(DOWNLOAD) "Baml Realty v. State New York" by Supreme Court of New York ~ Book PDF Kindle ePub Free
eBook details
- Title: Baml Realty v. State New York
- Author : Supreme Court of New York
- Release Date : January 05, 1970
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
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[35 A.D.2d 857 Page 857] The subject parcel was zoned residential but for years a building thereon housed a foundry, a pre-existing nonconforming
use. About 1960 the operating corporation moved its manufacturing to a new location but, allegedly, continued some operations
at the old site. The Court of Claims found that the highest and best use was residential, but based its award of $5,050 on
the claimed nonconforming commercial use, and rejected the contention that the building could be converted into a home. The
State was awarded $3,950, on its counterclaim, the difference between claimant's award and a $9,000 "partial" prepayment.
Essential to the lower court's finding of residential highest and best use was a determination of abandonment of the nonconforming
use. Although in the absence of special ordinance provision, intent to abandon a nonconforming use coupled with actual discontinuance
of the operation must be found in order to cause the loss of the right to maintain a nonconforming use (City of Binghamton
v. Gartell, 275 App. Div. 457), under an ordinance such as that in Peekskill providing that the nonconforming use shall not
be re-established if discontinued for over one year, the nonconforming use which has ceased for the prescribed reasonable
period may not be resumed, irrespective of the absence of intent to abandon (Village of Spencerport v. Webaco Oil Co., 33
A.D.2d 634; Matter of Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, affd. 279 App. Div. 795). A discontinuance connotes
a complete cessation (cf. City of Binghamton v. Gartell, supra, p. 460) so that a minimal nonconforming function, of itself,
would not constitute an abandonment. The decision under review lacks a statement of the essential facts on which the judgment
is founded (cf. Conklin v. State of New York, 22 A.D.2d 481). The before value and the total damage figures found by the court
are noted to be the same as those supplied by the State's appraiser for a commercial use, if permitted, but the court, having
found the highest and best use to be residential, could not exceed the valuations furnished for such use, in the absence of
an adequate explanation [35 A.D.2d 857 Page 858]