Court of Appeals To Focus on ‘Prior Nonconforming Uses’

March 23, 2022

A “prior nonconforming use” is a use of property that existed before the enactment of a local zoning restriction that prohibits the use. New York law has long made it clear that a prior nonconforming use in existence when a zoning ordinance is adopted generally is constitutionally protected even though the ordinance may explicitly ban the activity that is the subject of the prior nonconforming use. See, e.g., People v. Miller, 304 N.Y. 105 (1952).

Courts and legislators disfavor the broad application of the prior nonconforming use doctrine, as the law generally views nonconforming uses as detrimental to a zoning scheme, and the overriding public policy of zoning in New York is aimed at their reasonable restriction and eventual elimination. See, e.g., Matter of Toys “R” Us v. Silva, 89 N.Y.2d 411 (1996). Nevertheless, property owners engaging in a particular activity may have a vested right to use their land for that activity, and prior nonconforming uses generally are permitted to continue. See, e.g., Matter of Rudolf Steiner Fellowship Found. v. De Luccia, 90 N.Y.2d 453 (1997).

A case now before the New York Court of Appeals may determine the scope of the protection afforded to property owners by the prior nonconforming use doctrine.

Reprinted with permission from New York Law Journal, Wednesday, March 23, 2022, Vol 267 – No. 55.

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