified he is an "interested party" who is "paying for the lawsuit," and asserted the question of whether composting should be permitted on the site is a "complex political issue" that should be scrutinized by the Zoning Board rather than "having the building inspector slip it in on some technicality."

The attorneys representing Phair, Gilman and Doggwiler and Sand Land also submitted various documents, photographs of the subject property, and reports in support of and in opposition to the application filed with the Zoning Board challenging the Chief Building Inspector's determination. Further, Sand Land presented the affidavits of the following individuals as support for its claim that the nonconforming uses in dispute preexisted the 1972 change of zoning: Theodore Baranowski, a former machine operator who worked at the mine beginning in the 1950s; Richard LeLand, a former employee of the Sayre-Baldwin Farm, who regularly dumped materials at the site in the 1950s and 1960s; Charles Versaggi, a former truck driver who dumped materials at the site in the 1970s and became a part owner of the company that owned and mined the property from 1979 to 1987; William Masterson, Jr., the Superintendent of Highways and Commissioner of the Public Works for the Town of Southampton from 1989 through 2009; Brian Gilbride, an employee of the Town Sanitation Division from 1971 through 1988 and the Supervisor of Sanitation from 1989 through 2009; Robert LeLand, an employee of Wainscott Sand & Gravel since 1987; Richard Thayer, Jr., a former employee at the mine from 1986 through 1987; and John Tintle. It is noted that such affidavits had been presented to the Chief Building Inspector as part of Sand Land's 2010 application for a certificate of occupancy. Also submitted to the Zoning Board by Sand Land was an affidavit of Mitchell Mezynieski and a copy of the 1962 mining agreement between Bridgehampton Road Races and Bridgehampton Sand & Gravel.

As relevant to the instant proceeding, the affidavit of Theodore Baranowski states that he worked as a machine operator at the sand and gravel mine from the 1950s until the early 1970s. It states that during the time he was employed at the mine, the property was continuously used to mine the land, produce stone, gravel, and grit, receive leaves and vegetation, and stockpile junk cars, tires and metals. It further states that, in addition to extracting sand and trucking it off site, the business operating on the property received truck loads of vegetative debris and metal waste six days a week, between the hours of 5:00 a.m. and midnight. Richard Leland's affidavit states that as an employee of the Sayre-Baldwin Farm, a 400-acre farm that raised crops and dairy cows, he regularly dumped truck loads of debris at the subject property from the mid-1950s to the mid-1960s. According to Leland's affidavit, storm debris, cinder blocks, brush, wood chips, [*5]and other materials gathered when conducting general clean-ups at the farm were dumped at the subject property. The affidavit of Charles Versaggi states that he visited the sand and gravel mine as a truck driver in the early 1970s; that he lived on the premises from approximately 1979 to 1988, when he was a shareholder of the company that owned and operated the mine at that time; and that he currently resides in a home relocated from the subject property to the corner of Millstone Road and Middle Line Highway. In his affidavit, Versaggi avers that he regularly went to the subject property in the 1970s to purchase "soil, sand, gravel, crushed stone, marl, grit and other related materials." He states that during the entire time he has been familiar with the subject property and the operation conducted on it, numerous pieces of heavy equipment have been utilized on site, and, between the hours of 7:00 a.m. to 5:00 p.m., Mondays through Saturdays, a steady stream of truck traffic has delivered stumps, leaves, yard waste, concrete and other debris to the subject property for a tipping fee, and has purchased and carried away "soil, sand, crushed stone, gravel, marl, grit, mulch, wood chips and related materials mined from or produced at the site."

