Town that approved property's current use cannot deny building permit based on that use.(Recent Court Decisions)

After a town approved a property's use as a waste processing facility, later denying a building permit based on the same "offensive use" was unconstitutional, according to the Appellate Division of the New York Supreme Court.

Serota Brown Court II, LLC (Serota) operates a recycling facility for construction and demolition debris in the town of Hempstead. In 2005, Serota sought a permit to increase the height of its building to comply with an order from the state conservation department to operate the facility completely indoors. Although the facility was zoned industrial, the town denied the permit on the grounds that it constituted a "noxious or offensive" use in violation of the building ordinance. Serota appealed to the town zoning board of appeals.

While that appeal was pending, the town amended its zoning ordinance to require a special use permit for facilities processing construction debris. Serota amended its appeal to seek a special use permit in addition to the building permit, which were both denied by the board of appeals. The board's decision was reversed by the trial court, and the town was ordered to issue a building permit. The town appealed.

On review, the appellate court first noted that the town had approved the property's use as a processing facility before it was sold to Serota. Consequently, the town was prohibited from later determining that the facility was an "offensive" use, according to the court. The court found no other grounds for the town to deny the permit and, therefore, that the denial was arbitrary and unconstitutional.

Further, the court held that Serota was not required to obtain a special use permit because its facility constituted a preexisting nonconforming use when the town enacted the ordinance at issue. The court concluded that Serota was entitled to the building permit and to operate without a special use permit. The trial court decision was affirmed.

Serota Brown Court II, LLC v. Town of

Hempstead

New York Supreme Court, Appellate

Division

May 5, 2009

2009 WL 1238229 (N.Y. App. Div. 2000)

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