Posted by: Patricia Salkin | September 9, 2018

NY Appellate Court Reverses Use Variance Denial Based on Evidence of Pre-existing Nonconforming Use

This post was authored by Amy Lavine, Esq.

The property at issue in this case was a two-family home that the petitioner had rented out since buying the property in 1977. When he applied for a use variance in 2013 to continue the residential rental use, however, the town denied his request. The board of zoning appeals and the trial court affirmed the denial of his use variance, but the Appellate Division reversed on appeal and held that the variance denial was arbitrary and capricious. Although the property was no longer zoned for residential use, the court explained that it was nevertheless a legal nonconforming use of the property. The evidence demonstrated that the structure had been built in 1920, long before the enactment of zoning amendments in 1945 that prohibited residential property uses, and affidavits from neighbors and other community members sufficiently proved that the nonconforming use was established when those amendments were passed. On the other hand, the town failed to produce any evidence to rebut the nonconforming use, and as a result the court found no basis “to support the rationality of the Board’s determination denying the proposed use variance.”

Abbatiello v Town of North Hempstead Board of Zoning of Appeals, 2018 WL 3999743 (NYAD 2 Dept. 8/22/2018).



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