New York Law Review

Tag: Nonconforming Use

  • Jones v. Town of Carroll, 15 N.Y.3d 141 (2010): Establishing Vested Rights for Landfill Expansion

    Jones v. Town of Carroll, 15 N.Y.3d 141 (2010)

    A landowner with a pre-existing, permitted landfill operation has a vested right to expand that operation on the entire parcel, even if only a portion was actively used before a restrictive zoning ordinance was enacted, provided they demonstrate an intent to use the entire parcel for that purpose.

    Summary

    Donald and Carol Jones were granted a special use variance in 1989 to operate a construction and demolition (C&D) landfill on their 50-acre property. They obtained a DEC permit for a small portion of the land. In 2005, the Town of Carroll enacted a zoning law restricting landfill expansion. The Joneses sued, arguing their prior variance established a right to use the entire parcel. The New York Court of Appeals held that because landfill operations are akin to mining, where the land itself is a resource, the Joneses had a vested right to use the entire property as a landfill, contingent upon continued DEC approval, as their actions demonstrated an intent to use the whole parcel for that purpose before the restrictive zoning law was enacted. The 2005 local law could not extinguish their legal right.

    Facts

    In 1984, Donald and Carol Jones purchased 50 acres in the Town of Carroll. In 1989, the Town granted them a special use variance for a C&D landfill on the entire property, subject to DEC regulation. Subsequently, the Joneses obtained a DEC permit to operate the landfill on a portion of the land (initially two acres, later expanded to three). The landfill operated as an active business. The Joneses dedicated areas around the landfill for related purposes, purchased heavy equipment, employed a dozen people, developed expansion plans, and discussed future operations with investors.

    Procedural History

    In 2005, the Town enacted a zoning law restricting landfill expansion. The Joneses sued, seeking a declaration that the new law did not apply to their property. Supreme Court initially granted summary judgment to the Joneses. The Appellate Division modified, denying summary judgment and vacating the declaration, finding the law applicable since the DEC permit covered only three acres and the remaining acreage was merely a contemplated future expansion. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a landowner with a special use variance for a landfill on their entire property, but with a DEC permit covering only a portion, has a vested right to utilize the entire property for landfill operations, thereby precluding the application of a subsequently enacted zoning law restricting landfill expansion.

    Holding

    Yes, because the operation of a landfill is similar to mining, where the land itself is a resource, and the landowners demonstrated an intent to use the entire parcel for that purpose before the restrictive zoning law was enacted.

    Court’s Reasoning

    The Court of Appeals relied on its precedents in Syracuse Aggregate Corp. v. Weise, Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, and Glacial Aggregates LLC v. Town of Yorkshire, which addressed vested rights in mining operations. The Court extended the rationale of those cases to landfills, noting that landfills, like mines, involve the consumption of the land itself. The Court reasoned that landowners can reasonably be expected to hold land in reserve for future landfill expansion. The court stated, “As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it…the use of property as a landfill, like a mine, is unique because it necessarily envisions that the land itself is a resource that will be consumed over time.”

    The Court emphasized that the Town had previously acknowledged the suitability of the entire parcel for landfill use by granting the variance. The Joneses’ actions, such as purchasing equipment and developing expansion plans, further demonstrated their intent to use the entire property for landfill operations. The court concluded that limiting the vested right to the area covered by the DEC permit would be unreasonable. “The fact that the DEC permit covered only a limited area is not determinative of plaintiffs’ rights over the remaining 47 acres of the parcel… Instead, the factors to examine are whether the operation of a C & D landfill was a lawful use on the property prior to the enactment of the 2005 zoning law and whether plaintiffs’ activities before that time manifested an intent to utilize all of their property in a manner consistent with that purpose.”

  • Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127 (2010): Establishing Vested Rights and Nonconforming Uses in Zoning Law

    Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127 (2010)

    A property owner acquires a vested right to continue a prior nonconforming use when, in reliance on local permission, they make substantial changes or incur significant expenses, even if a zoning law is subsequently enacted.

