Court Affirms There Is No Entitlement to Nonconforming Use Status As Prior Use Was Discontinued

Petitioner/Plaintiff (henceforth “Petitioner”) commenced an Article 78 proceeding seeking review a determination of the Zoning Board of Appeals for the Town of Mount Pleasant (“ZBA”) denying Petitioner’s appeal from a Code Enforcement Appearance Ticket issued by Respondent Town Building Inspector. The Supreme Court denied the petition and dismissed the proceeding.  Petitioner appealed.

On appeal, the Appellate Division, Second Department held that contrary to Petitioner’s contention, Petitioner failed to establish that its use of the subject property as a maintenance garage and truck storage facility was a preexisting nonconforming use that (1) existed at the time of the enactment of the Town of Mount Pleasant Zoning Code in 1928, and (2) had continued uninterrupted thereafter except for a period of one year or less. Here, the ZBA determined that a use variance issued in 1931 to a prior owner limited the subject property to a sand and gravel operation, a use that was discontinued around 1950. Thus, the Court found that Petitioner's subsequent use of the subject lot as a maintenance garage and truck storage facility was a change to a different nonconforming use, rather than a continuation of an existing nonconforming use. Finally, the Court rejected Petitioner’s claim that Respondents were equitably estopped from prohibiting the operating of a maintenance garage and truck storage facility on the subject lot.  As the evidence submitted by Petitioner failed to establish that there were “exceptional circumstances” involving wrongful or negligent conduct of a governmental subdivision, or misleading nonfeasance by that governmental subdivision, the Court found this claim to be without merit. Thus, the court affirmed the Supreme Court’s denial of the petition and dismissal of the proceeding on the merits.

The case was Bradhurst Site Construction Corp. v Zoning Board of Appeals, Town of Mount Pleasant, 128 A.D.3d 817 (2d Dep’t 2015).

Powered by 123ContactForm | Report abuse