Posted by: Patricia Salkin | December 25, 2016

NY Appellate Court Finds Use of Petitioner’s Property as a Boarding House was not a Permitted Use

Petitioner applied to respondent City of Kingston Building Safety Division for a building permit to conduct certain renovations to an existing building on the property so that it could continue to operate as a boarding house. The Corporation Counsel informed petitioner that the property’s use as a boarding house was not a lawful preexisting nonconforming use and denied the petition. This case was an appeal from the judgment of the Supreme Court, which partially dismissed petitioner’s application to review the determination of respondent City of Kingston Zoning Board of Appeals.

The property at issue operated as a boarding house. In determining that this constituted a change from the prior nonconforming use in violation of the City’s zoning law, which expressly prohibited the substitution of nonconforming uses, the ZBA relied in part on the affidavit of a relative of the owner and operator of the property from the 1950s through the 1970s, a woman who also lived on the premises with her family. This woman stated that the property was operated as “Garry’s Nursing Home,” which was corroborated by other documents in the record. She further stated that nurses, assisted residents with dressing, bathing and shaving, and dispensed medication. Additionally, a 1958 compliance letter established that the property was subject to regulation under the Social Welfare Law, and advised Garry’s Nursing Home that it was required to provide around-the-clock coverage by a licensed nurse, maintain appropriate medical records and dispose of narcotics properly.

Accordingly, the court found there was sufficient evidence in the record for the ZBA to have rationally concluded that the property was no longer being used as a nursing home as it had been when the City’s zoning law first came into existence in 1963.

Tri-Serendipity, LLC v. City of Kingston, 2016 WL 7125406 (NYAD 3 Dept. 12/8/2016)


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