Woitaszek v. Town of Newstead

87 A.D.2d 1000, 450 N.Y.S.2d 130, 1982 N.Y. App. Div. LEXIS 16545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1982
• Status: Published

Opinion

Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: Appellant Town of Newstead had earlier granted a special use permit to the applicant County Line Stone Company for the operation of a stone quarry on certain of its lands zoned A (agricultural district), a use clearly permitted under the town zoning ordinance (§ VII, subd A, par 6) when approved by the board of appeals. The applicant subsequently acquired contiguous lands in the same zoning area and sought a special use permit to construct a driveway over this property to service the existing and operating quarry properties. Special Term annulled the permit on the ground that the proposed access road on the new parcel, if granted, would be a use incidental to the permitted quarrying operations on the existing parcel, in violation of a local zoning ordinance providing that an incidental use must be located on the same lot as the main use to which it is subordinate. This was error. The permit here was sought not for an accessory use to quarrying operations on the existing parcel but for an accessory use to such operations on the new parcel. There is no question that the applicant would be entitled to a permit for quarrying and all uses incidental thereto, including an access road, on the new parcel. That it seeks only a permit for one of the lesser uses included within the quarrying use — an access road — and not for the full quarrying use, is no reason to deny the application. (Appeal from judgment of Supreme Court, Erie County, Mattina, J. — art 78.) Present — Simons, J. P., Hancock, Jr., Doerr, Denman and Schnepp, JJ.