Defendants Town Board of Ulster and the Town of Ulster (hereinafter referred to collectively as "the Town") move pursuant to CPLR § 3211 (a) (7) and CPLR § 3211 (a) (5) to dismiss the complaint in this action for a declaratory judgment. Plaintiff seeks a judgment setting aside and declaring null and void Town of Ulster Local Law No. 3 of 2004 (hereinafter referred to as the "Local Law"). Plaintiff Eddyville Corp. opposes the motion.

Plaintiff Eddyville Corporation owns a 370 acre parcel of property known as the "Eddyville [*2]Quarry" in the Town and County of Ulster which it purchased in 1986. At the time of purchase, the property was zoned as a "rural residential" (zoned as "R-80" and thereafter "R-60") district, where, pursuant to the Town of Ulster Zoning Law commercial mining was a permitted use allowable by a special use permit and subject to site plan review. In 2001, plaintiff applied to the Department of Environmental Conservation (DEC) for a mining permit to open a rock quarry operation on the property on an approximately 43.5 acre strip of land which had never been previously mined. It is not disputed that a previous mine had been located on a different tax parcel of plaintiff's property, but mining operations had ceased in the 1970's.

On July 30, 2004, the Town enacted Local Law No. 3 which amended its zoning law. As is relevant here, Local Law No. 3 prohibited mining on property zoned as "R-60." Mining continues to be permitted in zones designated as "HC," "RC," "OM," and "I" pursuant to a special use permit and site plan approval by the Town. At some point after the enactment of the mining prohibition, plaintiff withdrew its application for a permit.

On July 2, 2010, plaintiff commenced the instant declaratory judgment action seeking to have Local Law No. 3 declared null and void. In its summons and complaint, plaintiff alleges (1) that Local Law No. 3 is inconsistent with the 1969-1970 Comprehensive Development Plan for the Town of Ulster; (2) the law is an unconstitutional regulatory taking of plaintiff's property; (3) plaintiff has secure vested rights to mine its property as a pre-existing non-confirming use; and (4) the law it is preempted by the New York's Mined Land Reclamation Law (MLRL).

The Town argues that there is no inconsistency between Local Law No. 3 and the Town of Ulster's current comprehensive plan, and that the plan in place at the time of it's enactment was not in fact a comprehensive development plan as contemplated by Town Law §272. As the Town enacted a new Comprehensive Development Plan on July 2, 2007, plaintiff's argument is moot. Further, the Town argues that plaintiff has failed to establish a regulatory taking, or that it has any vested rights to mine this property. New York State's MLRL does not apply to this local ordinance, as MLRL does not preempt a town's authority to determine that mining should not be a permitted use of its land. Defendant also argues that because Plaintiff has failed to exhaust it's administrative remedies, it is barred from seeking judicial relief.

In the context of a motion to dismiss under CPLR 3211, the court must afford the pleadings a liberal construction, treat the allegations of the complaint as true and provide plaintiff every possible inference (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11). Allegations which consist of bare legal conclusions, however, are not entitled to such consideration, nor are inherently incredible factual claims or claims clearly contradicted by documentary evidence (Biondi v Beekman Hill House Apartment Corp., 257 AD2d 76). When the moving party offers evidentiary material on a motion to dismiss, the court is not required to presume the truth of the matters, but rather to determine if plaintiff has a cause of action, not whether he or she has stated one (Meyer v. Giunta, 262 AD2d 463).

It is well-established that local zoning laws, as legislative acts, are vested with a strong presumption of constitutionality, and courts are required to assume that the town acted in good faith (Golden v Planning Board of Town of Rampapo, 30 NY2d 359). Plaintiff bears the heavy burden of proving that the amendment is unreasonable and arbitrary (Matter of the Town of Bedford v Village of Mount Kisco, 33 NY2d 178; Rossi v Town Board of the Town of Ballston, 49 AD3d 1138). Further, it is well-established that in the event that a town's original comprehensive plan [*3]requires amendment because of the community's change and growth, Town Law §263 permits the enactment of a local law which is calculated to benefit the community as a whole (Asian Americans for Equality v Koch, 72 NY2d 121).

In order to allege, as plaintiff has in this case, that an amendment to the zoning ordinance constitutes a regulatory taking and is thereby unconstitutional, it is incumbent upon plaintiff to demonstrate that the change is not part of a well-considered and comprehensive plan calculated to serve the general welfare of the community (Collard v Incorporated Village of Flower Hill, 52 NY2d 594). Plaintiff bears the burden of demonstrating that the amendment does not substantially advance a legitimate town interest, and or that the ordinance denies an owner the only economically viable use of his land (Bonnie Briar Syndicate, Inc. v Town of Mamaroneck, 94 NY2d 96).

A party seeking to overcome a restrictive zoning ordinance must demonstrate that the property was indeed used for a nonconforming purpose, as distinguished from a mere contemplated use, at the time the zoning ordinance became effective (Jones v Town of Carroll, 15 NY3d 139). Where only a portion of the parcel was used for the non-conforming use, a demonstration must be made that the entire parcel is uniquely adaptable for this use and that the landowner took specific actions constituting an overt manifestation of its intent to utilize the property for the ascribed purpose (Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 55 AD3d 1228).

It is well established that New York Mined Land Reclamation Law (MLRL) does not withdraw from municipalities the authority to enact zoning ordinances which regulate general land use even though they may have an incidental effect on mining (Gernatt Asphalt Products, Inc. v Town of Sardinia, 87 NY2d 688; ECL §23-2703). A local law which affects only the location of mining activity does not violate the provisions of the MLRL (Troy Sand and Gravel Co., Inc. v Town of Nassau, 18 Misc 3d 1130(A) [NY Sup., 2008]).

The Town's motion for dismissal of the complaint must be granted. Plaintiff has no cause of action with respect to its argument that Local Law No. 3 is in violation of the comprehensive development plan adopted by the Town. Given that the 1969-1970 comprehensive development plan was not incorporated in the subsequent zoning ordinance, it is the zoning laws which must be looked to for evidence of the planning and goals of the community (Nicklin-McKay v Town of Marlborough Planning Board, 14 AD3d 858). A review of the changes to the zoning ordinance in the Town of Ulster reflect the community's goal of preserving the area encompassing plaintiff's property from the negative impacts associated with mining.

Plaintiff has failed to overcome the presumed validity of the amendment, having offered only the bare legal conclusions that Local Law 3 does not comport with the 1969-1970 comprehensive plan. Further, the earlier comprehensive plan has been superceded by a new plan adopted by the Town on July 2, 2007, and it is this new plan that is the best evidence of the planning and development goals of this community.

Plaintiffs's argument that its property has been subjected to a regulatory taking is likewise without merit. Although Plaintiff alleges that it "fully intended" to mine the property that it purchased in 1986, and that "mining was conducted on the property throughout the 20th century", these allegations in no way support plaintiff's contention that it has vested rights to mine this property. Further, without vested rights to mine, and without a showing that a non-conforming use of the property existed at the time of the enactment of Local Law, plaintiff has no cause of action for an unconstitutional regulatory taking. Plaintiff purchased the property in 1986, does not allege that [*4]at the time of the purchase the property was being mined, withdrew it's application for special use permit to mine the property, inexplicably failed to assert its rights or seek judicial intervention at the time the law was enacted, and waited until 2010 to bring this action.

The plaintiff's argument that the local law is in derogation of New York's MLRL

The Court has reviewed the remaining contentions and finds them without merit or unnecessary in light of its findings as set forth above.

Accordingly, defendants' motion is granted without costs and the complaint is dismissed.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

SO ORDERED.

ENTER.

January 7, 2011