Posted by: Patricia Salkin | August 29, 2008

NH Supreme Court Explains Difference Between Zoning Regulation and Licensing Regulation in Upholding Nonconforming Use Status of Junkyard

The New Hampshire Supreme Court upheld  the nonconforming use status of a junkyard that operated prior to the adoption of the Town’s comprehensive zoning ordinance which mandated that all motor vehicle junkyards abide by state law which, among other things, required junkyard owners to submit an application to the municipality of location containing certain information regarding the junkyard’s location, after which the municipal board would issue a license.  The Court concluded that the failure of the owner to obtain a license does not extinguish his vested right in the nonconforming use. The Court explained, that “unlike zoning which is ‘primarily concerned with uniformity of land use and stability of community growth,’ licensing regulations are generally concerned with proper operation or with limitation or distribution or outright suppression of operation.” Therefore, following the majority rule, the Court concluded that “failure to obtain a license designed to regulate an activity will not adversely affect the previously determined nonconforming status of the land upon which such activity is being conducted.”   


As to the argument that the junkyard owner expanded his nonconforming use, an activity not permitted under the applicable zoning ordinance, the Court found that the zoning board failed to make any findings of fact in this regard, and therefore the Court was unable to determine whether such action occurred. As a result, the Court remanded the matter for further review consistent with its opinion. 


The court also noted that “Nonconforming use status does not confer upon its holder an unfettered right to operate in circumvention of licensing laws.”



Guy v. Town of Temple, 2008 WL 3893211 (NH 8/21/2008 ).


The opinion can be accessed at:


  1. New York State Consolidated Laws, General Municipal Law, Article 6- PUBLIC HEALTH AND SAFETY § 136. Regulation of automobile junk yards. 13. Established junk yards. [..states that…] For the purposes of this section the location of junk yards already established shall be considered approved by the governing board of the municipality where located and the owner thereof deemed suitable for the issuance of a license. Within sixty days from the passage of this section [enacted in September 1965], however, the owner shall furnish the governing board the information as to location which is required in an application, together with the license fee, and the governing board shall issue him a license valid until the next April first, at which time such owner may apply for renewal as herein provided. Such owner shall comply with all other provisions of this section including the fencing requirements set forth in subdivision eleven of this section.

    The Town of Petersburgh, Rensselaer County, New York has never issued a Junk Yard License, and does not have a Zoning Ordinance or a Local Junk Yard Law. In the past, previous applications for junk yard licenses have been denied. In February 2008, the Town of Petersburgh received a complaint regarding an unlicensed junk yard that held approximately 60 unregistered/unlicensed and/or inoperable vehicles in a neighborhood that is predominantly residential. The Town’s Code Enforcement Officer issued a Notice of Violation, Order to Remedy under Consolidate Laws of New York, Executive Law, Article 18 – NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE ACT, Property Maintenance Code of New York § PM302.8 Motor vehicles. […which states that…] Except as otherwise provided for in statute or NY other regulations, two or more inoperative or unlicensed motor vehicles NY shall not be parked, kept or stored on any premises, and no vehicle shall at any time be in a state of major disassembly, disrepair, or in the process of being stripped or dismantled. Painting of vehicles is prohibited unless conducted inside an approved spray booth. Exception: A vehicle of any type is permitted to undergo major overhaul, including body work, provided that such work is performed inside a structure or similarly enclosed area designed and approved for such purposes.

    The property owner initially responded to the Notice of Violation, and after two, three months extension granted by the Code Enforcement Officer approximately half of the junk vehicles were removed. However, the Code Enforcement Officer eventually issued a Violation Appearance Ticket to the property owner for continued violations. In February 2009, the Town Justice dismissed the case because improper service (summons was not properly served).

    Since the case has been dismissed the Town has ceased enforcement on this violation, apparently because they have decided that they do not want to enforce other provisions of the Property Maintenance Code. In fact, the Town is now encouraging the property owner to apply for a junk yard license as a means to void or circumvent the existing issued violation.

    This property owner has operated an illegal junk yard for over 10 years. Since 2004, the amount of vehicles stored at the site has increased from approximately 15 to 60. In establishing an illegal junk yard, this property owner has evaded SEQRA review that would have scrutinized the operation and appropriateness of the location. Also, as an illegal junk yard operator, he has evaded and is non-compliant with applicable NYSDEC and NYSDMV regulations, many of which are felonies.

    Does the fact that a Notice of Violation was issued, and that there is a history of enforcement by the Town against this violator and degree of compliance on the part of the property owner, prevent the Town form issuing a Junk Yard license to this property owner?

    Can Article 78 be used to seek an injunction against the Town to prevent the issuance of a Junk Yard license in this case?

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