Posted by: Patricia Salkin | April 9, 2016

NY Appellate Court Upholds Dismissal of Petition to Annul the Issuance of a Special Use Permit Due to Nonconforming Use Status

Petitioner appealed from a judgment dismissing annulment of the issuance of a special use permit to respondent Mary Anna Morrow. For over 45 years, Morrow and her husband operated a home improvement business out of a building located on their residential property in the Village of Clifton Springs. Following the enactment of the Village of Clifton Springs Zoning Ordinance, the business became a “grandfathered” nonconforming business use. Following the death of Morrow’s husband in 2011, a former employee continued working out of the building until Morrow reached an agreement with another individual to permit him to operate an HVAC business out of the building. When Morrow applied for a building permit to make nonstructural changes to the building to accommodate the HVAC business, the Code Enforcement Officer denied the building permit on the ground that Morrow needed a special use permit. Morrow applied for a special use permit and respondent Village of Clifton Springs Zoning Board of Appeals granted it.

Here, Section 120–55 of the Zoning Ordinance provides that the ZBA may permit “any nonconforming use of a structure” to “be changed to another nonconforming use, provided that the ZBA shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use.” The court concluded that the ZBA’s determination that Morrow did not discontinue or abandon the nonconforming business use of the property was a reasonable application of section 120–55, and therefore rejected the petitioner’s contention that court below erred in refusing to disturb that determination. Lastly, although it was appropriate for the ZBA to request such records, Morrow’s failure to present records of ongoing business activity did not constitute a basis to set aside the ZBA’s determination.

Bounds v Village of Clifton, 2016 WL 1165353 (NYAD 4 Dept. 3/25/2016)


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