Challenge to a Local Law Requiring Discontinuance of a Nonconforming Use

In denying summary judgment to a property owner who challenged the amortization period during which a non-conforming use must be discontinued under a local law, the court held the property owner failed to demonstrate the law is invalid on its face. In the Matter of Suffolk Asphalt Supply, Inc. v. Board of Trustees of Village of Westhampton Beach, the court noted that “there remains a question of fact regarding whether the amortization period provided in the local law was reasonable and thus constitutional as applied to the plaintiff.”

The property owner purchased an asphalt plant which was a legal non-confirming use. The Village adopted the local law under challenge, which provided that such use must be discontinued within one year but that an additional five year extension of the use could be granted upon application to the zoning board of appeals. The owner sought and the zoning board of appeals granted an application extending the period during which the asphalt plant could be operated for the maximum five year additional term. At the same time the property owner brought this action seeking to declare the local law invalid and unconstitutional on the grounds, among others, that the amortization period was too short.

The court stated the general rule in determining the reasonableness of an amortization period holding that: “[w]hether an amortization period is reasonable is a question which must be answered in light of the facts of each particular case" (Modjeska Sign Studios v Berle, 43 NY2d 468, 479-480, appeal dismissed 439 US 809). "Reasonableness is determined by examining all the facts, including the length of the amortization period in relation to the investment and the nature of the use. The period of amortization will normally increase as the amount invested increases or if the amortization applies to a structure rather than a use" (Matter of Town of Islip v Caviglia, 73 NY2d 544, 561). Factors to be considered in determining reasonableness include "the nature of the business of the property owner, the improvements erected on the land, the character of the neighborhood, and the detriment caused the property owner" (Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563).”

Noting that determining the reasonableness of the amortization period relates to whether a property owner has an opportunity to recoup its investment, the court went on to say that the amoritization period does not have to be long enough to recoup the entire investment, only sufficiently long, so that the property owner does not suffer a “substantial loss” of investment. Here the court found that the property owner had failed to submit evidence of the amount of its investment in the property and therefore there is a question of fact which precludes summary judgment.

In a related action, the court upheld the decision of the Village zoning board of appeals in limiting the extension of the amortization period to the maximum five year term contained in the local law. The brief decision leaves unanswered why the zoning board could not have granted a variance from the local law permitting a longer period than the five year maximum contained in the law.