Development

Questions of Fact Preclude Summary Judgment in Challenge to Amortization Period

Suffolk Asphalt Supply, Inc. v. Board of Trustees

NYLJ 2/9/09, p. 35, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's action for a judgment declaring a local law invalid, landowner appealed from the Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, concluding that in the absence of evidence about the amount landowner had invested in its business, questions of fact precluded grant of summary judgment invalidating an amortization period enacted by the village board of trustees.

Landowner's parcel in the Village of Westhampton Beach has been improved with an asphalt plant since 1945. In 1985, the village board enacted an ordinance that made the plant a non-conforming use. In 1994, current landowner acquired the parcel. In 2000, the village board enacted an ordinance terminating the right to maintain the non-conforming asphalt plant within one year unless landowner applied to the village zoning board of appeals (ZBA) for an extension, which would not exceed five years from the date of the 2000 enactment. Landowner immediately applied the the ZBA, and the ZBA, on May 19, 2005, granted the maximum extension permitted, directing landowner to terminate its asphalt operation by July 2, 2005. Meanwhile, landowner brought this action contending that the local law enacting the amortization period was unconstitutional because the period provided was unreasonably short. After the ZBA made its determination, landowner moved for summary judgment declaring the local law unconstitutional. Supreme Court denied the motion, and landowner appealed.

In affirming, the Appellate Division noted that the validity of an amortization period depends on its reasonableness ' which requires an evaluation of the nature of the use, and of the length of the amortization period in relation to the investment. In this case, landowner never submitted any evidence as to the amount of its investment, making it impossible to determine whether the period provided was reasonable and constitutional as to this landowner. The court also held that landowner could not establish that the amortization period was unconstitutional on its face unless landowner could also establish the ordinance was unconstitutional as applied to this landowner. As a result, Supreme Court properly denied landowner's summary judgment motion.

Questions of Fact Preclude Summary Judgment in Challenge to Amortization Period

Suffolk Asphalt Supply, Inc. v. Board of Trustees

NYLJ 2/9/09, p. 35, col. 6

AppDiv, Second Dept.

(memorandum opinion)

In landowner's action for a judgment declaring a local law invalid, landowner appealed from the Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, concluding that in the absence of evidence about the amount landowner had invested in its business, questions of fact precluded grant of summary judgment invalidating an amortization period enacted by the village board of trustees.

Landowner's parcel in the Village of Westhampton Beach has been improved with an asphalt plant since 1945. In 1985, the village board enacted an ordinance that made the plant a non-conforming use. In 1994, current landowner acquired the parcel. In 2000, the village board enacted an ordinance terminating the right to maintain the non-conforming asphalt plant within one year unless landowner applied to the village zoning board of appeals (ZBA) for an extension, which would not exceed five years from the date of the 2000 enactment. Landowner immediately applied the the ZBA, and the ZBA, on May 19, 2005, granted the maximum extension permitted, directing landowner to terminate its asphalt operation by July 2, 2005. Meanwhile, landowner brought this action contending that the local law enacting the amortization period was unconstitutional because the period provided was unreasonably short. After the ZBA made its determination, landowner moved for summary judgment declaring the local law unconstitutional. Supreme Court denied the motion, and landowner appealed.

In affirming, the Appellate Division noted that the validity of an amortization period depends on its reasonableness ' which requires an evaluation of the nature of the use, and of the length of the amortization period in relation to the investment. In this case, landowner never submitted any evidence as to the amount of its investment, making it impossible to determine whether the period provided was reasonable and constitutional as to this landowner. The court also held that landowner could not establish that the amortization period was unconstitutional on its face unless landowner could also establish the ordinance was unconstitutional as applied to this landowner. As a result, Supreme Court properly denied landowner's summary judgment motion.