Posted by: Patricia Salkin | October 31, 2010

NY Appellate Court Finds Abandonment of a Legal Nonconforming Use of Property for Gas Station and Repair Shop

The plaintiff, Emery Properties, filed a petition against the defendant, Patricia Baranello, for denial of a permit to build or install, with the purpose of converting space from an auto repair shop to a retail store.  The permit was denied by the Planning Department of Oyster Bay as certain procedures were not followed, and the defendant appealed and was denied once again by the Zoning Board of Appeals (ZBA).  Thereafter, the defendant commenced an action to annul the ZBA’s determination, which was denied. Upon appeal, the Appellate Division, Second Department, annulled the ZBA’s decision.  The Court of Appeals then reversed the Appellate Division’s determination and remanded for issues not yet considered.

The Appellate division stated that most of the remaining issues on remand were rendered academic by the Court of Appeals’ decision or were without merit. The only determination that the Appellate Division would make was whether the legal nonconforming use was abandoned or discontinued.  If abandoned or discontinued, the conversion of space would require a change in zone and a special use permit, not just the application for a permit to build or install. The property subject to this litigation was granted a use variance in 1949, and had upon it a gas station and repair shop.  The record shows that the use of the repair shop had been abandoned for more than a year. Since the use was abandoned, the initial order of the trial court was affirmed.

Emery Properties v. Baranello, 2010 WL 3785505 (NY A.D. 2 Dep’t  9/28/2010)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D28467.pdf.


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