Court Upholds Dismissal of Petition to Annul Issuance of a Special Use Permit Due to Nonconforming Use

Respondent Morrow and her husband operated a home improvement business out of a building located on their residential property in the Village of Clifton Springs, and had done so for nearly 45 years. This business had been “grandfathered” as a non-conforming use following the enactment of the Village of Clifton Springs Zoning Ordinance. After the death of Morrow's husband, a former employee continued working out of the building until Morrow came to terms with another individual to permit him to operate an HVAC business out of the building. Morrow applied for a building permit to make nonstructural changes to the building to accommodate the HVAC business, and the Code Enforcement Officer denied the building permit on the ground that Morrow needed a special use permit. Morrow subsequently applied for a special use permit, which was granted by the Village of Clifton Springs Zoning Board of Appeals. Petitioner commenced a proceeding under CPLR Article 78 seeking to annul of the issuance of a special use permit, but the Supreme Court issued a judgment dismissing the petition.  Petitioner appealed.

On appeal, the Appellate Division, Fourth Department noted that § 120–55 of the Zoning Ordinance provides that the ZBA may permit “any nonconforming use of a structure” to “be changed to another nonconforming use, provided that the ZBA shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use.” The Court concluded that the ZBA's determination that Morrow did not discontinue or abandon the nonconforming business use of the property was a reasonable application of § 120–55. Finally, although it was appropriate for the ZBA to request such records, Morrow's failure to present records of ongoing business activity did not constitute a basis to set aside the ZBA's determination.

Based on the forgoing, the Court affirmed the Supreme Court’s decision to dismiss the petition.

The case was Bounds v Village of Clifton, 137 A.D.3d 1759 (4th Dep’t 2016).

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