New York State Delaware County Supreme Court Decision about VWParts junkyard in Fleischmanns, 1998

7/28/2019 New York State Delaware County Supreme Court Decision about VWParts junkyard in Fleischmanns, 1998

1/10

At an lAS Term of the Supreme Court of theState of New York; held in and for the CountyOf Otsego, at 242 Main Street, Oneonta,New York, on the 3rd day of April, 1998.

STATE OF NEW YORKSUPREME COURT COUNTY OF DELAWAREIn the Matter ofV. W .. PARTS, INC.,

Petitioner,For a Judgment Pursuant to Article 78of the CPLR DECISION& ORDER

1. Index No. 98-203R/I No. 98-0 I 00

-against-THE VILLAGE OF FLEISCHMANNS,NEW YORK,

Respondent.

APPEARANCES:GERSTENZANG, HICKEY&GERSTENZANG, ESQS.(PETER J. HICKEY, ESQ., Of Counsel)Attorneys for Petitioner41 State StreetAlbany, New York 12207DONALD ZEE, P. C.Attorneys for Respondent1621 Central AvenueAlbany, New York 12205


2/10

This Article 78 proceeding represents the third time that these parties have beenbefore the court concerning petitioner's operation of a "junkyard" in the Village ofFleischmanns. By resolution adopted March 9, 1998, the Village Board deniedpetitioner's application for renewal of its junkyard license. This resolution resulted froma public hearing held on February 28, 1998 by the Village Board for the purpose ofdetermining whether the application of petitioner was one for renewal of its license or,due to discontinuance of the nonconforming use as a "junkyard", the application shouldbe treated as an original application for a "junkyard" pennit. The petition seeks a

'i.judicial declaration that the "junkyard" was in existence on the date of adoption of theJunkyard Ordinance and that it has been in continuous operation since that time anda direction that respondent allow the petitioner to present evidence of compliance withthe balance of the criteria necessary to the renewal of the license.

The Village of Aeischmanns adopted Local Ordinance #68 in 1973, commonlyknown as the Junkyard Ordinance, effective on or about January 1, 1974. It isundisputed that A.H. Todd & Son, Inc. conducted an automobile business on a parcelof property within the Village prior to enactment of the Junkyard Ordinance. It is alsoundisputed that the existence of vehicles and pans which fit the definition of "junkyard"antedated the Junkyard Ordinance such that this use was non-confonning. As a result,A.H. Todd & Son, Inc. applied for and received junkyard permits annually until May

At or about that time, A.H. Todd & Son, Inc. ceased doing business at this

2


3/10

location. In 1992, AH. Todd & Son, Inc. sold the premises which \\'ere thereafterleased to the petitioner herein. The evidence in this record shows that junk vehicles andthe like were left on the site to preserve the non-conforming use so that any subsequentpurchaser could continue the established junkyard. Consequently, the junkyard pennitwas not renewed by AH. Todd & Son, Inc. after the cessation of its automobilebusiness.

In a similar proceeding in 1993, petitioner sought an order compelling therespondent to issue a renewal permit based upon an application for permit made on June28, 1993. In that proceeding, the record establishea that the Village had issued a pennitto petitioner for the period September 11, 1992 to May 31, 1993. In that proceeding,the respondent contended that since no legal junkyard permit for the premises wasobtained after May 31, 1990, the non-conforming use ceased and any new permit mustbe considered as an application for an original junkyard permit. The coun denied thepetition since it was apparent that the respondent had made no findings of fact withrespect to the abandonment of the non-confonning use which could be reviewed by thecourt. From the second proceeding, it is clear that, following the initial decision,petitioner took no steps to secure a renewal pennit until the Village issued a cease anddesist order. Then, by letter dated December 21, 1993, petitioner submitted anotherapplication for renewal of the previously issued junkyard pennit. The record does notdemonstrate what action, if any, the Village took v'lith respect to this latter application

3


4/10

Notwithstanding the application of December, 1993 and the apparent inaction of theVillage with respect thereto, the petitioner filed another letter application on September9, 1997 requesting renewal of the junkyard pennit. It is this application which1

\precipitates the panies finally addressing the issue of whether the non-confonning use \\was ever abandoned such that the present application should be considered an initialapplication for a junkyard pennit as opposed to the renewal of a previously issued permit I

