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Acquiescence to Nonconforming Use Does not Render It Legal

The Appellate Division Second Department upheld the determination of a zoning board finding that maintaining a “hospice” for terminally ill animals in a home over a period of years was neither a customary accessory use nor a legal non-conforming use. In Matter of Marino v. Town of Smithtown, the court reversed the Supreme Court’s granting of the petition finding that the lower court had improperly “substituted its judgment for that of the Zoning Board.”

The local zoning code specifically states that animal hospitals are not permitted in residential districts and that any use not specifically listed as a permitted use is not permitted. The court held that nonconforming uses “may not be established where, as here, the existing use of the land was commenced or maintained in violation of a zoning ordinance” and therefore “the Zoning Board was not estopped from enforcing the zoning code…by the Town’s apparent acquiescence over a period of approximately 13 years.” In addition, the court noted that comments made at a Town Board meeting by the supervisor and town attorney concerning the operation (apparently supporting the petitioner’s contentions) were outside the record of the zoning board and therefore those comments could neither be considered nor used to prevent the Zoning Board from enforcing the code.

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