Like Theodore Baranowski, Richard Leland and Charles Versaggi, Mitchell Mezynieski's contact with the subject property dates back to the 1960s, when he was an employee of his father's contracting company. Mezynieski's affidavit states that during the 1960s, his father's company was hired to rebuild and redevelop a 24-acre parcel of land on Millstone Road after the residence on it was destroyed by fire. The affidavit states that debris from the fire-damaged house, broken cement, brush, trees and other landscaping materials from the parcel were dumped at the mine in exchange for a tipping fee. It further states that since 1971, in connection with the operation of his own contracting company, Mezynieski has dumped stumps, brush and other clearing debris at the mine, and has purchased soil, sand, crushed stone, gravel and other related materials mined from or produced at the mine. Brian Gilbride's affidavit states that in 1971 he was hired by the Town of Southampton to work in the Sanitation Division, and that he was named the Town's Sanitation Supervisor in 1989 and remained in that position until 1996. It states that he has been familiar with the operation of the subject property since 1971, that during his entire time in the Sanitation Division the Town has dumped concrete, asphalt, stumps and yard waste having a diameter of six inches or larger at the property, that the Town paid tipping fees to dump waste at the property, and that "tens of thousands" of cubic yards of storm debris created by Hurricane Bob and other storms was dumped by the Town at the property. The affidavit of William Masterson, who was the Superintendent of Highways and Commissioner of Public Works for the Town from 1989 to 2009, states that during his entire term, the Town "on a continuous year-round basis has purchased sand and aggregates" for municipal use from Sand Land's property.

The affidavit of Richard Thayer states that he worked at the mine from January 1986 to December 1987, when his father was the sole owner of Bridgehampton Sand & Gravel and a part-owner of Sand Land. It states that local contractors regularly dumped leaves, stumps, yard waste, concrete, brick, asphalt pavement and other debris at the site, that such materials were used by Bridgehampton Sand & Gravel in connection with their DEC-approved reclamation activities on the property, and that "it was clear that prior owners and operators of the site had [*6]buried large amounts of leaves, stumps, yard waste, brush, concrete . . . and other debris at the site." Robert Leland avers in his affidavit that since he began his employment with Wainscott Sand & Gravel in 1987, the business has involved the mining of sand, the receipt of trees, leaves and other clearing debris, and the sale of sand, soil, mulch, wood chips, concrete blend and related materials mined from or processed on the land. He states that during the entire time he has worked at the property, he has observed leaves, stumps, brush and other such waste dumped at the site by local contractors in exchange for a tipping fee; that the land-clearing debris is converted into mulch and other shredded-wood products using grinders on the site; that he has observed the processing of leaves, stumps, yard waste, concrete, brick and other materials into soil, crushed stone, mulch, wood chips and other related products; and that the majority of shredded wood waste produced on site is recycled for use in the mine's reclamation activities, with the remaining wood-based products sold to and carted away from the property by local contractors.

In addition, the affidavits of John Tintle dated February 4, 2009 and May 11, 2009 explain the different operations conducted on Sand Land's property since the late 1980s. The February 2009 affidavit states, in part, that the business involves the mining of sand, the acceptance and processing of trees, stumps, yard waste, brush and other debris into soil, mulch and wood chips, and the sale of sand, soil, mulch, wood chips, concrete blend and other materials either mined from or processed on the land. It states that Tintle has observed such debris being dumped on the property by contractors and processed at the site, that the majority of the wood material processed on site is used for slope reclamation purposes, and that the balance of such processed material is sold to and carted away from the property by contractors. Tintle's affidavit also states that beginning in 1997, a seven-year excavation project was conducted on the site to remove thousands of yards of leaves, stumps, yard waste and other debris that had been buried over the years. It states that the material removed from the ground was screened and separated, and that the wood products were ground into mulch. Further, Tintle's affidavit explains that prior to 1990, leaves, brush and other vegetative materials regularly were buried in landfills and mines, where they would decompose over time, and that the enactment of laws requiring all landfills be closed by 1990 and prohibiting the burial of leaves, brush, stumps, yard waste and other clearing debris led to an increased volume of such debris brought by contractors to Sand Land's property for disposal. It explains that to keep up with the increased volume, Wainscott Sand & Gravel has made substantial investments over the years in heavy equipment, namely grinders, to quickly process the clearing debris brought to the property, and that the processed debris is primarily used for reclamation of the land. Moreover, Tintle's May 2009 affidavit states that the Town regularly purchases sand and aggregates for municipal uses and regularly dumps concrete, asphalt, stumps and yard waste on the subject property. It further states that the bulk of clearing debris brought to the site is used in reclamation activities, and that it would be cost prohibitive for Wainscott Sand & Gravel or any mine operator to have to separately purchase materials for reclamation activities.

