| Town of Plattekill v Ace Motocross, Inc. |
| 2011 NY Slip Op 06177 [87 AD3d 788] |
| August 4, 2011 |
| Appellate Division, Third Department |
| Town of Plattekill, Respondent, v Ace Motocross, Inc., et al.,Appellants, et al., Defendant. |
—[*1] Jacobowitz & Gubits, L.L.P., Walden (David Gandin of counsel), for respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Platkin, J.), entered April 23,2010 in Ulster County, which, among other things, granted plaintiff's motion for summaryjudgment enjoining defendants from operating a commercial racetrack on their property.
Defendant Ace Motocross, Inc. operates a commercial motocross racetrack on propertyowned by defendant Anthony Kalamucki Jr., and located in the Town of Plattekill, UlsterCounty. In 2005, plaintiff enacted chapter 110 of its Municipal Code which, as relevant here,prohibits the commercial use of land for the operation of off-road motorized vehicles (seeTown of Plattekill Zoning Law § 110-54). Notably, the law includes a "grandfather"provision that allowed property owners who permitted such operations on their land to apply toplaintiff's Zoning Board of Appeals (hereinafter ZBA) within 90 days of the law's enactment for adetermination that such use was a preexisting nonconforming use prior to February 18, 1987(see Town of Plattekill Zoning Law § 110-54 [C] [2]). If so, the owner couldreceive authorization to continue the operations for up to 10 years (see Town of PlattekillZoning Law § 110-54 [C] [2]). Although defendants contend that the racetrack has been inoperation since before 1987, no application was made to the ZBA.
Beginning in 2006, plaintiff's Code Enforcement Officer began documenting defendants'[*2]continuing use of the property for commercial motocrossracing in violation of plaintiff's zoning law, and issued citations accordingly. When defendantsdid not cease their activity, plaintiff commenced this action seeking to permanently enjoin themfrom operating the racetrack. Defendants answered, asserting various affirmative defenses.Plaintiff moved for summary judgment, and Supreme Court partially granted the motion to theextent of dismissing the affirmative defenses.[FN*] Following discovery, plaintiff again moved for summary judgment, and defendants cross-movedto, among other things, amend their answer to include a counterclaim for a declaration that theracetrack is a preexisting nonconforming use and that defendants may continue to operate it for atleast 10 years from the passage of the statute. Defendants also sought to renew their opposition toso much of plaintiff's prior summary judgment motion as sought dismissal of defendants'selective enforcement defense. Supreme Court denied defendants' cross motion in its entirety andgranted summary judgment in plaintiff's favor, permanently enjoining defendants from operatinga commercial motocross track or allowing any other commercial use in violation of the zoninglaw. Ace Motocross and Kalamucki appeal, and we affirm.
Initially, we find no abuse of discretion in Supreme Court's denial of defendants' crossmotion to amend their answer, inasmuch as the proposed counterclaim is plainly lacking in merit(see Gersten-Hillman Agency, Inc. vHeyman, 68 AD3d 1284, 1289 [2009]; Constellation Bank v Binghamton Plaza,237 AD2d 854, 855 [1997]). It is well settled that a municipality may enact a zoning law thateliminates prior nonconforming uses in a "reasonable fashion" (Matter of 550 Halstead Corp. v Zoning Bd.of Appeals of Town/Vil. of Harrison, 1 NY3d 561, 562 [2003]; see Matter ofSyracuse Aggregate Corp. v Weise, 51 NY2d 278, 287 [1980]), such as by providing for an"amortization period" to allow a party to recoup expenditures by continuing the nonconforminguse for a designated period of time (see Village of Valatie v Smith, 83 NY2d 396, 400[1994]; Matter of Cioppa v Apostol, 301 AD2d 987, 989 [2003]). As noted above,plaintiff's zoning law includes such a provision (see Town of Plattkill Zoning Law§ 110-54 [C] [2]), under which defendants could have applied to the ZBA for adetermination of their status as a prior nonconforming use and authorization to continueoperations for up to 10 years—the precise relief sought in their proposed counterclaim.Nevertheless, they did not do so. Having failed to avail themselves of this remedy, they areforeclosed from seeking such relief through the courts (see Suffolk Outdoor Adv. Co. vHulse, 43 NY2d 483, 491 [1977], appeal dismissed 439 US 808 [1978]; see alsoWatergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]).
The foregoing conclusion is also fatal to defendants' argument that Supreme Court should nothave granted plaintiff summary judgment, inasmuch as that argument is premised entirely upontheir ability to assert their counterclaim. Further, we disagree with defendants' contention that,upon renewal, Supreme Court should have reversed its prior decision dismissing their selectiveenforcement defense. Defendants' attempt to demonstrate that the Walden Playboys MotorcycleClub racetrack is a similarly situated entity is not persuasive, nor have defendants shown thatplaintiff's application of its zoning law was affected by impermissible motive (see Bower Assoc. v Town of PleasantVal., 2 NY3d 617, 631 [2004]; Matter of Community Related Servs., Inc. v Carpenter-Palumbo, 84AD3d 1450, 1454-1455 [2011]).
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: In the interim, Supreme Courtdenied plaintiff's motion for a preliminary injunction.