Opinion
October 24, 1967
Appeal from a judgment of the Supreme Court in favor of plaintiff, entered in Ulster County upon a decision of the court at a Trial Term, which enjoined defendant "from using [its] premises as and for a go-cart raceway". The use thus restrained was found to be in violation of a town zoning ordinance enacted November 14, 1960, effective January 1, 1961, the premises being in an agricultural zone. Defendant asserts that the ordinance is inapplicable to its improvement, which was commenced before and completed after the effective date, under the rule which holds regulations of that nature inoperative when work of a "substantial character" in construction of the improvement has been commenced prior to the enactment. ( People v. Miller, 304 N.Y. 105, 109.) Under the same authority, however, "the enforcement of a zoning regulation against a prior nonconforming use will be sustained where the resulting loss to the owner is relatively slight and insubstantial" (p. 108). In the case before us the trial court was completely warranted in finding, as it did, that "defendant's predecessor prior to the enactment of the ordinance expended the sum of $62.00 and the sum of $425.00 for work performed on the premises for the purpose of readying the premises for a go-cart raceway operation which sum represents a small percentage of the final investment"; and in finding, further, that defendant failed to sustain the burden of proof with respect to its defenses that the operation of the go-cart raceway (which opened August 12, 1961) "was an existing non-conforming use at the time of the adoption of the ordinance" and that the raceway was "Substantially completed prior to the enactment of the Zoning Ordinance." As against the small amount of $487 found by the trial court, as above noted, the defendant claimed in its answer and bill of particulars that construction and other work was commenced, or in some instances contracted for but not commenced, prior to the enactment of the ordinance, at great cost, the total cost of the improvement, incurred before and after the date thereof, exceeding $33,000 when the facilities were completed in August, 1961. The trial court was clearly justified, however, in declining to credit defendant's proof, and in thus rejecting, as it obviously did, evidence of bills rendered by, and alleged oral construction contracts made with the individuals who organized the corporation and who were to be paid, in whole or in part, by the issuance of stock. The court's conclusion was strongly fortified by the testimony of a witness residing about one fourth of a mile from the premises that in February, 1961 none of the improvements testified to (and which, in fact, were observed by him when subsequently constructed) had then been made and that there had then been performed only the relatively inconsequential work of cutting brush and grading a rough road, and of coming through with a bulldozer which "pushed the woods out of the way" and "shoved this [stone] wall over". Clearly, any loss on account of this minimal expenditure of money and effort was "relatively slight and insubstantial" and insufficient to stay the enforcement of the zoning regulation. ( People v. Miller, 304 N.Y. 105, 108, supra.) Judgment affirmed, with costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.