    Summary

    Glacial Aggregates sought to mine sand and gravel in a town with no zoning laws. After obtaining a DEC mining permit and investing substantially in preparations, the town enacted a zoning law requiring a special use permit for mining. The town initially acknowledged Glacial’s right to mine but later reversed its position. Glacial sued, claiming a vested right and prior nonconforming use. The Court of Appeals held that the jury could reasonably find Glacial had a vested right and a prior nonconforming use, considering Glacial’s significant investment and preparatory actions taken before the zoning law’s enactment. The case highlights how municipalities cannot retroactively impair vested rights without due process.

    Facts

    Glacial Aggregates acquired land in the Town of Yorkshire, which had no zoning laws, to operate a sand and gravel mine. Glacial spent approximately $500,000 on engineering and environmental studies to obtain a mining permit from the DEC. Glacial excavated material for testing, cleared trees, surveyed the land, and drilled test holes. The Town Board initially declared support for Glacial’s operation but later reversed course by enacting a zoning law requiring a special use permit, effectively preventing Glacial from mining without one. This reversal undermined Glacial’s financing and operations.

    Procedural History

    Glacial sued the Town, seeking a declaration that it could mine without a special use permit, alleging a vested right and a prior nonconforming use. The trial court denied the Town’s motion for a directed verdict, and the jury found in favor of Glacial, awarding damages. The Appellate Division reversed, granting the Town’s motion for a directed verdict and declaring that Glacial had neither a lawful nonconforming use nor a vested right. Glacial appealed to the New York Court of Appeals.

    Issue(s)

    Whether Glacial Aggregates established a vested right to mine its property based on substantial expenditures and actions taken in reliance on the absence of zoning regulations and initial town approval.

    Holding

    Yes, because Glacial made substantial expenditures and took significant actions to prepare the property for mining in reliance on the Town’s initial permission and the absence of zoning laws, a jury could reasonably find that Glacial had acquired a vested right and a prior nonconforming use.

    Court’s Reasoning

    The Court of Appeals reasoned that existing nonconforming uses are generally constitutionally protected. A vested right is established when a landowner, relying on a legally issued permit (or, in this case, the absence of zoning restrictions and initial approval), makes substantial changes and incurs substantial expenses, such that the municipal action causes serious loss. The court distinguished this case from others by emphasizing that the Town had no zoning laws when Glacial began its operations, and the key was not the DEC permit, but the unqualified permission initially enjoyed from the Town. The court noted Glacial’s $500,000 expenditure on DEC permitting costs was a significant investment. The court further noted that Glacial’s actions, such as clearing trees, surveying, and test drilling, were sufficient to demonstrate an overt manifestation of intent to mine the property before the zoning ordinance took effect. Quoting Buffalo Crushed Stone, Inc. v Town of Cheektowaga, 13 NY3d 88 (2009), the Court stated that mining permits are “strong evidence of a manifestation of intent to mine a given area.” The Court found that the jury could reasonably conclude that Glacial’s improvements were essentially valueless due to the Town’s actions.

  • Palm Management Corp. v. Goldstein, 9 N.Y.3d 337 (2007): Reissuance of Identical Certificate of Occupancy Does Not Restart Appeal Period

    Palm Management Corp. v. Goldstein, 9 N.Y.3d 337 (2007)

    The reissuance of a certificate of occupancy that is substantially identical to a prior certificate does not create a new 60-day period for appealing the determinations made in the original certificate.

    Summary

    Palm Management Corporation owned an inn with a staff dormitory and an awning, uses authorized by certificates of occupancy issued in 1989 and 1993. Neighbors, after failing to challenge these initial certificates, attempted to appeal the reissuance of a certificate in 2003, claiming the uses were unlawful. The New York Court of Appeals held that the reissuance of a substantially identical certificate of occupancy does not restart the 60-day appeal period under Village Law § 7-712-a (5) (b). This decision ensures repose for property owners who rely on unchallenged certificates, preventing endless cycles of appeals based on mere reissuances.

    Facts

    Palm Management Corporation operated an inn located in a residential zone, a lawful nonconforming use predating the zoning ordinance. The inn included a former barn used as a staff dormitory and an awning over the patio. In 1987, a building permit was issued for the awning. Certificates of occupancy issued in 1989 and 1993 approved both the dormitory and the awning. The 1989 certificate stated the inn could be occupied as a “legal preexisting nonconforming…building occupied as a hotel with…a detached two-story frame building occupied as help’s quarters.” The 1993 certificate contained the same language and referenced a “slate patio partially covered with an awning.” No appeals were filed within 60 days of either issuance.