By decision dated June 21, 2012, the Zoning Board granted the application challenging the Chief Building Inspector's determination that Sand Land was entitled to a certificate of [*7]occupancy permitting it to continue using the subject property to receive and process trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and to store, sell and deliver sand, mulch, topsoil and wood chips. In its decision, the Zoning Board held that Sand Land had the burden on the application appealing the Chief Building Inspector's determination of establishing that the alleged nonconforming uses at the sand and gravel mine preexisted the 1972 rezoning of the property from industrial to residential. It determined that the evidence in the record established the operation of the sand and gravel mine, including the storage, sale and delivery of sand, as a nonconforming use. It also determined that the record showed "the receipt of trees, brush, stumps, leaves and other clearing debris is a pre-existing accessory use to the mining operations on the premises."

However, the Zoning Board determined that "the processing of trees, brush, stumps, leaves and other clearing debris into topsoil and mulch," and the "storage, sale and delivery of mulch, topsoil and wood chips" were not established as preexisting uses, and that the Chief Building Inspector's finding that such activities were preexisting uses was "in error." It determined that, though they had direct knowledge of the operations occurring at the site during the 1950s and 1960s, the affidavits of Richard Leland, Theodore Baranowski and Mitchell Mezynieski "lack[ed] sufficient, persuasive evidence to establish, or provide information regarding, the alleged processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch," and failed to address "in any meaningful way, the storage, sale, and delivery of mulch, topsoil and wood chips." It found that, "[w]ithout any further corroborating evidence, or any objective evidence, [such] affidavits are simply insufficient to establish that the processing of trees, brush, stumps, leaves, and other clearing debris into topsoil or mulch, and the storage, sale, and delivery of mulch, topsoil and wood chips, existed on the premises prior to 1957."

Furthermore, the Zoning Board determined that the affidavits of Charles Versaggi and Brian Gilbride were insufficient to establish that the subject property was used for processing land-clearing debris and selling and delivering topsoil, mulch and wood chips before the rezoning in 1972, because they failed to discuss in detail the processing of trees, brush, stumps, leaves and other clearing debris, or the storage, sale and delivery of topsoil, mulch or wood chips, on the subject premises. It also found that, while Versaggi states in his affidavit that he personally purchased soil from the mine, and that during the entire time he was familiar with the property there was steady flow of truck traffic for the purpose of "dumping leaves, stumps, yard waste . . . and the purchasing and carrying away from the site of soil, sand, crushed stone, gravel, marl, grit, mulch, wood chips and related material," his affidavit was insufficient to meet Sand Land's burden, since he was not "intimately familiar with the operations on the site until 1979." The Zoning Board also expressed doubt about Gilbride's familiarity with the site, noting that he started his Town job in 1971. The Zoning Board concluded "there is no evidence to support a finding that the premises has been used for anything other than mining and the accessory receipt of various yard debris," and that the "processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and the storage, sale and delivery of mulch, topsoil, and wood chips" constitute "an impermissible expansion of the nonconforming mining operations." Granting the appeal, it determined the portions of the certificate of occupancy issued to Sand [*8]Land that recognize as preexisting uses the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and the storage, sale and delivery of sand, mulch, topsoil and wood chips, were in error and must be removed from the certificate.

Subsequently, Sand Land and Wainscott Sand & Gravel commenced this Article 78 proceeding for a judgment annulling the Zoning Board's determination that the certificate of occupancy for the subject property issued to Sand Land in June 2011 by the Town's Chief Building Inspector was improper insofar as permitted the processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and the storage, sale and delivery of mulch, topsoil, and wood chips as preexisting nonconforming uses. Sand Land and Wainscott Sand & Gravel assert the Zoning Board's decision that the evidence in the record established the mine received trees, stumps, brush, leaves and other vegetative debris as part of the business operated on the property prior to its rezoning from an industrial district to a residential district, but that such evidence did not sufficiently establish that it "processed" and sold such clearing debris, is "internally inconsistent" and ignores their unrefuted evidence regarding the use of the property over the past decades. The petitioners also argue that the processing of trees, brush, stumps, leaves and other clearing debris and the sale of topsoil, mulch and wood chips at the subject property at the property are, in fact, integral parts of the mine operation regulated by the DEC and, therefore, the Zoning Board's determination respecting such uses of the property constitutes an improper attempt by the Town to regulate mining and reclamation activities.

