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In 1994, the Plaintiff acquired property that included an asphalt plant that had been in existence since 1945.  In 1985, the Village Board of Trustees amended the zoning code making the use of the property for an asphalt plant nonconforming.  In 2000, the Board of Trustees adopted a local law to amortize the nonconforming asphalt plant, calling for the use to terminate within one year unless the plaintiff applied to the zoning board of appeals for an extension not to exceed five years from the date of the adoption of the amortization local law.  The Plaintiff applied for an extension and the maximum extension allowed for under the local law was granted, requiring the termination of the asphalt operation by July 2, 2005.

                       

The Plaintiff also challenged the local law as invalid and unconstitutional, arguing that the amortization period was unreasonably short.  The appellate court acknowledged that there is no fixed formula in New York to determine what constitutes a reasonable amortization period, rather the court said that the local law will be presumed valid, and the owner carries the burden of demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the amortization local law. To determine reasonableness, courts will make a fact specific inquiry and consider the length of the amortization period in relation to the investment and the nature of the use.  Improvements made to the property, the character of the neighborhood, and the detriment caused to the property owner will also be considered.  With respect to ability to recoup investment, the court explained that while this will factor into a reasonableness  determination, an owner is not guaranteed to recoup the full cost of the investment, but the amortization period should not be so short that it would result in a substantial loss.

 

Since the plaintiff did not submit any evidence as to the amount it actually invested in the business, the court said a question of fact remained as to whether the amortization period set forth in the local law is reasonable and constitutional as applied to the plaintiff.  The plaintiff’s motion for summary judgment was therefore denied.          

 

Suffolk Asphalt Supply, Inc. v. Board of Trustees of Village of Westhampton, 2009 WL 260959 (N.Y.A.D. 2 Dept. 2/3/2009).

 

The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_00675.htm