Posted by: Patricia Salkin | November 9, 2014

NY Appellate Court Remands Matter to Trial Court to Determine Whether Nonconforming Use Existed for Family Fun Park

Respondent Jason Bonsignore submitted an application to respondent Planning Board of the Town of Dix for site plan approval to reopen and expand the “Seneca Grand Prix Family Fun Park,” which included miniature golf, bumper boats and a go-cart track. The Planning Board approved the site plan, finding that the project qualified as a nonconforming use under the zoning ordinance of respondent Town of Dix. Petitioners, adjacent property owners, commenced this CPLR article 78 proceeding seeking to annul the Planning Board’s approval, contending that the property did not qualify as a nonconforming use. Since an amusement park is no longer a principally permitted use, operation of an amusement park could continue only as a nonconforming use. The Planning Board determined “that there was no discontinuance of the nonconforming use for any period of 18 months” after the Zoning Code went into effect. By letter dated March 1, 2013, respondents’ counsel forwarded this determination to Supreme Court and requested a dismissal of the petition. As a result of this, the trial court dismissed the petition and further denied petitioners’ motion for reconsideration. Petitioners’ appeal ensued.

The core issue – whether the amusement park qualifies as a nonconforming use-speaks to the merits of the petition, and the facts were disputed. Accordingly, the court held that a formal motion for summary judgment by respondents was required and the absence of same deprived petitioners of an opportunity to be heard on the merits. The court interpreted the Zoning Code as providing for an abandonment whenever “any part or portion” of the nonconforming use has been discontinued for the 1½-year lapse period. Furthermore, because neither the Planning Board nor Supreme Court has addressed whether the nonconforming use was in existence at the time the Zoning Code was enacted, or whether the proposed expansion to add a motorcycle track qualifies as a nonconforming use as defined under Article VIII of the Zoning Code, the case was remitted to the trial court for further proceedings.

Laughlin v Pierce, 2014 WL 5285442 (NYAD 3 Dept. 10/16/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/517813.pdf


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