MatterofLaughlinvPierce ( 2014 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 16, 2014 517813
________________________________
In the Matter of BENJAMIN L.
LAUGHLIN et al.,
Appellants,
v
MEMORANDUM AND ORDER
MICHAEL PIERCE et al.,
Constituting the Town
Planning Board of the Town
of Dix, et al.,
Respondents,
et al.,
Respondent.
________________________________
Calendar Date: September 9, 2014
Before: Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.
__________
Scott D. Moore Law Office, PC, Elmira (Scott D. Moore of
counsel), for appellants.
Hiscock & Barclay, LLP, Elmira (Justin Salkin of counsel),
for Michael Pierce and others, respondents.
__________
Lynch, J.
Appeals (1) from a judgment of the Supreme Court (Sherman,
J.), entered March 21, 2013 in Schuyler County, which, in a
proceeding pursuant to CPLR article 78, granted a motion by
certain respondents to dismiss the petition against them, and (2)
from an order of said court, entered August 21, 2013 in Schuyler
County, which denied petitioners' motion for reconsideration.
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In November 2010, 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. In an introductory January 2010 letter to the
Planning Board, Bonsignore summarized the proposed use and
stated, as relevant here, "I understand the Park has not been
open for a couple years and the previous operators let its
appearance go." In May 2011, 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, who are adjacent property owners, commenced
this CPLR article 78 proceeding seeking to annul the Planning
Board's approval, contending that the property does not qualify
as a nonconforming use. In support of their petition,
petitioners submitted the affidavit of Mark Tota, whose family
operated a seasonal amusement park on the property from 1987 to
September 2006. According to Tota, the business ceased
operations in September 2006 and was sold to Bonsignore's
predecessor in title, William Goodwin, in October 2008, who in
turn sold the property to Bonsignore in November 2010.
Pertinent here, the Town adopted a Zoning Code in January
2007. Since an amusement park is no longer a principally
permitted use, operation of an amusement park could continue only
as a nonconforming use, i.e., "a use of property that is no
longer authorized due to rezoning, but lawfully existed prior to
the enactment of the existing zoning ordinance" (Matter of Toys R
Us v Silva, 89 NY2d 411, 417 [1996]). Article VIII of the Zoning
Code addresses nonconforming uses and specifies that "the lawful
use of land or buildings existing on [January 26, 2007, the
effective date] may be continued although such use . . . does not
conform" with the new law. The Zoning Code further provides that
"whenever a nonconforming use of land, premises, building or
structure, or any part or portion thereof, has been discontinued
for a period of [1½] years, such nonconforming use shall not be
reestablished, and all future uses shall be in conformity with"
the Zoning Code.
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In September 2011, the Town, the Planning Board and the
individual members of the Planning Board (hereinafter
collectively referred to as respondents) filed a pre-answer
motion to dismiss the petition pursuant to CPLR 7804 (f).
Supreme Court (Argetsinger, J.) denied the motion, observing
that, absent a variance, an evidentiary hearing would be
necessary to determine whether the project qualified as a
nonconforming use. Thereafter, by order to show cause,
petitioners applied for an injunction precluding Bonsignore's
operation of the park and an evidentiary hearing to address the
underlying nonconforming use issue. Respondents opposed the
application, relying on all prior submissions, as well as their
answer to the petition. Supreme Court (Sherman, J.) remanded the
matter to the Planning Board for a determination as to whether
"the nonconforming use of the subject premises was discontinued
for a period of [1½] years" prior to Bonsignore's site plan
application. As reflected in the minutes of its meeting on
January 22, 2013, 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.
Treating this application as a request to decide respondents'
initial motion to dismiss, Supreme Court dismissed the petition
and further denied petitioners' motion for reconsideration.
Petitioners' appeal ensued.