I

for the non-conforrning use.The resolution of the Village Board of March 9, 1998 denying the renewal

application of the petitioner finds as fact that (a) nb valid junkyard pennits were issuedfor the subject premises for the years 1990-1991 and 1991-1992; (b) that the renewalapplication of petitioner of 1993 was rejected; (c ) that the credible evidence at thepublic hearing establishes that AH. Todd & Son, Inc. did not operate a junkyard; (d)that none of the witnesses for petit ioner specifically testified that AH. Todd & Son, Incoperated a junkyard; and (e) that there was conflicting testimony regarding the extentthat A.H. Todd & Son, Inc. operated a junkyard. Based upon these findings of fact, theVillage Board concluded that the petitioner had failed to meet its burden of proofestablishing it was entitled to a renewal of its pennit.

VVhile it is abundantly clear from the first two Article 78 proceedings betweenthese panies that the issue to be determined at the hearing was whether the non-conforming use was abandoned by A.H. Todd & Son, Inc. during the years 1990-1991

4


5/10

and 1991-1992, and despite the stark clarity of the issue, the parties seem to haveframed the issue as being whether or not the junkyard has been in continuous operationon the premises in question since the enactment of the Junkyard Ordinance.

An administrative determination attacked as being arbitrary and capricious or as

in reason and is generally taken vvithout regard to the facts." Matter of PeB ys, BoardQf EdUcation, 34 NY 2d 222, 231 (1974). Applying this standard to the matter beforethe court, it is obvious that the fmdings of fact made by the Village Board have no

. "-rational or factual basis and are made vvithout any regard to the circumstances existent.First, it is not disputed that AH. Todd & Son, Inc. applied for and received

junkyard pennits continuously from 1974 through May, 1990. The Village Board, inits findings of fact, made no reference to these permits or their legal Significance. vVhilethe doctrine of estoppel generally has no application to governmental bodies when actingin a governmental capacity {See, E,F,S. Ventures Corp. ys. Foster, 71 NY 2d 359, 369(1988); TQwn of Oneonta ys. City of Oneonta, 191 AD 2d 891 (3rd Dept. 1993);Schwanz vs. CrQssQn, 165 AD 2d 147 (3rd Dept. 1991)}, it may be invoked to preventmanifest injustice. Freeport ys. Sanders, 121 AD 2d 834 (2d Dept. 1986 ), appealdismissed 68 !\'Y 2d 907 (1986); Landmark Colony vs. Board of Supervisors, 113 AD2d 741 (2nd Dept. 1985). Here, to allow the Village Board to ignore the consistent andcontinuous issuance of renewal permits to A.H. Todd & Son, Inc. for a period of 16

5


6/10

....----\years is manifestly unfair to the petitioner. Moreover, although there is no evidence inthe present record, the Village Board apparently ignored its o\'\'n records which reflectthat a permit was issued to this petitioner covering September, 1992 to May, 1993.

Second, the record does not contain any evidence that the 1993 renewalapplication was rejected by the Village. In fact, it appears that the Village took noaction with respect to the application for renewal made on December 21, 1993. Thisinaction resulted in petitioner operating its business without a permit. Contrary to theposition adopted by the Village, there is simply no legal validity to the argument that

. ..a non-conforming use is lost merely because the required licence was not obtained. See,Matter of Kennedy vs. Zoning Board of Appeals of the Town of North Salem, 205 AD2d 629 (2nd Dept. 1994); Anderson, New York Zoning Law and Practice, Section 6.12,at pg 219-220 [3rd ed.]. In Rubin vs. Wallace, 63 AD 2d 763 (3rd Dept. 1978), thecoun held that an owner's failure to procure a cenificate of occupancy for anonconforming building does not render the use illegal and bar the continuation of thenonconforming use. Consequently, the emphasis placed upon the failure of AH. Todd& Son, Inc. to obtain a junkyard pem1it for the years 1991-1992 is misplaced and is notdispositive of the issue of continuous operation or abandonment of a nonconforminguse.

The finding of fact that A.H. Todd & Son, Inc. did not operate a junkyard duringthe relevant time period is not supponed by any factual evidence in the record.

