Posted by: Patricia Salkin | December 12, 2010

NY Appeals Court Upholds Zoning Board’s Finding that Lot Was Not A Legal Nonconforming Use

A property owner brought a proceeding to review a decision by the zoning board of appeals (ZBA), which determined that the property owned by petitioner was one building lot and not two. 

Petitioner acquired  real property pursuant to a deed in 1971.  Although the Petitioner paid separate real estate taxes for each lot, he argued that prior to 1928, the lots were one. Petitioner filed a request with the Building Inspector to declare that one of the lots as a non-conforming pre-existing building lot but this request was denied.  The ZBA affirmed the decision by the Building Inspector and petitioner commenced an article 78 proceeding.

Petitioner alleged that the ZBA’s decision was arbitrary and capricious.  The trial court denied the petition. On appeal, the court determined that the ZBA decision should be given deference.   Furthermore, when the 1928 deed purported to subdivide the parcel, the subdivision would not have been in compliance with the ordinance existing at the time.  As such, the ZBA’s decision upholding the zoning inspector’s determination that any division of the lot could not have made them a legal nonconforming use, was rational.

Rusciano v. Ross, 910 N.Y.S.2d 147 (2 Dept  2010)

The opinion can be accessed at: http://www.courts.state.ny.us/REPORTER/3dseries/2010/2010_07944.htm


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