Posted by: Patricia Salkin | June 13, 2015

NY Appellate Court Affirms Finding of No Entitlement to Nonconforming Use Status Since Prior Use was Discontinued

Plaintiff sought review a determination of the Zoning Board of Appeals that denied the petitioner’s appeal of a Code Enforcement Appearance Ticket issued by the respondent Town Building Inspector. The court below denied the petition and dismissed the proceeding and plaintiff appealed.

Contrary to the plaintiff’s contention, the court found the plaintiff failed to establish that its use of the subject property as a maintenance garage and truck storage facility was a preexisting nonconforming use which existed at the time of the enactment of the Town of Mount Pleasant Zoning Code in 1928, and that it continued uninterrupted thereafter except for a period of one year or less. Here, the Zoning Board of Appeals of the Town of Mount Pleasant determined that a use variance issued in 1931 to a prior owner limited the subject property to a specific use, a sand and gravel operation, which was discontinued in or around 1950. The court determined petitioner’s subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. Finally, the contention that the defendants were equitably estopped from prohibiting the plaintiff from operating a maintenance garage and truck storage facility on the subject lot was likewise found to be without merit, since the evidence submitted by the petitioner did not establish that there were “exceptional circumstances” involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision. Accordingly, the court affirmed the Supreme Court’s denial of the petition and dismissal of the proceeding on the merits.

Bradhurst Site Construction Corp. v Zoning Board of Appeals, Town of Mount Pleasant, 2015 WL 2215441 (NYAD 2 Dept. 5/13/2015)


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