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Schoharie mine loses round in legal battle

Court: Company must follow land-use law

Wednesday, July 31, 2013
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— A mining company’s fight to expand suffered a defeat this week with a state Supreme Court decision.

Cobleskill Stone Products and the town of Schoharie have been embroiled in legal action since 2005 after town zoning changes banned mining on land Cobleskill Stone sought to use.

The company applied to the state to pull rock from 69 acres near its 87-acre Schoharie mine off Rickard Hill Road — a goal that clashed with zoning changes Schoharie enacted not long after learning of the company’s intentions.

As it turns out, provisions of the town’s 38-year-old zoning ordinance were key to local officials’ goal of staving off more mining, at least temporarily, on the parcel situated not far from Schoharie Central School classrooms.

According to the decision, Cobleskill Stone Products never applied for a special-use permit under the town’s 1975 ordinance, so the company can’t prove it had a vested right in mining the nearby property.

The case initially was decided in Cobleskill Stone’s favor, but last summer, the Appellate Division of state Supreme Court overturned a lower court ruling that stated the company had a “vested right” to mine the additional acreage. The Appellate Division then sent the matter back to state Supreme Court, ruling issues of fact remained in determining whether Cobleskill Stone’s use of the property could be grandfathered in.

According to the decision issued Monday by Supreme Court Justice Eugene P. Devine, the town ultimately showed the mining company does not, in fact, have any vested right to mine that property.

Attorneys on both sides said Wednesday the town’s victory is limited — it relates to one of eight legal claims Cobleskill Stone is using in its fight to expand the mine.

Schoharie town Supervisor Gene Milone sees the decision as a major victory.

“They do not have a vested right to mine there, and they have to abide by our land-use laws,” Milone said.

Milone said he and other town officials have faced criticism for fighting a monied, industry giant in court, but he believes this week’s victory shows the efforts are warranted.

“We’re duty bound to protect what the residents of this community have voted on and put in place,” Milone said.

Cobleskill Stone Products is in the process of filing papers to argue its other claims, according to the company’s attorney, Rosemary Stack of Syracuse. Primary among them is the claim that the town’s 2005 zoning changes — which banned mining altogether on the property in question — were not enacted properly.

Stack said the company will also appeal Devine’s ruling.

Though the ruling on vested rights can be seen as a victory, the town’s attorney, David Brennan, admitted, “It’s not over with.”

Brennan said he’s in the process of reviewing papers Cobleskill Stone submitted in the remaining causes of action. In general, those claims allege Schoharie’s adoption of the 2005 zoning law was defective, Brennan said.

“What remains at issue is whether the 2005 zoning law was adopted properly,” Brennan said.

But for now, Brennan said mining can not go forward on the additional parcel.

“This is a significant victory in that the court agrees that the town does have land-use control over this piece of property,” Brennan said.

 
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