    Procedural History

    In 1999, neighbors complained, but a Code Enforcement Officer declined to disturb the uses, citing the 1987 permit and 1993 certificate. The neighbors’ appeal to the ZBA was denied in 2001 because the officer made no new determination and challenges were time-barred. In 2003, a new certificate of occupancy was issued for refinancing purposes, mirroring the prior certificates. Within 60 days, neighbors appealed, and the ZBA annulled portions related to the dormitory and awning. Palm Management then initiated a CPLR article 78 proceeding to annul the ZBA’s determination. The Supreme Court dismissed the proceeding. The Appellate Division modified, holding res judicata barred the ZBA’s action. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the issuance of a new certificate of occupancy that is substantially identical to prior certificates constitutes a new “order, requirement, decision, interpretation or determination” under Village Law § 7-712-a (5) (a), thereby restarting the 60-day appeal period for challenging the uses authorized by the original certificates.

    Holding

    No, because the reissuance of a substantially identical certificate of occupancy does not represent a new determination subject to a new appeal period under Village Law § 7-712-a (5) (b).

    Court’s Reasoning

    The Court of Appeals reasoned that Village Law § 7-712-a (5) (b) sets a 60-day limit for appeals to the ZBA from an administrative official’s determination. The purpose of this time limit is to provide certainty and repose for property owners and those who deal with the property, allowing them to rely on the validity of a certificate of occupancy once the appeal period has expired. The court emphasized that the 2003 certificate, as it related to the dormitory and awning, merely repeated prior authorizations. The village official did not make a new decision or determination regarding these uses; they were already approved years before. Allowing a new appeal period each time a certificate is reissued would undermine the purpose of the statute of limitations. The court stated, “[T]he mere repetition, in words or substance, of an authorization contained in the old certificate of occupancy should not be treated as a newly appealable ‘order, requirement, decision, interpretation or determination.’” The Court declined to address whether a certificate of occupancy unchallenged within the initial 60-day period provides perpetual immunity, limiting its holding to the specific facts: a substantially identical reissuance does not trigger a new challenge period. Judges Kaye, Ciparick, Graffeo, Read, and Pigott concurred. Judge Jones took no part.

  • Matter of Canada Dry Bottling Company of New York v. Zoning Board of Appeals of the Town/Village of Harrison, 98 N.Y.2d 564 (2002): Restrictions on Nonconforming Uses

    98 N.Y.2d 564 (2002)

    Municipalities may adopt measures regulating nonconforming uses, and in a reasonable fashion, eliminate them.

    Summary

    Canada Dry sought to replace its wooden pallet storage system with steel-frame storage racks at its lumberyard, a nonconforming use in the Town of Harrison. The Zoning Board of Appeals (ZBA) denied the application, determining it would impermissibly expand the nonconforming use. The New York Court of Appeals affirmed, holding that substantial evidence supported the ZBA’s determination that the new racks constituted an expansion of the nonconforming use. The court also found that the ZBA rationally denied the requested use and area variances after properly balancing the benefits to Canada Dry with the detriment to the surrounding neighborhood’s health, safety, and welfare.

    Facts

    Canada Dry operated a lumberyard as a nonconforming use within the Town of Harrison. The company sought to replace its existing wooden pallet storage system with steel-frame storage racks. The proposed racks were significantly higher than the existing pallets and capable of storing three times the amount of lumber. Canada Dry installed four additional racks, and unlike the prior wooden pallets, the racks had roofs.

    Procedural History

    The Zoning Board of Appeals of the Town/Village of Harrison (ZBA) denied Canada Dry’s application, determining that the replacement of the storage system constituted an impermissible expansion of a nonconforming use and also denied the application for use and area variances. Canada Dry appealed. The lower courts affirmed the ZBA’s decision. The New York Court of Appeals granted leave to appeal and affirmed the lower court’s order.

    Issue(s)

    1. Whether the Zoning Board of Appeals erred in determining that the replacement of wooden pallets with steel-frame storage racks constituted an impermissible expansion or extension of a nonconforming use under the Town of Harrison Code?

