Defendant, a resident of Woodhollow Court in the Village of Muttontown, New York is charged with violation of Village Code § 67-7K by maintaining a "driveway opening" without having obtained a permit and paid a "permit fee". Defendant admits that he is using the space involved for entry and egress to his property for large vehicles (e.g., delivery trucks, etc.) because the piers framing the gate to his general driveway are too narrow to allow such vehicles to pass through. But, defendant contends that the Village Code does not apply to him or is unenforceable against him because the alleged driveway was used for that purpose before the Code section was adopted; so that he has a "prior non-conforming use" which is grandfathered under the law.

The case was tried to the Court without a jury. This Opinion and Order constitutes the Court's findings of fact and conclusions of law, as well as the disposition of the case.

Defendant owns the property in question, and has lived there for 42 years [Trial Transcript at 39]. The People proved (with testimony and photographs), and defendant's son admitted on cross examination, that an opening in the stockade fence on defendant's property, adjacent to the piers framing defendant's paved driveway, has been used as another entrance to the property, like a driveway entrance [see, e.g., Tr. 40-42; Exs B and D]. But, defendant's son further testified, and the People's Code Enforcement officer agreed on cross examination, that use of that other entrance is necessary if large trucks are to be able to enter defendant's property, since the space between the piers on the sides of defendant's paved driveway is too narrow for such trucks [Trial Transcript at 31-32; Ex C]. Ingress by such trucks is necessary not only for convenience but also public health and safety [see, e.g., Tr. at 32: fire trucks; Tr. at 40, 41: cesspool cleaning, etc.].

Before defendant bought the property, its prior owner, a veterinarian, had used the entrance at issue "to open the property, he had trucks, old cars, that he had on the property" [Tr. at 40-41]. That use was continued when defendant bought the property [Id.]. Other evidence, including photographs of the property showing defendant's 32 years old daughter as a young girl [Def. Ex. E; Tr. at 44-46], corroborated such use as a second entrance for decades.

The People contend that the prior use of that portion of the property as a driveway entrance is not a defense because "it is well settled that estoppel cannot be invoked against a governmental [*2]agency or prevent it from discharging its statutory duties", citing Schorr v. NYC Dept. of Housing Preservation, 2008 NY Slip Op. 2083 and quoting Mtr. of NYS Med. Transporters Ass'n v. Peralies, 77 NY2d 126, 130. Nor, the People contend, is there a defense of laches because "a municipality . . . is not estopped from enforcing its zoning laws . . . by laches". Mtr of Parkview Assoc. v. City of New York, 71 NY2d 274, 282, cert. den, 488 US 801; City of Yonkers v. Rentways, Inc., 304 NY 499, 505. Defendant does not quarrel with that statement of law regarding estoppel and laches. Defendant's argument is not, however, based on those concepts.

Defendant relies on the use of the other entrance prior to and since the ordinance was enacted as a "prior non-conforming use". Defendant contends that that grandfathers the use from restrictions in an ordinance such as the one at issue here since the ordinance was enacted after the use was already being made and continued thereafter.

As explained in 12 NY Jur: Buildings, Zoning and Land Controls §317 at 450-60, "the term nonconforming use' means a use which lawfully existed prior to the enactment of a zoning ordinance although it does not comply with use restrictions applicable to the area in which it is situated." See, e.g., Toys R Us v.. Silva, 89 NY2d 411, 417; Spika v. Town of Inlet, 8 AD3d 81, 814.^[FN1] In the other words, a property owner's prior use which was legal when instituted remains legal despite the enactment of an ordinance making it illegal as long as the use was continued and not abandoned in the interim. Town of Somers v. Camarco, 308 NY 537, 541.^[FN2]

The doctrine is premised on the constitutional sanctity of one's property, and thus constitutes a constitutionally-protected right of the owner of property. Toys R Us, 89 NY2d at 421; Mtr of Allen v. Adami, 39 NY2d 275, 277; Mtr of Nassau (Cohen), 34 NY2d 412, 414 ("constitutional interests . . . are the compelling instruments in the creation of a nonconforming use"). That constitutional right is a "vested right" which is superior to and overrides the policy of the zoning ordinance and the fact that the use conflicts with the underlying purpose of the ordinance. Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 NY3d 88, 97, affg and modg, 55 AD3d 1228, 1230; In Re South of Ann Drive, 34 AD2d 412, app dism, 27 NY2d 744; 12 NY Jur: Buildings, Zoning and Land Controls §317 at 460. Hence, zoning laws limiting the use of one's property "are strictly construed against the enacting municipality". Spika, 8 AD3d at 813; Mtr of Sposato v. Zoning Bd of Appeals, 287 AD2d 639.