The court's role in reviewing an administrative decision is not to decide whether the agency's determination was correct or to substitute its judgment for that of the agency, but to ascertain whether there was a rational basis for the determination (see Matter of Sasso v Osgood, 86 NY2d 374, 633 NYS2d 259 [1995]; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 626 NYS2d 1 [1995]; Matter of Warder v Board of Regents of Univ. of State of NY, 53 NY2d 186, 440 NYS2d 875 [1981]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 356 NYS2d 833 [1974]). In the context of an Article 78 proceeding brought to review an administrative determination of a quasi-legislative, quasi-administrative body like a zoning board, a court may annul the determination only if it was arbitrary and capricious, affected by an error of law, or lacked a rational basis (see Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 570 NYS2d 474 [1991]; Matter of Pell v Board of Educ., 34 NY2d 222, 356 NYS2d 833; Matter of Cowan v Kern, 41 NY2d 591, 394 NYS2d 579 [1977]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 809 NYS2d 98 [2d Dept 2005]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ., 34 NY2d 222, 231, 356 NYS2d 833). Further, it is fundamental that when reviewing a determination an administrative agency alone is authorized to make, the court must judge the propriety of such determination on the grounds invoked by the agency; if the reasons relied on by the agency do not support the determination, the administrative determination must be overturned (Matter of National Fuel Distrib. Corp. v Public Serv. Commn. of the State of NY, 16 NY3d 360, 368, 922 NYS2d 224 [2011]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758, 570 NYS2d [*9]474; see Ignaczak v Ryan, 79 AD3d 881, 912 NYS2d 658 [2d Dept 2010]; Matter of Filipowski v Zoning Bd. of Appeals of Vil. of Greenwood Lake, 77 AD3d 831, 909 NYS2d 530 [2d Dept 2010]; Matter of Stone Landing Corp. v Board of Appeals of Vil. of Amityville, 5 AD3d 496, 773 NYS2d 103 [2d Dept 2004]).

A use of property that is inconsistent with the existing zoning scheme, but which was lawful prior to the zoning change, generally is constitutionally protected as a nonconforming use (see Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88, 97, 885 NYS2d 8 [2009]; Matter of Toys "R" Us v Silva, 89 NY2d 411, 417, 654 NYS2d 100 [1996]), and will be permitted to continue if enforcement of the existing zoning ordinance "would, by rendering valueless substantial improvements or business built up over the years, cause serious financial harm to the property owner" (People v Miller, 304 NY 105, 107, 106 NE2d 34 [1952]; see Matter of Harbison v City of Buffalo, 4 NY2d 553, 176 NYS2d 598 [1958]). Concomitantly, nonconforming uses are viewed as detrimental to zoning schemes, and public policy favors their restriction and eventual elimination (see Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison, 1 NY3d 561, 772 NYS2d 249 [2003]; Matter of Toys "R" Us v Silva, 89 NY2d 411, 654 NYS2d 100). Thus, the right to maintain a nonconforming use does not include the right to extend or enlarge such use (see Matter of Rudolph Steiner Fellowship Found. v De Luccia, 90 NY2d 453, 662 NYS2d 411 [1997]; Matter of McDonald v Zoning Bd. of Appeals of Town of Islip, 31 AD3d 642, 819 NYS2d 533 [2d Dept 2006]). A mere increase in the volume or intensity of a nonconforming use, however, does not constitute an impermissible expansion of such nonconforming use (Town of Clarkstown v M.R.O. Pump & Tank, Inc., 32 AD3d 925, 927, 822 NYS2d 576 [2d Dept 2006]; Incorporated Vil. of Laurel Hollow v Owen, 247 AD2d 585, 586, 669 NYS2d 222 [2d Dept 1998]; Matter of Syracuse Aggregate Corp. v Weise, 72 AD2d 254, 260, 424 NYS2d 556 [4th Dept], affd 51 NY2d 278, 434 NYS2d 150 [1980]; see Town of Ithaca v Hull, 174 AD2d 911, 571 NYS2d 609 [3d Dept 1991]). Similarly, modernizing equipment and introducing new kinds of machinery at a mining operation or other business does not amount to an expansion of use (Matter of Tartan Oil Corp. v Board of Zoning Appeals of Town of Brookhaven, 213 AD2d 486, 488, 623 NYS2d 902 [2d Dept 1995]; Matter of Syracuse Aggregate Corp. v Weise, 72 AD2d 254, 260, 424 NYS2d 556).