    2. Whether the Zoning Board of Appeals rationally denied Canada Dry’s application for use and area variances?

    Holding

    1. Yes, because substantial record evidence supported the ZBA’s determination that the new racks were significantly higher, capable of storing three times the lumber, and had roofs, thus constituting an expansion of the nonconforming use.

    2. Yes, because the ZBA properly balanced benefits to the applicant with the detriment to the health, safety and welfare of the surrounding neighborhood.

    Court’s Reasoning

    The Court of Appeals began by stating that public policy favors the reasonable restriction and eventual elimination of nonconforming uses because they are seen as detrimental to zoning schemes, citing Matter of Toys “R” Us v Silva, 89 NY2d 411, 417 (1996). The court emphasized that municipalities can regulate and, in a reasonable manner, eliminate these uses. The Town of Harrison’s Comprehensive Zoning Plan aimed to promote the “gradual elimination of nonconforming uses.”

    The court deferred to the ZBA’s finding that replacing the wooden pallets with steel-frame racks impermissibly expanded the lumberyard. The court highlighted several key factual findings supported by the record: the new racks were significantly higher than the wooden pallets; they could store three times the lumber; Canada Dry installed four additional racks; and unlike the wooden pallets, the racks had roofs. The court concluded that this constituted “substantial record evidence” supporting the ZBA’s determination. The court also found that the ZBA’s denial of the requested variances was rational because they followed the appropriate balancing test outlined in Matter of Sasso v Osgood, 86 NY2d 374, 384 2 (1995), weighing the benefit to Canada Dry against the detriment to the surrounding community.

  • Matter of DJL Lighting, Inc. v. Zoning Board of Appeals of the Village of Quogue, 94 N.Y.2d 651 (2000): Nonconforming Use Must Be Qualitatively Similar

    94 N.Y.2d 651 (2000)

    A zoning board’s determination regarding the continuation of a pre-existing nonconforming use must be sustained if it is rational and supported by substantial evidence, requiring the current use to be qualitatively similar to the prior nonconforming use.

    Summary

    DJL Lighting, Inc. purchased property with a pre-existing nonconforming use (commercial moving and storage) in a residentially zoned area. DJL operated a lighting business, using the warehouse for its own equipment and supplies, rather than renting space to storage customers. The Zoning Board determined DJL’s use violated municipal code, finding it inconsistent with the prior nonconforming use. The Court of Appeals reversed the lower court rulings, holding the Board’s determination was rational and supported by evidence, as DJL’s use was not qualitatively similar to the prior commercial moving and storage business. The matter was remitted for consideration of the use variance application.

    Facts

    A parcel of real property in a residentially-zoned neighborhood was purchased by DJL Lighting, Inc. in 1997. The property had two structures: a four-story warehouse and a smaller building. For over 70 years, prior owners operated commercial moving and storage businesses, predating the village zoning ordinance. They stored customers’ goods in the warehouse and operated offices in the smaller building. DJL Lighting, aware of the nonconforming use, established a lighting design and installation business. DJL maintained offices in the smaller structure, but used the warehouse for its own equipment, inventory, and supplies, not for customer storage.

    Procedural History

    Following neighborhood complaints, the Zoning Board of Appeals (ZBA) held public hearings and determined DJL violated the municipal code by using the warehouse inconsistently with its prior nonconforming use. DJL’s application for a use variance was rejected. DJL commenced an Article 78 proceeding challenging the ZBA’s determinations. Supreme Court annulled the ZBA’s resolutions, concluding DJL had not enlarged the nonconforming use and was entitled to a use variance. The Appellate Division affirmed, finding DJL did not exceed the scope of the legal nonconforming use, and did not address the use variance application. The Court of Appeals reversed and remitted the case.

    Issue(s)

    Whether the Zoning Board of Appeals rationally determined that DJL Lighting’s use of the warehouse was not qualitatively similar to the prior nonconforming use as a commercial moving and storage facility, and therefore impermissibly exceeded the scope of the prior nonconforming use.

    Holding

    Yes, because there was record evidence supporting the Board’s conclusion that the current use of the warehouse is not qualitatively similar to the previous use, thus impermissibly exceeding the scope of the prior nonconforming use.

