A decision by a Supreme Court judge may soon end the long and expensive zoning battle between the Town of Schoharie and Cobleskill Stone products on the proposed quarry expansion.
A trial had been scheduled for this month to determine whether the company had the right to quarry the expansion area near Rickard Hill Road but there has been a request for Judge Eugene Devine to make a "summary judgment" in the matter. A decision is expected in a month or two.
Cobleskill Stone representatives have claimed that they have "vested rights" to mine the area while Schoharie town officials said a 2005 zoning law prohibits mining in that area.
If the judge cannot render a decision, a trial will be set for October, according to attorney David Brennan, who is handling the case for the town.
This is not the first time the case has come before a court.
In May 2011, Judge Devine ruled that CSP had the right to mine the expansion area. Then in May 2012, the state appellate division overturned that decision.
Since the 2011 ruling, Mr. Brennan said, both the town and CSP have done extensive investigation into the case and many more facts have been developed.
There has been fact-finding and interviews done and the judge has been asked "to take everything into account," according to Schoharie town Supervisor Gene Milone.
There is no guarantee that the decision by the Judge, which may come in two parts, Mr. Brennan added, will end the issue.
Any decision can be appealed to the appellate court.
"I'm keeping my fingers crossed that this summary judgment will solve this all," Mr. Milone said.
The decision could be different from that in 2011 and if not, the town is prepared to take the case to the next level, Mr. Milone said.
"It remains to be seen," he added.
"We're not going to avoid going to trial if we have to," Councilman Richard Sherman said last month.
The company announced plans to expand the quarry in 2004. CSP purchased the additional 69 acres in 2000 and began geological studies to obtain a DEC mining permit four years later.
After many residents complained about the planned expansion, the town passed a law in August 2005 prohibiting mining as a permissible land use in the rural-agricultural district in which the expansion is located.
The company, Mr. Brennan argued last week, made a "cursory investment" in the property but that is not enough for vested rights in order to mine.
The company, he added, never applied for a permit from the town.
"You can't go from nothing to mining without going through the town," he said.
"They never had the unfettered right of permission of the town to mine that property."
The property, Mr. Milone added, should be for agricultural use only, which is what it is zoned for.
Company officials, he noted, never came to the town for a special use permit.
"They tried to circumvent the process."
Town officials are more confident that a decision will be rendered in their favor.
While the attorney thinks it will be ruled in the town's favor, "there's no guaranteeing it," Mr. Milone added.
One guarantee is that the court actions have been expensive for the town.
The town board budgeted $50,000 for legal expenses for the year and has already spent $50,229.
Board members budgeted $50,000 in 2012 and went about $13,000 over budget.
Despite the cost, the battle has to be fought, Mr. Milone said.
"We must win or our zoning laws mean nothing."
The issue has been before the state DEC for several years but has likely "been put on a shelf" until the land issue has been resolved, Mr. Brennan explained.
No settlement is in the works, he added.
John Holmes, in house counsel for Cobleskill Stone, said he does not comment on pending litigation.