Jason Bonsignore submitted an application to Planning Board of the Town of Dix (“Planning Board”) for site plan approval to reopen and expand the “Seneca Grand Prix Family Fun Park,” including miniature golf, bumper boats and a go-cart track. The Planning Board approved the site plan, finding the project qualified as a nonconforming use under the zoning code. Petitioners, adjacent property owners, commenced an Article 78 proceeding to annul the Planning Board's approval, contending that the property did not qualify as a nonconforming use, a requirement as an amusement park was no longer principally permitted. 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.  In a letter dated March 1, 2013, respondents' counsel forwarded this determination to Supreme Court and moved to dismiss, which the court granted.  The court further denied petitioners' motion for reconsideration.

On appeal, the Appellate Division noted that CPLR 7804(f) allows objections in point of law but not dismissal on the merits.  It further found that whether the amusement park qualified as a nonconforming use went 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 also interpreted the Zoning Code as providing for an abandonment whenever “any part or portion” of the nonconforming use has been discontinued for the 18-month lapse period. As neither the Planning Board nor Supreme Court has addressed whether the nonconforming use was in existence at the time the Zoning Code was enacted, nor have they addressed whether the proposed expansion to add a motorcycle track qualifies as a nonconforming use, the Court remitted the case to the trial court for further proceedings.

The case was Laughlin v. Pierce, 121 A.D.3d 1249 (3d Dep’t 2014).