    Court’s Reasoning

    The Court of Appeals emphasized that while nonconforming uses are tolerated, zoning policy aims for their eventual elimination. However, a zoning board’s determination on the continuation of a pre-existing nonconforming use must be upheld if rational and supported by substantial evidence. The Court noted that the Board could rationally find that the warehouse was no longer used for commercial moving and storage because DJL now uses the building in connection with its lighting business. The Court cited Matter of Rosbar Co. v Board of Appeals of City of Long Beach, 53 NY2d 623, 625 (1981) and City of Buffalo v Roadway Tr. Co., 303 NY 453, 459-460, 462-463 (1952) to support the need for qualitative similarity. The Court found that the Zoning Board’s determination was rational and supported by evidence, and therefore should not have been disturbed. The court stated, “While nonconforming uses of property are tolerated, the overriding policy of zoning is aimed at their eventual elimination.” The case was remitted to the Appellate Division to consider the use variance issue, which it had not previously addressed.

  • Village of Valatie v. Smith, 83 N.Y.2d 396 (1994): Amortization of Nonconforming Uses Upon Transfer of Ownership

    Village of Valatie v. Smith, 83 N.Y.2d 396 (1994)

    A municipality may constitutionally terminate a nonconforming use of property upon the transfer of ownership, provided that the regulation is reasonable and does not inflict a substantial loss on the owner that outweighs the public benefit.

    Summary

    The Village of Valatie sought to enforce a local law prohibiting mobile homes outside designated parks, allowing pre-existing mobile homes to remain as nonconforming uses until a change in ownership. When defendant inherited her father’s mobile home, the Village sued to remove it. The court addressed whether terminating a nonconforming use upon transfer of ownership is a valid amortization method. The Court of Appeals held that the local law was facially valid, emphasizing that municipalities have the right to eliminate nonconforming uses through reasonable measures, including amortization periods triggered by events like transfer of ownership, and the defendant failed to prove the law’s unconstitutionality beyond a reasonable doubt.

    Facts

    In 1968, the Village of Valatie enacted a law prohibiting mobile homes outside mobile home parks. An exception was made for existing mobile homes meeting health standards, allowing them to remain as nonconforming uses until ownership of either the land or mobile home changed. The defendant inherited a mobile home from her father in 1989, which was a pre-existing nonconforming use under the 1968 law. The Village then initiated legal action to enforce the law and have the mobile home removed.

    Procedural History

    The Village sued to enforce the local law. The Supreme Court granted summary judgment to the defendant, deeming the ordinance unconstitutional. The Appellate Division affirmed, finding the amortization period unreasonable because it bore no relationship to the land use or investment. The Village appealed to the New York Court of Appeals.

    Issue(s)

    Whether a municipality may constitutionally establish an amortization period for a nonconforming use that terminates upon the transfer of ownership of the property or the nonconforming use itself?

    Holding

    Yes, because municipalities have the authority to reasonably limit the duration of nonconforming uses, and the defendant failed to demonstrate that the local law was facially unconstitutional beyond a reasonable doubt.

    Court’s Reasoning

    The Court of Appeals reasoned that municipalities have the authority to enact laws reasonably limiting the duration of nonconforming uses, characterizing the allowance of such uses as a “grudging tolerance.” The Court stated, “[W]e have recognized the right of municipalities to take reasonable measures to eliminate them.” An amortization period is a grace period that gives owners fair notice of the law and a fair opportunity to recoup their investment. The validity of an amortization period depends on its reasonableness. The Court has avoided any fixed formula for determining what constitutes a reasonable period. Instead, the Court held that an amortization period is presumed valid, and the owner must carry the heavy burden of overcoming that presumption by demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power. The Court also rejected the argument that the law violated the principle that zoning should regulate land use rather than ownership, stating that all similarly situated owners are treated identically and that the law recognizes the special status of those who have a pre-existing use at the time land controls are adopted. “The test remains whether the period unreasonably inflicts a substantial loss on the owner or fails to comport to the reasonableness required by due process.” The Court found that the defendant failed to prove unconstitutionality beyond a reasonable doubt.

  • Pelham Esplanade, Inc. v. Board of Trustees of the Village of Pelham Manor, 77 N.Y.2d 66 (1990): Rebuilding Nonconforming Structures After Destruction

    77 N.Y.2d 66 (1990)

    A municipality can prohibit the rebuilding of a nonconforming structure damaged beyond a certain percentage of its value, and in determining whether a complex of buildings constitutes a single, integrated nonconforming use, the focus should be on functional interdependence, not merely economic interdependence or the nature of the use.

