A veterinary clinic operating pursuant to a nonconforming use variance was shut down on September 1, 2006 by the City after 278 cats were discovered on the premises, many of whom were dead, injured and malnourished. In May 2007, the petitioner was found guilty of 28 violations of the State Agriculture and Markets Law.  In August 2007 the petitioner twice requested that the City Code Enforcement Director reinspect the premises so that the petitioner could reopen the clinic.  On August 28, 2007, since the reinspection had not taken place and the petitioner was concerned that the nonconforming use status would terminate pursuant to the local zoning code (which provided for the termination of nonconforming uses if not used/interrupted for a period of 12 months), the petitioner sought to compel the City Code Enforcement Director to immediately reinspect the premises and they requested  temporary relief to allow them to immediately reopen the clinic.  On August 31, 2007 the trial court denied their request for temporary relief and in October 2007 the trial court dismissed the petition. The Appellate Court noted in a footnote that on September 20, 2007, during the pendency of the proceeding, the petitioner was sentenced to a one-year conditional discharge which included the condition that it not operate any facility for the care and keeping of cats for one year.

                        

The Appellate Court concluded that since the trial court dismissed the petition, the petitioner’s request that it be allowed to temporarily continue to operate the clinic could no longer be realized and hence was moot. Further, as to the proceeding to compel the Code Enforcement Officer to reinspect the premises, the Court noted that pursuant to the zoning ordinance, a party aggrieved by a decision of the zoning officer may appeal to the zoning board of appeals.  The petitioner did not do so, failing to exhaust its administrative remedies. Therefore, the petitioner was foreclosed from raising the this issue before the appellate court.    

 

 

Purr Fect World, Inc. v. City of Cortland, 2008 WL 5351927 (N.Y.A.D. 3 Dept. 12/24/2008).

 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503208.pdf