non-conforming use

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

In a recent decision, Matter of Red Wing Properties, Inc. v. Town of Rhinebeck, et al., the Second Department held that a landowner’s intent to continue using its property for mining operations established a valid pre-existing nonconforming use.

Red Wing Properties, Inc. (“Petitioner”) owns roughly 241 acres of property located with the Town of Rhinebeck (the “Town”).  For several…
Continue Reading Landowner’s Intent to Mine Property Sufficient to Establish Nonconforming Use

In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who…
Continue Reading Remediation of Petroleum Spills Amount to Continuation of Nonconforming Use

The Breakers Motel has been a fixture in Montauk since the 1950’s. Situated at 769 Old Montauk Highway, Montauk New York, the motel has 26 units, a pool and restaurant and is located across the street from the ocean.

In 2015 a building permit was issued by the Town of East Hampton Building Department approving renovations to the existing restaurant…
Continue Reading Challenge to Montauk Motel’s Restaurant Fails at Supreme Court Level

Zoning codes are often at odds with a property owner’s intended use for its site. In certain situations, a property owner may be able to use the site as intended. For example, if the actual use pre-dates the zoning code change, it can continue as a non-conforming use. This is frequently referred to as the “grandfather” doctrine.House on Law Book shutterstock_105894032

A property owner…

Continue Reading Vested Rights – When They Vest And When They Do Not