Posted by: Patricia Salkin | March 20, 2011

NY Appellate Court Holds Discontinued Nonconforming Use Extinguished and New Zoning Regulations Apply to Property

Plaintiff owns property in the Town and commenced an action for a declaratory judgment that the property is exempt from certain land use and building code regulations on the grounds that it was a pre-existing nonconforming use. In applying the Town Code which provides that nonconforming nonresidential uses “[s]hall not be reestablished if such use has been discontinued for one (1) year or more,” the Court found that the Town established that the property had been used for a nonconforming nonresidential use, and that such use had been discontinued for more than one year.  The plaintiff failed to raise any triable issue of fact and therefore the appellate court agreed with the court below that the land use regulations and building codes apply to the property in question. 

Specialized Realty Services, LLC v Town of Tuxedo, 915 N.Y.S.2d 133 (N.Y.A.D. 2 Dept. 1/18/2011) 

The opinion can be accessed at: http://www.courts.state.ny.us/Reporter/3dseries/2011/2011_00373.htm


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