Development

In landowner's hybrid article 78 proceeding/declaratory judgment action challenging a DOB (Department of Buildings) summons for using commercial premises in violation of the zoning ordinance, landowner contested a determination by the New York City Office of Administrative Trials and Hearings (OATH). The Appellate Division upheld the determination, concluding that the summons was not duplicative of an earlier summons and that landowner's use did not qualify as a pre-existing nonconforming use.

Landowner uses the subject parcel as an automobile repair shop and state inspection station. That use was permitted in the district until 2006 when the city amended the ordinance to place the parcel in a residential district with a commercial overlay. Landowner continued to use the parcel as a legal nonconforming use. In 2017, landowner purchased four industrial shipping containers and placed them on the parcel to store parts for customizing vehicles and performing body work. A DOB inspector issued a summons for illegal use of the premises, but an OATH hearing office dismissed the summons, concluding that the presence of the containers conforms to the use of the premises. DOB did not appeal. Seven months later, a different DOB inspector issued another summons, this time for violation of the certificate of occupancy. The hearing officer again dismissed the summons, finding no violation. This time, the city appealed to the OATH appeals unit, which reversed the hearing officer's decision to dismiss the second summons. The appeals unit concluded that second summons was not duplicative of the first because it addressed different dates and different violations, and concluded that the four containers were not in conformity with the certificate of occupancy. Landowner then brought this article 78 proceeding. Supreme Court transferred the proceeding to the Appellate Division for a substantial evidence review.