6


7/10

Whether or not a "junkyard" was in continuous existence is a legal conclusion to bedraVlIl on factual assenions and application of the definition thereof provided by theJunkyard Ordinance.1 This defini tion is' extremely broad and must be strictly construedin favor of the propeny owner. See, Matter of Allen vs. Adami, 39 NY 2d 275, 277(1976). More imponant, however, is consideration of the evidence given by membersof the public. I t is noteworthy that each of these members of the public testifiedconcerning a legal conclusion unsupported by any factual statements. The statementof Mrs. Anneno that "But AH. Todd was a law abiding business, and in 1974 the law

said you must have a pennit from your village to keep a couple of junk vehicles. Theydid that. And I don't feel that because they kept the law and because they kept somesalvage vehicles in the back, that this automatically entitles anyone to say that A H.Todd was a junk is illustrative of the failure of these witnesses and the Board toconsider the applicable definition. The testimony of the witnesses for petitioner, incontrast, consists of facts and does not rest on the assertion of a legal conclusion that ajunkyard did not exist. Instead, the facts testified to by these witnesses related to the

1 The Junkyard Ordinance, Sec t ion 2 A. de f ine s Junkyard as :Any lo t o r a rea of land, with o r without bui ld ings , used fo r o roccupied by the s to rage , keeping, dumping o r abandonment of junk,inc luding scrap meta l s and o ther sc rap waste paper , rags and usedo r sa lvaged by the demol i t ion , dismant l ing , abandonment o r sa le ofbroken down o r damaged machinery and/or household app l i ances , o r ofabandoned, used wrecked o r broken-down o r damaged motor veh ic l e swhich a re not in tended for fu r the r l ega l use on th e highway, o rpar t s of o r from such motor veh ic les .

7


8/10

defmition of a junkyard. Any reliance that the Board placed on the failure of thesewitnesses to specifically express a legal conclusion is irrational, unreasonable anddispenses \\rith the fact finding function of the Board. The witnesses in opposition didnot express any facts upon which the Board could base any findings of fact orconclusions of law and to conclude, based upon this evidence, that A.H. Todd did notoperate a junkyard has no rationale basis in fact. As this court has previously statedon two occasions, one of the legal issues to be addressed in this matter is whether thenonconfonning use was ever abandoned. Generally speaking, abandonment of a use is

more than the temporary ceSsation of operations, or even their prolongeddiscontinuance. The cessation of the use must be complete. See, Marzella ys, Munroe,69 NY 2d 967 (1987); Concerned Citizens of Montauk. Inc. vs. Lester, 62 AD 2d 171(2d Dept. 1978); Baml Realtyvs. State of New York, 35 AD 2d 857 (3rd Dept. 1970);City of Binghamton vs. Gartell, 275 AD 457 (3rd Dept. 1949). To establishabandonment of a nonconforming use, the facts must demonstrate complete nonuse andan intent to abandon the nonconforming use. See, Ellentuckvs. Klein, 570 F2d 414 ,2dCir 1978); Matter of Putnam Armonk vs. Town of Southeast, 52 AD 2d 10 (2nd Dept.1976). vVithout some overt act indicative of an intent to abandon the use, the merepassage of time, regardless of how long, is insufficient to establish abandonment. Deyovs. Hagen, 41 AD 2d 790 (3rd Dept. 1973). Here, there is no evidence upon which onecould rationally conclude that the nonconforming use was abandoned by A. H. Todd,

8 i:IiI


9/10

Inc. following its termination of the automobile business. In fact, Mr. Todd expresslystated that he purposefully left the vehicles on the property to preserve the status ofjunkyard and nonconforming use. As hereinbefore stated, the absence of the requiredlicense does not mandate a finding of abandonment although it may constitute someevidence of an intent to abandon. Nevertheless, there is no evidence in this record orpresented to the Board upon which it can be found that the nonconforming use was everabandoned. This is not a matter of weighing the credibility of the various witnesses, rT>


10/10

This decision shall constitute th e order of the court. Let judgment enteraccordingly.

ENTER:

-

Dated at Delhi, New YorkMay 29, 1998This motion has been decided based upon the following papers filed herein:1. Order to Show Cause dated March 25. 1998, Petition dated March 25, 1998,

with Exhibits attached, and Memorandum of Law, all previously filed in the DelawareCounty Clerk's Office on March 25, 1998. "2. Answer of the respondents dated April 1, 1998.3. Affidavit in Opposition of John Granito, sworn to April 1, 1998, with Exhibits

attached.

4. Cenified transcript of record.

10

Documents

New York State Delaware County Supreme Court Decision about VWParts junkyard in Fleischmanns, 1998