    Summary

    Pelham Esplanade sought to rebuild an apartment building (one of two on a single tax lot) after it was substantially destroyed by fire. The Village denied permission, citing a zoning ordinance that prohibited rebuilding nonconforming structures damaged more than 50% of their value. Esplanade argued the 50% rule should apply to the combined value of both buildings, claiming a single, integrated use. The court held that the Village’s decision to apply the 50% rule to the individual building was not arbitrary or capricious, emphasizing that municipalities have the right to reasonably restrict nonconforming uses, and functional interdependence is key to determining if multiple buildings constitute a single nonconforming use.

    Facts

    Pelham Esplanade owned two apartment buildings on a single tax lot in the Village of Pelham Manor. The buildings operated as a unit for over 40 years, representing a pre-existing, nonconforming multiple-family use in a single-family residential zone. In 1986, a fire destroyed one of the apartment buildings. Esplanade sought permission to rebuild the destroyed building and renovate the remaining building, or alternatively, to pursue a phased development. The Village denied the site plan approval based on a zoning ordinance that prohibits rebuilding nonconforming structures damaged beyond 50% of their value.

    Procedural History

    The Supreme Court dismissed Esplanade’s petition challenging the Village’s denial. The Appellate Division reversed, directing the Village to approve Esplanade’s site plan, concluding the buildings constituted a single, integrated, nonconforming use. The Village appealed to the New York Court of Appeals, which granted leave.

    Issue(s)

    Whether the Village’s determination that the two apartment buildings did not constitute a single, integrated, nonconforming use, thus allowing application of the 50% damage rule to the individual building destroyed by fire, was arbitrary or capricious.

    Holding

    No, because the Village’s determination was not arbitrary or capricious, as the buildings were not functionally interdependent, and municipalities have the right to reasonably restrict nonconforming uses.

    Court’s Reasoning

    The court emphasized the law’s aversion to nonconforming uses, stating, “[T]he policy of zoning embraces the concept of the ultimate elimination of nonconforming uses, and thus the courts favor reasonable restriction of them.” While acknowledging that nonconforming uses are tolerated to avoid undue financial hardship for property owners, there is no absolute right to reestablish a nonconforming use after destruction. The court distinguished this case from Matter of Bobandal Realties v Worthington, where the focus was on whether applying the restoration limitation ordinance would destroy a great part of the value of the nonconforming property. The court clarified that “functional interdependence, rather than economic interdependence or nature of the use, is more consonant with the thrust and analysis of Bobandal.” Functional interdependence balances the public interest in eliminating nonconforming uses with the owner’s investment interest. The Court highlighted that the Board considered the history, ownership, and use of the buildings, and reasonably concluded the undamaged building could operate independently. The court noted the importance of not substituting its judgment for that of the zoning board, but rather determining whether there was illegality, arbitrariness, or abuse of discretion. The court found none, emphasizing that “the Board’s determination to deny site plan approval resurrecting an extinguished nonconforming use may not be disturbed under our standard of judicial review.”

  • Matter of Parkside Community Church, Inc. v. Zoning Bd. of Appeals of the Vil. of Dobbs Ferry, 66 N.Y.2d 967 (1985): Abandonment of Nonconforming Use Requires Complete Cessation

    66 N.Y.2d 967 (1985)

    A nonconforming use is only deemed abandoned when there has been a complete cessation of the nonconforming use.

    Summary

    This case addresses the issue of whether a property owner abandoned a nonconforming use by allowing one of two structures on the property to remain vacant for a period of years. The New York Court of Appeals held that abandonment of a nonconforming use requires a complete cessation of the entire nonconforming use, not just a portion of it. Because the other structure on the property remained in use, the nonconforming use was not abandoned. The Court modified the lower court’s order by removing the requirement that the matter be remitted to the Zoning Board of Appeals (ZBA) to determine if the petitioner was improperly extending or enlarging the structure.

