The petitioners own and operate out of their home in a residential district “Angels’ Gate,” a hospice and rehabilitation center for approximately 200 terminally ill and disabled animals. Following the issuance of a notice of violation, the petitioners applied to the zoning board of appeals for a certification of existing use on the ground that the animal hospice was a preexisting nonconforming use. Their application was denied, and an appeal ensured. The trial court denied the Town’s motion to dismiss.
The appeals court found that the trial court improperly substituted its judgment for that of the zoning board after the board rationally concluded that the animal hospice did not constitute a customary, accessory use nor was it a lawful preexisting nonconforming use. The Court noted that the zoning board relied on Table of Use Regulations in the Town’s zoning ordinance which both expressly prohibited animal hospitals, veterinarians and kennels in the residential district, and further the ordinance provided that any uses not specifically listed were not permitted in the district (and an animal hospice was not specifically listed). Since the existing use of the land was commenced and maintained in violation of zoning ordinance, the petitioners cannot claim legal nonconforming use status. Further, the fact that the petitioners had maintained the use for 13 years prior to the notice of violation did not prevent the zoning board from enforcing the code now.
Marino v. Town of Smithtown, 2009 WL 1016174 (N.Y.A.D. 2d Dept. 4/14/2009).
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2009/2009_03001.htm
