NY Appellate Court Finds Property Did Not Lose Its Nonconforming Use Status Due to Inactivity

Petitioners appeal the denial of a permit to operate an automotive repair shop on their property. Even though the trial court had erred in transferring the proceeding pursuant to CPLR 7804(g), because the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, held pursuant to direction of law, the court elected to decide the matter on its merits.  The Putnam Valley Code provides, in relevant part, that a nonconforming use status is lost when such nonconforming use “is inactive or ceases … for a continuous period of more than two years.” The court found that contrary to the Zoning Board’s contention, the minimal extent of the nonconforming use in this case did not constitute either inactivity or cessation for the requisite time period, since there had been some automotive repair activity during the relevant time period. Thus, the determination of the Town of Putnam Valley Zoning Board of Appeals that the petitioner’s property had lost its nonconforming use status as an automotive repair shop did not have a rational basis, and was arbitrary and capricious.

TAC Peck Equities, Ltd. v Town of Putnam Zoning Board of Appeals, 2015 WL 1915498 (NYAD 2 Dept. 4/29/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D45151.pdf