Town of Brookhaven v. Parr Co. of Suffolk, Inc.
| Decision Date | 20 November 1973 |
| Citation | 350 N.Y.S.2d 529,76 Misc.2d 378 |
| Parties | TOWN OF BROOKHAVEN, Plaintiff, v. The PARR COMPANY OF SUFFOLK, INC., and Suffolk Meadows Quarter Horse Racing Assoc., Inc., et al., Defendants. |
| Court | New York Supreme Court |
Permut, Ashare & Russo, Patchogue, for plaintiff.
Patrick F. Adams, Bay Shore, for defendants Parr and Suffolk Meadows Quarter Horse Racing Assn., Louis J. Lefkowitz, Atty. Gen. (Mortimer Sattler, Asst. Atty. Gen., New York City, of counsel).
The Town of Brookhaven has commenced an action for a declaratory judgment upholding its right to require defendants, the Parr Company of Suffolk, Inc. ('Parr') and Suffolk Meadows Quarter Horse Racing Association, Inc. ('Suffolk Meadows') to obtain a building permit and certificate of occupancy from the Town. Parr is the owner of a large piece of land located in Yaphank which it has leased to Suffolk Meadows for the operation of a quarter horse race track. The latter defendant received a license from defendant The New York State Racing and Wagering Board, Division of Quarter Horse Racing ('Racing Board') to erect and operate the race track.
In October, 1972, Parr applied to the Town of Brookhaven for a change of zone to permit the race track use and the rezoning was approved the following March. Construction of the track including seating stands and various buildings was commenced by defendants without first obtaining a building permit for such construction.
The plaintiff Town of Brookhaven, alleging violation of the Town Law and the Code of the Town of Brookhaven, thereafter commenced the action and now moves for a preliminary injunction to enjoin further construction. All the defendants, by separate motion, move to dismiss the complaint for failure to state a cause of action. It is their contention that the construction and operation of a pari-mutuel quarter horse race track is regulated and controlled by the State of New York to the exclusion of any regulation by local government.
The statutory basis for quarter horse racing and gambling is found in Chapter 1023, Laws of 1970 (Unconsolidated Laws, Racing, Title 21, Article III). The legislature followed the earlier statutory scheme used to establish thoroughbred and harness racing in the State of New York. Thus a racing commission was established to control all aspects of quarter horse racing and betting including approval of construction plans for the race track, site selection and related work activity. (Sec. 8040--n.) Pertaining to construction, Section 8040--v reads:
Construction
Notwithstanding the foregoing provisions of any general or special statute of the state of New York or of any local law or ordinance of any municipality within the state, whether such provision or provisions be penal in character or otherwise, the provisions of this act and the rules and regulations and requirements of the quarter horse racing commission relating to the time when and place where or manner in which the quarter horse races shall be conducted in this state and the control of the grounds and structures erected or to be erected thereon upon and at which such racing is conducted and the activities conducted thereat and thereon in connection with any trial or contest of speed or power of endurance of quarter horses Shall be construed and deemed to be exclusive of and shall supersede any provisions of such other general or special statute, local law or ordinance in any wise relating thereto. (Emphasis added.)
While plaintiff argues that Section 8040--n does not preempt the local zoning power, examination of the New York Constitution and applicable case law compel the Court to disagree with the Town's position. Article I, Section 9 of the Constitution (subd. 1) has carved out an exception to the ban on gambling by permitting 'pari-mutuel betting on horse races as may be prescribed by the legislature and from which the state shall derive a reasonable revenue for the support of government.' The legislature has proceeded to implement and expand its interest in racing, primarily as a growing source of revenue by imposition of a tax on the gross wagers at and off the track. Thus it created a corporation to aid harness racing and provided for its funding out of the revenues collected by private racing associations. In upholding the program, the Court of Appeals gave a broad construction to the constitutional provision creating pari-mutuel betting and even permitted in...
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Wambat Realty Corp. v. State
...Adler v. Deegan, 251 N.Y. 467, 491, 167 N.E. 705, 713 (concurring opn. Cardozo, Ch. J.), Supra; Town of Brookhaven v. Parr Co. of Suffolk, 76 Misc.2d 378, 380--381, 350 N.Y.S.2d 529, 532, mod. on other grounds 47 A.D.2d 554, 363 N.Y.S.2d 640). Restated, the phrase 'property, affairs or gove......
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Wambat Realty Corp. v. State
...City of New York, 24 A.D.2d 151, 266 N.Y.S.2d 80, affd., 17 N.Y.2d 606, 268 N.Y.S.2d 564, 215 N.E.2d 684; Town of Brookhaven v. Parr Co. of Suffolk, 76 Misc.2d 378, 350 N.Y.S.2d 525, mod. on other grounds, 47 A.D.2d 554, 363 N.Y.S.2d 640; County of Orange v. Metropolitan Transp. Auth., 71 M......
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People v. Winner's Circle Flea Market, Inc.
...the bounds of its authority. In so holding, the court has determined that the defendants' reliance on Town of Brookhaven v. Parr Co. of Suffolk, Inc. (76 Misc.2d 378, 350 N.Y.S.2d 529, Modified on other grounds, 47 A.D.2d 554, 363 N.Y.S.2d 640) is misplaced. There, the court held that the l......