Third Department Holds Owner Did Not Abandon Nonconforming Use

In 2012, Respondent North High Realty Holdings, Inc.  (“NHRH”) purchased real property in the Town of Queensbury, Warren County, within a commercial intensive zoning district that prohibited single-family residences. The property consisted of a commercial building and a single-family dwelling as a lawful preexisting nonconforming use. After purchasing the property, NHRH sought a variance to continue using the single-family dwelling as a residence. Respondent Town of Queensbury Zoning Administrator determined that a variance was unnecessary as NHRH had submitted evidence that the single-family dwelling had been used as a residence without an interruption of more than 18 consecutive months.  Thus, the preexisting nonconforming use had not been discontinued. Petitioner, a neighboring property owner, appealed the decision to the ZBA, which affirmed the ruling, and then filed suit to review the ZBA determination.  The Supreme Court reversed, finding the wrong legal standard has been applied, and Respondents appealed.

On appeal, the Third Department noted that the language of the Town Code unambiguously set forth that cessation of the preexisting nonconforming use, not the use itself, must occur continuously and without interruption for 18 months.  Thus, the determination was factual and owed deference, and was not, as the lower court held, pure legal interpretation of the Code. The Court found that the ZBA's decision was neither irrational nor unreasonable, as conflicting evidence was presented at public hearings as to whether the preexisting nonconforming use had been discontinued and abandoned. For example, evidence was presented 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 Supreme Court’s decision.

The case was Lumberjack Pass Amusements, LLC v. Town of Queensbury, 145 A.D.3d 1144 (3d Dep’t 2016).

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