Here, the Zoning Board improperly placed the burden on Sand Land to establish that the certificate of occupancy issued to it in July 2011 was proper. As the proponents of the revocation of the certificate of occupancy issued to Sand Land, Phair, Gilman and Doggwiler had the burden at the hearing held by the Zoning Board to establish that the certificate of occupancy was improperly issued by the Chief Building Inspector (Matter of Letourneau v Town of Berne, 89 AD3d 1202, 1203, 931 NYS2d 810 [3d Dept 2011]; Matter of Haberman v Zoning Bd. of Appeals of Town of E. Hampton, 85 AD3d 1170, 1171, 926 NYS2d 165 [2d Dept 2011]; Matter of Hariri v Keller, 34 AD3d 585, 586, 826 NYS2d 310 [2d Dept 2006]). Contrary to the conclusory allegations by the attorney for Phair, Gilman and Doggwiler, the evidence presented to the Zoning Board failed to demonstrate the 2011 certificate of occupancy, permitting the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or [*10]mulch, and the storage, sale and delivery of sand, mulch, topsoil and wood chips as preexisting uses, was improperly issued to Sand Land (see Matter of Haberman v Zoning Bd. of Appeals of Town of E. Hampton, 85 AD3d 1170, 926 NYS2d 165). Significantly, Phair, Gilman and Doggwiler presented an aerial photograph and a report of Steven Kaplan to support their claim that no mining activity was conducted before 1966, and argued the absence of documentation with the Town or the DEC regarding the recycling of clearing debris and the sale of soil, mulch and wood chips on site prior to 1972 proved such activities were merely incidental to the operation of the mine when the rezoning occurred. However, conspicuously absent from their presentation at the hearing and from their voluminous submissions on the appeal is evidence refuting the affidavits submitted by Sand Land showing that the recycling of stumps, brush and other vegetation and the sale, storage and delivery of soil, mulch and wood chips has been an integral part of the mining and reclamation activities on the subject property since before the Town rezoned the area from industrial to residential use (cf. People v Miller, 304 NY 105, 106 NE 34; Matter of Watral v Scheyer, 223 AD2d 711, 637 NYS2d 431 [2d Dept 1996]).

Moreover, it was arbitrary and capricious of the Zoning Board to determine that the affidavits presented by Sand Land established the mine operation involved the receipt of trees, brush and other vegetative debris, but not the processing of such debris into compost, mulch and wood chips for reclamation or the storage, sale and delivery of excess topsoil, mulch and wood chips, because Charles Versaggi and Brian Gilbride, despite having direct, regular contact with the site, were not sufficiently "familiar" with the mining operation, and because their affidavits, which were not controverted, did not discuss "in detail" how the clearing debris actually was processed (see Matter of Straub v Modelewski, 56 AD3d 481, 865 NYS2d 920 [2d Dept 2008]; see also Matter of E & B Realty v Zoning Bd. of Appeals of Inc. Vil. of Roslyn, 275 AD2d 779, 713 NYS2d 744 [2d Dept 2000]). Further, it was irrational for the Zoning Board to find the uncontroverted affidavits Richard Leland, Theodore Baranowski and Mitchell Mezynieski were sufficient to show the receipt of brush and other clearing debris on the property prior to the change in zoning, but lacked "sufficient persuasive evidence" regarding the actual use or "processing" of such debris by the mining operation (see Matter of Tomich v Lowery, 94 AD3d 1134, 942 NYS2d 618 [2d Dept 2012]; Matter of Eger v Levine, 153 AD2d 998, 545 NYS2d 618 [3d Dept 1989]; cf. Town of Ithaca v Hull, 174 AD2d 911, 571 NYS2d 609). Similarly, it was arbitrary and capricious for the Zoning Board to discount statements in Versaggi's affidavit, based on his supposed lack of "intimate familiarity" with the mine operations before 1979, and in Mezynieski's affidavit, based on his alleged failure to address "in any meaningful way" the sale, storage and delivery of soil, mulch and wood chips, that the mining operation on the property prior to 1972 included the sale of soil, and instead to find the property was used before the rezoning for the sale, storage and delivery of sand, but not the sale, storage and delivery of soil. It also was irrational to conclude that the storage, sale and delivery of soil, extracted from the land as part of the mining operation and from which the sand is derived, were not accessory uses of the property. And, as the more restrictive CR-200 County Residence zone became effective in the area in 1972, it was arbitrary and capricious of the Zoning Board to find that Sand Land failed to present "objective evidence" or "corroborating evidence" that the "processing of trees, brush, stumps, leaves and other clearing debris . . . and the storage, sale and delivery of mulch, topsoil [*11]and wood chips" occurred on the premises prior to 1957.

