Development

ZBA'S Non-Conforming Use Determination Stands

Matter of Jacobson v. Town of Bedford Zoning Board of Appeals

NYLJ 2/23/09, p. 33, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging a determination that use of real property as a commercial parking lot was a pre-existing non-conforming use, neighbor appealed from the Supreme Court's judgment denying the petition and dismissing the proceeding. The Appellate Division affirmed, deferring to the factual determination made by the zoning board of appeals.

The town zoning ordinance provides that parking for a non-residential use shall not be located an a residential district. Landowner owns a parcel in an R-2A district, which permits residential uses on two-acre lots. Landowner contended that landowner had been using the parcel for parking since before enactment of the current ordinance. The zoning board of appeals agreed, and concluded use of the parcel as a parking lot was a legal pre-existing non-conforming use. Neighbor then brought this article 78 proceeding, and the Supreme Court dismissed.

In affirming, the Appellate Division noted that the determination of the zoning board regarding continuation of a non-conforming use must be sustained so long as it is rational and not illegal or an abuse of discretion. In this case, the court concluded that even if the court itself might have reached a different conclusion, the zoning board's determination was rational.

ZBA'S Non-Conforming Use Determination Stands

Matter of Jacobson v. Town of Bedford Zoning Board of Appeals

NYLJ 2/23/09, p. 33, col. 1

AppDiv, Second Dept.

(memorandum opinion)

In neighbor's article 78 proceeding challenging a determination that use of real property as a commercial parking lot was a pre-existing non-conforming use, neighbor appealed from the Supreme Court's judgment denying the petition and dismissing the proceeding. The Appellate Division affirmed, deferring to the factual determination made by the zoning board of appeals.

The town zoning ordinance provides that parking for a non-residential use shall not be located an a residential district. Landowner owns a parcel in an R-2A district, which permits residential uses on two-acre lots. Landowner contended that landowner had been using the parcel for parking since before enactment of the current ordinance. The zoning board of appeals agreed, and concluded use of the parcel as a parking lot was a legal pre-existing non-conforming use. Neighbor then brought this article 78 proceeding, and the Supreme Court dismissed.

In affirming, the Appellate Division noted that the determination of the zoning board regarding continuation of a non-conforming use must be sustained so long as it is rational and not illegal or an abuse of discretion. In this case, the court concluded that even if the court itself might have reached a different conclusion, the zoning board's determination was rational.