To begin, we reject respondents' contention that
petitioners' challenge is barred by the statute of limitations
for not having filed a separate CPLR article 78 proceeding
challenging the Planning Board's January 2013 determination. As
recited above, Supreme Court remanded the discontinuance issue to
the Planning Board and held the proceedings in abeyance pending a
response, as was the court's prerogative (see CPLR 7804 [e];
Siegel, NY Prac § 569 n 1). At that juncture, the only evidence
before the Planning Board relative to the nonconforming use issue
was Bonsignore's introductory letter, which actually indicated
that the prior nonconforming use had been discontinued. Although
the Planning Board made a cursory finding in its May 2011
approval that the project qualified as a nonconforming use,
Supreme Court properly determined that the record needed to be
further developed. Judicial review of an administrative
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determination is limited to the facts and record established
before the agency, which, in this case, includes both the May
2011 and January 2013 Planning Board determinations (compare
Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000]; Matter of
World Buddhist Ch'An Jing Ctr., Inc. v Schoeberl, 45 AD3d 947,
951 [2007]).
Next, we agree with petitioners' contention that Supreme
Court erred in dismissing the petition in response to the March
1, 2013 letter from respondents' counsel. Respondents maintain
that a formal motion was unnecessary given that Supreme Court had
revived their pre-answer motion to dismiss. This thesis fails
for several reasons. First, the pre-answer motion was made
pursuant to CPLR 7804 (f), which allows for objections in point
of law but "proscribes dismissal on the merits" (Matter of Nassau
BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of
Nassau County, 63 NY2d 100, 102 [1984]). The core issue here –
whether the amusement park qualifies as a nonconforming use –
speaks to the merits of the petition, and the facts were
disputed. Moreover, issue had been joined by the time
petitioners moved for an injunction and evidentiary hearing, and
respondents relied upon their answer in opposing the application,
but did not cross-move for relief. Supreme Court's order
remanding the case to the Planning Board does not provide any
indication that the court was endeavoring to revive respondents'
pre-answer motion to dismiss. To the contrary, that order
specified that the proceeding would be "held in abeyance, subject
to re-submission with a record of the Planning Board's final
determination." Significantly, respondents failed to provide the
court with a certified record of the Planning Board's proceedings
leading up to the January 2013 determination (CPLR 7804 [e]) and
omitted the Tota affidavit from the submissions to the court.
While we recognize that Supreme Court fashioned its March 2013
order as a determination of respondents' motion to dismiss, to do
so was in error. In our view, 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.
Given these circumstances, both the judgment and order must
be reversed and the matter remitted to Supreme Court for further
proceedings. In this regard, we note that Article VIII of the
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Zoning Code qualifies the discontinuance of a nonconforming use
by the phrase "or any part or portion thereof," indicating that
something less than a complete cessation of the nonconforming use
results in an abandonment (see Matter of Toys R Us v Silva, 89
NY2d at 419-422 [1996]; Matter of Estate of Cuomo v Rush, 273
AD2d 234, 234 [2000]). Moreover, inclusion of the 1½-year lapse
period renders the owner's intent irrelevant (see Matter of Toys
R Us v Silva, 89 NY2d at 421); Village of Waterford v Amna
Enters., Inc., 27 AD3d 1044, 1046 n [2006]). As set forth in the
notes of respondent Michael DeNardo, which were adopted by the
Planning Board, it appears that the Planning Board construed
"discontinued" under the Zoning Code as meaning "the business is
closed for all activities [that] the business was intended for,
public or private, and that the business is not maintained to the
standard or condition when it could open in a short or reasonable
period of time." This definition speaks to a complete cessation
of activities to sustain an abandonment, and even a mere
maintenance period as preserving the nonconforming use. The
Zoning Code states otherwise, and provides for an abandonment
whenever "any part or portion" of the nonconforming use has been
discontinued for the 1½-year lapse period. We also note that
neither the Planning Board nor Supreme Court has addressed
whether the nonconforming use was in existence at the time the
Zoning Code was enacted. Further, Supreme Court has yet to
address whether the proposed expansion to add a motorcycle track
qualifies as a nonconforming use as defined under Article VIII of
the Zoning Code.
Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur.
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ORDERED that the judgment and order are reversed, on the
law, with costs, and matter remitted to the Supreme Court for
further proceedings not inconsistent with this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court