Here, the uncontested evidence presented to the Zoning Board showed the multifaceted nature of the mining operation conducted on the property for more than 50 years necessarily involves the receipt of trees, brush and other clearing debris, the recycling or processing of the vegetative debris into mulch and wood chips for use in the reclamation of the land, and the storage, sale and delivery on site of excess soil, mulch and wood chips. As the Court of Appeals has explained, in contrast to other nonconforming uses "in which the land is merely incidental to the activities conducted upon it . . . quarrying contemplates the excavation and sale of the corpus of the land itself as a resource" (Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 285, 434 NYS2d 150 [1980][citations omitted]). Although testifying at the hearing that the mine operations are interfering with the use and enjoyment of their properties and the value of their homes, the neighbors failed to present evidence to the Zoning Board establishing that Sand Land's losses would be relatively slight or insubstantial if the nonconforming uses at issue in this proceeding were not permitted to continue (cf. People v Miller, 304 NY 105, 106 NE 34). And while the mine has increased the amount of trees, brush and other organic debris processed on the property during the past years, an increase in the volume of such activities does not constitute "an impermissible expansion" of the nonconforming nature of the property (see Town of Clarkstown v M.R.O. Pump & Tank, Inc., 32 AD3d 925, 822 NYS2d 576; Matter of Mooney v Board of Appeals of Town of Islip, 202 AD2d 674, 609 NYS2d 912 [2d Dept 1994]; Town of Gardiner v Blue Sky Entertainment Corp., 213 AD2d 790, 623 NYS2d 29 [3d Dept 1995]). Finally, Wainscott Sand & Gravel's use of modern heavy equipment to process the increased volume of clearing debris at the mine does not constitute an enlargement of the preexisting use (see Matter of Syracuse Aggregate Corp. v Weise, 72 AD2d 254, 424 NYS2d 556; see also Nemeth v K-Tooling, 100 AD3d 1271, 955 NYS2d 419 [3d Dept 2012]; Matter of Tartan Oil Corp. v Board of Zoning Appeals of Town of Brookhaven, 213 AD2d 486, 623 NYS2d 902).

Thus, the evidence in the record demonstrates the Zoning Board's findings that the nonconforming uses of the subject property at issue, namely the processing of trees, brush, stumps, leaves and other clearing debris, and the storage, sale and delivery of topsoil, mulch and wood chips, are not protected preexisting uses were irrational, arbitrary and capricious. Accordingly, the portions of the Zoning Board's June 21, 2012 determination that the receipt and processing of trees, brush, stumps, leaves and other clearing debris into topsoil or mulch, and the storage, sale and delivery of topsoil, mulch, topsoil and wood chips, are not

protected as preexisting nonconforming uses of the subject property are annulled, and the certificate of occupancy issued to Sand Land on July 19, 2011 is reinstated in its entirety.

Dated ____________________

J.S.C. [*12]