Agenda - Planning Commission - 05/07/2009

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Zoning Bulletin March 25, 2009 I Volume 3\ NO.6 o Amortization Period-Village ordinance says nonconforming use must terminate within one year I I I II II iI 11 II II iJ II Ii II II Ii Ii d II 'i II I! I' I: ,I 11 Ii Ii II I! !"\ Ii Ii ,: \)1 .r.~ ( ) " . J '----..-/ L) Landowner argues ordinance is iilValid and unconstitutional ,because the. amortization period' is'unreasonably short Citation: Suffolk Asphalt Supply, Inc. v. Board of Truste'es of Village of Westhampton Beac.h, 2009 WL 260959 (N. Y.A.D. 2 Dept., Feb. 3, 2009), ' NEW YORK (02/03/09)-Since 1945, an asphalt plant existed on cer- tain real property (the "Property") in the village. Under a 1985 amend- ment to the village's zoning code, the use of the Property as an asphalt plant was nonconforming. In 1994, Suffolk Asphalt Supply, Inc. ("Suffolk") acquired the Property. IIi 2000, the village adopted Local Law No. ~O (the "Ordinance"). The Ordinance provided an amortization period for the nonconforming use of the Property as an asphalt plant. l1nder the Ordillance, operation . of the asphali plant was to terminate within one year, unless Suffolk ap- plied for an extension, not to exceed five years. Suffolk applied for the extension, which was granted. , With its asphalt operation due to terminate by July 2, 2005, Suffolk brought a legal action. It asked the court to declare that the Ordinance was invalid and unconstitutionaL Among other things, Suffolk asserted that the amortization period in the Ordinance was unreasonably short. Eventually, Suffolk asked the court to find there were no 'material is- sues of fact and to issue summary judgment in its favor on the law alone. The lower court denied Suffolk's motion. Suffolk appealed. DECISION: -Affirmed. On appeal, the Supreme Court, Appellate Division explained that "[t] he validity of an amortization period depend[ed) on its reasonableness." An amortization period was presumed valid. Therefore, the burden was on Suffolk to overcome that presumption and show that the loss it suffered was so substantial that it outweighed the public benefit to be gained by the village's exercise of police power in enforcing the amorti- zation period. The court explained that whether an amortization period was reasonable depended on the facts of the particular case. Gener~lly, reasonableness of the amortization period would be determined by cer- tain facts, including: "the nature of the business 6Ithe property owner;" "the improvements erected on the land;" "the character of the neighbor- @ 2009. Thomson Reuters 11 41