Posted by: Patricia Salkin | December 14, 2016

NY Appellate Court Finds Owner Did Not Abandon Nonconforming Use

In 2012, respondent North High Realty Holdings, Inc. purchased real property in the Town of Queensbury, Warren County, situated within a commercial intensive zoning district that prohibited single-family residences. The property consisted of a commercial building and a single-family dwelling that had been permitted to be used as a residence because of its status as a lawful preexisting nonconforming use. After purchasing the property, North High sought a variance to enable it to continue to use the single-family dwelling as a residence. In response, respondent Town of Queensbury Zoning Administrator determined that a variance was unnecessary because North High had submitted evidence demonstrating that the single-family dwelling had been occupied as a residence without an interruption of more than 18 consecutive months, and the preexisting nonconforming use had therefore not been discontinued. The Supreme Court reversed, and Petitioner appealed the court’s holding that the preexisting nonconforming use was discontinued.

The court first noted that the language of the Town Code unambiguously set forth that the cessation of the preexisting nonconforming use, rather than the use itself, that must occur continuously and without interruption for 18 months. The court determined that the ZBA’s determination was neither irrational nor unreasonable, since conflicting evidence was put forth at public hearings as to whether the preexisting nonconforming use had been discontinued and abandoned. Specifically, evidence was presented indicating that the owner’s son stayed at the dwelling with the apparent intent to retain it as a residence with at least some degree of permanency. This finding provided evidence that a complete cessation of the use had not occurred. Accordingly, the court found no basis to disturb the ZBA’s determination, and reversed the holding of the state Supreme Court.

Lumberjack Pass Amusements, LLC v. Town of Queensbury, 2016 WL 6998838 (NYAD 3 Dept., 12/1/2016)

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