Second Department Reverses Denial of Existing Use Application, Holds Landowner Has Prior Nonconforming Use in Property for Storage of Construction Equipment

Farrell Fritz, P.C.
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In a recent decision, Matter of Labate v DeChance, the Second Department held that a landowner could continue to use his property to store construction equipment, despite a zoning ordinance prohibiting that type of use.

By way of background, the petitioner (“Petitioner”) owns property located in Rocky Point, within the Township of Brookhaven (the “Town”), Suffolk County, New York (the “Property”).  Prior to Petitioner’s ownership of the Property, it was “used to provide water to a private water company” and “to store construction equipment, such as trucks, trench diggers, backhoes, and cars, since 1947.”  However, this use was subsequently prohibited by the Town’s zoning code.

Petitioner, who operates a construction company, purchased the Property in 2001, and continued to use it for the storage of construction equipment.  Petitioner maintained that the Property has continuously been used to store construction equipment, except for a three-month period just prior to Petitioner’s ownership.

In 2012, Petitioner applied to the Town for a certificate of existing use that would allow him to continue using his Property to store construction equipment as a prior nonconforming use.  At the Town’s Zoning Board of Appeals (the “ZBA”) hearing on the application, both Petitioner and the wife of the former Property owner testified in its support.  In addition to that testimony, an 87-year-old woman familiar with the Property submitted an affidavit stating that the Property had been used for the “outdoor storage of trucks and miscellaneous equipment and materials continuously since 1947.”  As evidence in opposition to the application, the ZBA accepted and considered aerial photographs of the Property from 1962, 1984, and 2001.  Those photographs showed no construction equipment on the Property.  Ultimately, the ZBA denied the application, finding that Petitioner failed to meet his burden of demonstrating continuous use of the Property as a site for construction equipment storage.

Upon Article 78 review, the lower court here upheld the denial, holding that there was a rational basis to support the ZBA’s determination.

The Second Department reversed.  The general rule pertaining to nonconforming uses provides that such uses are “‘constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of [a subsequently enacted] ordinance’ (Matter of Cinelli Family Ltd. Partnership v Scheyer, 50 AD3d 1136, 1137 [internal quotation marks omitted]).”  Zoning board determinations will generally be upheld if they are rationally based and supported by substantial evidence.  Here, the Town code provision concerning the discontinuance of nonconforming uses provides that “[t]he substantial discontinuance of any nonconforming use for a period of one year or more terminates such nonconforming use of a structure or premises” (Brookhaven Town Code § 85-883 [A] [6]).

Based on the evidence in the record, the Second Department held that the ZBA’s determination denying Petitioner’s application lacked a rational basis.  When considering the testimony and affidavit presented at the hearing, the Court found that Petitioner had met his burden of establishing continuous use of the Property for construction equipment storage since 1947, other than the three-month period during which the Property was transferred between owners.  The evidence submitted in opposition to the application failed to rebut this evidence.  Although the photographs, taken in 1962, 1984, and 2001, showed no construction equipment on the Property, that alone was insufficient “to demonstrate a one-year cessation in storage activity on the [P]roperty.”  Accordingly, the ZBA should have granted Petitioner’s requested certificate of existing use.

Takeaway: Although a local zoning board is afforded broad discretion in deciding land use applications, there must always be substantial evidence to support its determinations.  A determination lacking a rational basis will likely be reversed by a reviewing court.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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