But, non-conforming uses also are disfavored; so that the property owner has "a heavy burden" of showing that his use is the same particular use which predated the zoning ordinance. [*3]Incorporated Village of Old Westbury v. Alljay Farms, 64 NY2d 798, 800, affg as modified, 100 AD2d 584; Mtr of Off Shore Rest. Corp. v. Linden, 30 NY2d 160, 164. See also Toys R Us, 89 NY2d at 422. That is a sine qua non of the prior nonconforming use exception to the zoning ordinance. A use, even one of financial importance, which did not exist when the restrictive ordinance was adopted does not warrant or receive the protection of the doctrine. Buffalo Crushed Stone, 13 NY3d at 98 ("a party advancing a prior nonconforming use exception to a zoning ordinance must establish specific actions constituting an overt manifestation of its intent to utilize the property for the ascribed purpose at the time the zoning ordinance became effective"); In re Carrier v. Town of Palmyra Zoning, 30 AD3d 1036, 1037-38, app and rearg den 30 AD2d 1036, lv to app den, 8 NY3d 807; Mtr of Seitz v. Humenik, 271 AD2d 449.

These competing policies as to nonconforming uses are reconciled by balancing them in the particular situation. Thus, the Court of Appeals explained in Buffalo Crushed Stone, 13 NY3d at 98, "courts strive to see that the public interest in eliminating nonconforming uses at a legally opportunistic time is placed in reasonable balance with the owner's interest in not having a property investment abruptly altered or terminated'", quoting Mtr. of Pelham Esplande v. Board of Trustees, 77 NY2d 66, 72.

For example, in Incorporated Village of Old Westbury, 64 NY2d 798, 800, the Court of Appeals affirmed the decision of the Appellate Division, Second Department, that the property owner had failed to show that its 16.9 acre property had previously been used for horse breeding and raising horses, and thus was excepted from a zoning ordinance restricting commercial horse farms. Both courts found it to be insufficient that, prior to the ordinance, horses previously maintained on the property had been used there to train riders (an arguably commercial use), distinguishing such a use from breeding and raising horses. However, the Court of Appeals modified the Appellate Division decision to allow the property owner to continue to maintain race horses on the property, finding that that had been "an accessory use prior to the enactment of the present ordinance" and thus an excepting prior nonconforming use.

In Buffalo Crushed Stone, 13 NY3d at 99-102, the Court of Appeals held, that some of the parcels on the plaintiff's property being used for quarrying were excepted from an ordinance restricting the use of unexcavated property because there was evidence of substantial prior use as a quarry. The Court further held, Id. at 102-04, that contiguous other parcels were also entitled to that protection from the zoning ordinance where the owner showed its prior plans also to use them for quarrying, since that proved its intent to make that logical extension of the prior use.

However, the constitutional protection afforded a property owner against an ordinance which would restrict its prior use of the property is limited to a showing that the restriction is "unreasonable in terms of necessity" or "diminish[es it] in value . . . such as to be tantamount to confiscation". Ilasi v. City of Long Beach, 38 NY2d 383, 388, quoting Mtr. of Golden v. Planning Bd, 30 NY2d 359, 381, app dism, 409 US 1003.

As to that point, the People rely on the statement in People v. Miller, 304 NY 105, 109, that "existing nonconforming uses will be permitted to continue, despite the enactment of a prohibitory zoning ordinance if, and only if, enforcement of the ordinance would, by rendering valueless substantial improvements or businesses built up over the years, cause serious financial harm to the property owner". The People contend that defendant has made only minimal, if any, improvements to the driveway opening, and that requiring him to obtain a permit will not cause defendant serious financial harm. In response, defendant argues that his nonconforming use is of financial importance to his property, and that, in any event, the People are reading that statement in Miller too broadly, [*4]since it was not addressed to the kind of use at issue here.

In view of the nature of the use here, there appears to be merit to defendant's contentions. To prohibit defendant from continuing its use will require him to take down the piers framing his driveway and alter the driveway itself, which will cause significant financial harm. Moreover, as later recognized in Ilasi, 38 NY2d at 388, nonconforming uses that are of necessity for reasons other than financial concerns are also protected. Accord Mtr of Golden, 30 NY2d at 381. Miller, 308 NY at 109, had discussed only incidental use of property for maintenance of pigeons as a hobby, not use that can be deemed necessary for the access to the property and for safety and health reasons. By contrast here, as explained above, the evidence at trial persuasively showed that defendant's use of the entrance to his property is necessary for large trucks whose entry is needed for public health and safety reasons.

Finally, the People misconceive the prior non-conforming use doctrine in also arguing that defendant's theory that long-time use renders a violation of the Village Code beyond the Village's enforcement powers "would mean that every such violation that went unnoticed for years would escape prosecution". The doctrine addresses and applies to the timing of a use and its importance to the property involved, not whether the use was noticed by the zoning authority when the zoning ordinance was enacted. It enforces a constitutional protection against an undue and unfair disenfranchising of a property right. In any event, here, there is no evidence that it went unnoticed; indeed, the use predating the ordinance was obvious to anyone who looked.^[FN3]

Giving due consideration to the foregoing legal standards and rationale and the evidence presented at trial, the Court concludes that defendant has and is entitled to a prior nonconforming use exception from the Village Ordinance permitting defendant's continued use of the portion of his property in question as another driveway entrance to the property, without having to apply for a permit. That comports with the facts and, the Court finds, is the appropriate balance of the competing interests of protecting the property owner's right in the use of his property and the Village's right to regulate property use pursuant to an overall zoning plan. Accordingly, the charge against the defendant is dismissed.

So Ordered. Enter.

Dated: April 19, 2011

Muttontown, NY

________________________________________

Martin I. Kaminsky

Village Justice