    Facts

    Parkside Community Church owned a parcel of land in the Village of Dobbs Ferry with two structures: a three-family dwelling in the front and a one-family house in the rear. Prior to 1969, the owner lived in the one-family house and rented out the three-family dwelling. A zoning ordinance passed before 1969 made this use nonconforming, as it only permitted one two-family structure on the lot. Both dwellings continued to be occupied as nonconforming uses until 1969. From 1969 to 1984, the rear one-family house remained vacant, while the front three-family dwelling continued to be used. In 1984, Parkside Community Church purchased the property and applied for a permit to renovate the rear building.

    Procedural History

    The village building inspector denied Parkside Community Church’s application for a permit. The Zoning Board of Appeals (ZBA) affirmed the denial, stating that the use of the property for four families had been abandoned. The Supreme Court annulled the ZBA’s decision. The Appellate Division affirmed the Supreme Court’s judgment but remitted the matter to the ZBA to determine whether the petitioner’s application sought to improperly extend or enlarge the structure. The ZBA appealed to the New York Court of Appeals.

    Issue(s)

    Whether the vacancy of one of two dwellings on a property, where both dwellings contribute to a single nonconforming use, constitutes abandonment of the entire nonconforming use.

    Holding

    No, because abandonment does not occur unless there has been a complete cessation of the nonconforming use.

    Court’s Reasoning

    The court stated that abandonment requires a complete cessation of the nonconforming use. The court cited several cases in support of this proposition, including Matter of Daggett v Putnam, 40 AD2d 576; Baml Realty v State of New York, 35 AD2d 857; City of Binghamton v Gartell, 275 App Div 457, 460; and Barron v Getnick, 107 AD2d 1017, 1018. The court found that there was no evidence that the entire nonconforming use (use of the lot for more than one two-family structure) had been abandoned, since the three-family dwelling continued to be occupied. Therefore, the petition was properly granted and the determination of the ZBA annulled.

    The court also addressed the lower court’s decision to remit the matter to the ZBA to determine whether the petitioner’s application sought to improperly extend or enlarge the structure. In light of the fact that the petitioner’s application only sought to restore the rear structure to its former condition and the ZBA’s request that the matter not be remitted, the Court of Appeals modified the Supreme Court’s order by deleting the provision ordering such remittal.

  • Incorporated Village of Old Westbury v. Alljay Farms, Inc., 64 N.Y.2d 798 (1985): Nonconforming Use for Personal, Not Commercial, Horse Keeping

    64 N.Y.2d 798 (1985)

    A property owner with a pre-existing nonconforming use can continue that specific use after a zoning ordinance changes, but cannot expand it into a different, more intensive use.

    Summary

    Alljay Farms operated a horse farm in the Incorporated Village of Old Westbury. After zoning ordinances were enacted, the village sought to prevent Alljay Farms from operating a commercial horse breeding and training facility, arguing it violated the new zoning laws. The court found that while Alljay Farms did not have a right to operate a commercial horse farm as a nonconforming use, they did have a right to keep their own horses on the property as an accessory use that predated the ordinance. The court distinguished between permissible accessory use (keeping personal horses) and an impermissible expansion into a commercial enterprise.

    Facts

    Prior to the enactment of the zoning ordinance, Alljay Farms maintained horses on their property. The zoning ordinance was enacted, which created distinctions between farms raising cattle and crops and farms breeding and training horses. The Village then attempted to prevent Alljay Farms from operating a commercial horse breeding and training facility. Alljay Farms claimed a legal nonconforming use, allowing them to continue their operation despite the new zoning restrictions.

    Procedural History

    The Appellate Division found that Alljay Farms did not have a legal nonconforming use for a commercial horse farm but also determined they could continue to maintain their own horses on the property. The New York Court of Appeals affirmed the Appellate Division’s order with a modification to declare that the defendants have a valid nonconforming use accessory to their single-family dwelling for the maintenance of the defendants’ own horses, even though they are racing horses.

    Issue(s)

    1. Whether Alljay Farms had established a legal nonconforming use for a commercial horse farm that predated the zoning ordinance, thereby exempting them from its restrictions.
    2. Whether the distinction in the zoning ordinance between farms raising cattle/crops and those breeding/training horses was unconstitutional.
    3. Whether Alljay Farms could continue to maintain horses on the property as an accessory use, even if they were racing horses.

