Agenda - Planning Commission - 02/02/2012

Home

October 10, 2011 1 Volume 5 [ No. 19 Zoning Bulletin Nonconforming Use — Motocross Operator Fails to Apply for Grandfathered, Prior Nonconforming Use Status under Zoning Law Operator later asks court to declare it with such status Citation: Town of Plattekill v. Ace Motocross, Inc., 87 A.D.3d 788, 928 N. Y..S.2d 151 (3d Dep't 2011) NEW YORK This case addressed the issue of whether an oper- ator of a nonconforming use, who had failed to apply to the zon- ing commission for nonconforming use authorization following an amendment to the municipal code that eliminated the nonconform- ing use but allowed for an "amortization period" of operation, could subsequently seek nonconforming use status in court. The Background/Facts: Ace Motocross, Inc. ( "Ace ") operated a commercial motocross racetrack in the Town of Plattekill (the "Town"). In 2005, the Town enacted Chapter 110 of its Munici- pal Code. Part of that chapter prohibited the use of land for the op- eration of off -road motorized vehicles. The new law did include a "grandfather" provision, which allowed property owners who per- mitted such operations on their land to apply to the Town's Zoning Board of Appeals (the "ZBA ") within 90 days of the law's enact- ment for a determination that such use was a preexisting noncon- forming use prior to February 18, 1987. If so, the owner could re- ceive authorization to continue the nonconforming operations for up to 10 years. Ace, who claimed that its racetrack had been in operation since before 1987, did not apply to the ZBA for "grandfathered" prior nonconforming use status. In early 2006, the Town's Code Enforcement Officer issued cita- tions to Ace for its use of the property for commercial motocross rac- ing in violation of the zoning law. When Ace did not cease its ac- tivities, the Town filed an action in court. The Town asked the court to permanently enjoin Ace from operating the racetrack. The Town asked the court to find that there were no material issues of fact in dispute and to decide the matter in its favor on the law alone. The court granted the town's motion for summary judgment. The court permanently enjoined Ace from operating a commercial moto- cross track in violation of the zoning law. Ace appealed. It asked the court to declare its racetrack a grandfa- thered, prior nonconforming use. 10 © 201 1 Thomson Reuters