Nonconforming Uses – Don’t Abandon Them
October 21, 2019
Legal pre-existing nonconforming uses (aka grandfathered uses) have a tenuous existence in New York. Although protected by vested property rights in the Constitution, many local zoning ordinances seek to eliminate these vestigial uses with regulations that hinge on continual use. The allowance of nonconforming uses by the courts has been grudgingly tolerated, with the ultimate goal of the zoning code to have these now prohibited uses eventually eliminated.
Recently, the Town of Smithtown Board of Zoning Appeals denial of a legal nonconforming concrete manufacturing plant was overturned by the Court, because the use was not “abandoned” under the Town Code. See, KPE II, LLC v Town of Smithtown Board of Zoning Appeals.
The Smithtown Town Code provides that a certificate of existing use (CEU) will not be issued where a “lawful nonconforming use…is abandoned for more than 12-months…” (emphasis added). See Town Code §377-22.
In New York, the right of a property owner to continue a nonconforming use may be lost through “abandonment” of such use. Binghamton v Gartell, 275 AD 457 [3d Dept 1949]. Importantly, “abandonment” requires intent which is a voluntary and affirmative act. Moreover, it means something more than a mere suspension, temporary non-occupancy of a building or site, or temporary cessation of business even though such discontinuance of activities may have existed over a considerable period of time Id.
“Abandonment” of a nonconforming uses requires the occurrence of two elements: (1) an intention to abandon or relinquish; and (2) some overt act, or some failure to act, which carries the implication that the owner neither claims nor obtains any interest in the subject matter of the abandonment Id. (emphasis added). Thus, abandonment, or more precisely an intention to abandon, cannot be presumed but must be based on an affirmative action by the one who is abandoning.
As stated by the Court in Binghamton, time is not an essential element of abandonment. Mere non-use of property over a period of time, when unaccompanied by any other acts indicating an intention to relinquish or abandon title thereto or ownership thereof, does not amount to an abandonment. Id.
Furthermore, the courts have continuously held that in order to find abandonment of a non-conforming use, the intent to abandon must be coupled with the actual and complete discontinuance of the nonconforming use. Eccleston v Town of Islip Zoning Bd. Of Appeal, 40 AD3d 854 [2d Dept 2007].
In comparison, where a zoning ordinance provides for the termination of a nonconforming use after the “discontinuance” of such use over a specified period of time, there is no inquiry as to the owner’s intent to abandon. Matter of Sun Oil Co. v Town of Harrison, 57 AD 2d 627 [2d Dept 1977]. Timing is everything when it comes to termination of a nonconforming use by discontinuance.
By definition, that rule was not applicable in KPE II LLC v Smithtown, because the Town Code operates under the “abandonment” doctrine, and thus requires intent. Accordingly, the fact that the former owner of the KPE II, LLC site may not have operated the site robustly does not rise to the level of having the intent to abandon it. Thus, in Smithtown the requirements for a CEU are premised on abandonment, and distinct from code provisions in other jurisdictions which rely merely on the discontinuance of the use over a period of time.
The record in KPE II, LLC clearly supported the conclusion that there was never any intent to abandon operations at the site. While the use as a concrete manufacturing facility may have diminished for a period of time, that did not constitute abandonment. As a result, the use as a concrete manufacturing plant in a now residential community is still permitted.
The moral of the story: if you have a pre-existing legal nonconforming use and are considering ceasing operations to renovate or replace structures, beware of giving up your non-conforming status; and check your local zoning ordinance for abandonment or discontinuance language.