    Holding

    1. No, because Alljay Farms did not demonstrate a pre-existing commercial horse farm operation sufficient to establish a legal nonconforming use.
    2. No, because Alljay Farms failed to meet the heavy burden of proving the zoning ordinance’s distinction between different types of farms was unconstitutional.
    3. Yes, because maintaining horses as an accessory use predated the ordinance and could continue, even if the horses were used for racing, but it cannot be expanded to a commercial breeding farm.

    Court’s Reasoning

    The court upheld the Appellate Division’s ruling that Alljay Farms failed to prove they had a legal nonconforming use for a commercial horse farm. The court also found that Alljay Farms did not meet the burden of proving that the distinction made in the zoning ordinance between farms for raising cattle and crops and farms for horse breeding and training was unconstitutional. The court reasoned that Alljay Farms could not expand their pre-existing, accessory use of maintaining horses into a commercial breeding farm. The key was the difference between a pre-existing accessory use (personal horses) and a new, more intensive commercial use. The court stated that the “maintaining of defendants’ horses, even though they be racing horses, on the property cannot be precluded.” The court emphasized that the pre-existing use could continue, but not be expanded.

  • Parkway Woods, Inc. v. Petco Enterprises, Inc., 68 N.Y.2d 658 (1986): Waiver of Standing Defense and Abandonment of Nonconforming Use

    Parkway Woods, Inc. v. Petco Enterprises, Inc., 68 N.Y.2d 658 (1986)

    A challenge to a petitioner’s standing in an Article 78 proceeding is waived if not raised in the responsive pleading or by pre-answer motion, and a nonconforming use is deemed abandoned when discontinued or not used for a specified period, regardless of the owner’s intent or lease agreements.

    Summary

    Parkway Woods, Inc. initiated an Article 78 proceeding to challenge the zoning board’s grant of a certificate of existing use to S.F. Shopping Center, Inc. for a gasoline service station. S.F. Shopping Center, Inc. failed to raise the issue of Parkway Woods, Inc.’s standing in its initial answer. The court held that the failure to raise the standing issue in the initial pleading constituted a waiver of that defense. Furthermore, the court determined that the zoning board’s finding that the nonconforming use (gas station) had not been abandoned was not supported by substantial evidence, as the property had not been used as a gas station for over a year.

    Facts

    Petco Enterprises, Inc. operated a gasoline service station.
    S.F. Shopping Center, Inc. sought a certificate of existing use for the gasoline service station.
    The gasoline pumps had been removed from the premises.
    The building on the premises was used as a tobacco shop for more than a year before becoming vacant.
    Parkway Woods, Inc. initiated an Article 78 proceeding to review the zoning board’s determination.

    Procedural History

    Parkway Woods, Inc. commenced an Article 78 proceeding to review the zoning board’s determination.
    S.F. Shopping Center, Inc. interposed its answer without asserting the petitioner’s lack of standing.
    The Zoning Board of Appeals filed an amended answer, also without raising a standing objection.
    The Appellate Division’s order was appealed to the New York Court of Appeals.

    Issue(s)

    Whether S.F. Shopping Center, Inc. waived its right to challenge Parkway Woods, Inc.’s standing by failing to raise the issue in its initial responsive pleading.
    Whether the zoning board’s determination that the nonconforming use had not been abandoned was supported by substantial evidence.

    Holding

    Yes, because CPLR 3211(e) provides that the defense of lack of standing is waived if not raised by motion or in the responsive pleading.
    No, because the property was not used as a gasoline service station for more than one year, and the ordinance states that such non-use constitutes abandonment, regardless of the owner’s intent.

    Court’s Reasoning

    The court relied on CPLR 3211(e), which explicitly states that a defense based on lack of standing is waived if not raised in the responsive pleading or by motion. Because S.F. Shopping Center, Inc. failed to raise the issue in its initial answer, it waived the defense.
    The court also analyzed the Brookhaven ordinance, which states that a nonconforming use is abandoned if “discontinued, abandoned or not used for a period of one (1) year or more.” The court noted that the respondents conceded that the gasoline pumps had been removed and the building was used as a tobacco shop for over a year. The court reasoned that the owner’s intent, lease agreements, and presence of underground storage tanks were insufficient to demonstrate continued use as a gasoline service station. Therefore, the zoning board’s decision lacked substantial evidence. The court cited 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 in support of the principle that administrative decisions must be based on substantial evidence.