At an lAS Term of the Supreme Court of the State of New York; held in and for the County Of Otsego,

at 242 Main Street, Oneonta, New York, on the 3 rd day of April, 1998. STATE OF NEW YORK SUPREME COURT COUNTY OF DELAWARE In the Matter of
V. W .. PARTS, INC.,

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

1.

DECISION & ORDER Index No. 98-203 R/I No. 98-0 I 00

-againstTHE VILLAGE OF FLEISCHMANNS, NEW YORK, Respondent.

APPEARANCES: GERSTENZANG, HICKEY &GERSTENZANG, ESQS. (PETER J. HICKEY, ESQ., Of Counsel) Attorneys for Petitioner 41 State Street Albany, New York 12207 DONALD ZEE, P. C. Attorneys for Respondent 1621 Central Avenue Albany, New York 12205

This Article 78 proceeding represents the third time that these parties have been before the court concerning petitioner's operation of a "junkyard" in the Village of Fleischmanns. By resolution adopted March 9, 1998, the Village Board denied

petitioner's application for renewal of its junkyard license. This resolution resulted from a public hearing held on February 28, 1998 by the Village Board for the purpose of determining 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 should be treated as an original application for a "junkyard" pennit.
'i.

The petition seeks a

judicial declaration that the "junkyard" was in existence on the date of adoption of the Junkyard Ordinance and that it has been in continuous operation since that time and a direction that respondent allow the petitioner to present evidence of compliance with the balance of the criteria necessary to the renewal of the license. The Village of Aeischmanns adopted Local Ordinance #68 in 1973, commonly known as the Junkyard Ordinance, effective on or about January 1, 1974.
It is

undisputed that A.H. Todd & Son, Inc. conducted an automobile business on a parcel of property within the Village prior to enactment of the Junkyard Ordinance. It is also undisputed 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

location.

In 1992, AH. Todd & Son, Inc. sold the premises which \\'ere thereafter

leased to the petitioner herein. The evidence in this record shows that junk vehicles and the like were left on the site to preserve the non-conforming use so that any subsequent purchaser could continue the established junkyard. Consequently, the junkyard pennit was not renewed by AH. Todd & Son, Inc. after the cessation of its automobile business. In a similar proceeding in 1993, petitioner sought an order compelling the respondent to issue a renewal permit based upon an application for permit made on June 28, 1993. In that proceeding, the record establishea that the Village had issued a pennit to 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 was obtained after May 31, 1990, the non-conforming use ceased and any new permit must be considered as an application for an original junkyard permit. The coun denied the petition since it was apparent that the respondent had made no findings of fact with respect to the abandonment of the non-confonning use which could be reviewed by the court. 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 and desist order. Then, by letter dated December 21, 1993, petitioner submitted another application for renewal of the previously issued junkyard pennit. The record does not demonstrate what action, if any, the Village took v'lith respect to this latter application

Notwithstanding the application of December, 1993 and the apparent inaction of the Village with respect thereto, the petitioner filed another letter application on September 9, 1997 requesting renewal of the junkyard pennit.
It is this application which

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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 initial

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application for a junkyard pennit as opposed to the renewal of a previously issued permit 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 issued for the subject premises for the years 1990-1991 and 1991-1992; (b) that the renewal application of petitioner of 1993 was rejected; (c ) that the credible evidence at the public hearing establishes that AH. Todd & Son, Inc. did not operate a junkyard; (d) that none of the witnesses for petitioner specifically testified that AH. Todd & Son, Inc operated a junkyard; and (e) that there was conflicting testimony regarding the extent that A.H. Todd & Son, Inc. operated a junkyard. Based upon these findings of fact, the Village Board concluded that the petitioner had failed to meet its burden of proof establishing it was entitled to a renewal of its pennit. VVhile it is abundantly clear from the first two Article 78 proceedings between these panies that the issue to be determined at the hearing was whether the nonconforming use was abandoned by A.H. Todd & Son, Inc. during the years 1990-1991

and 1991-1992, and despite the stark clarity of the issue, the parties seem to have framed the issue as being whether or not the junkyard has been in continuous operation on 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, Board Qf EdUcation, 34 NY 2d 222, 231 (1974). Applying this standard to the matter before

the 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, in its findings of fact, made no reference to these permits or their legal Significance. vVhile the doctrine of estoppel generally has no application to governmental bodies when acting in 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 prevent manifest injustice. Freeport ys. Sanders, 121 AD 2d 834 (2d Dept. 1986 ), appeal dismissed 68 !\'Y 2d 907 (1986); Landmark Colony vs. Board of Supervisors, 113 AD 2d 741 (2nd Dept. 1985). Here, to allow the Village Board to ignore the consistent and continuous issuance of renewal permits to A.H. Todd & Son, Inc. for a period of 16
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years is manifestly unfair

to

the petitioner. Moreover, although there is no evidence in

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the present record, the Village Board apparently ignored its o\'\'n records which reflect that a permit was issued to this petitioner covering September, 1992
to

May, 1993.

Second, the record does not contain any evidence that the 1993 renewal application was rejected by the Village. In fact, it appears that the Village took no action with respect
to

the application for renewal made on December 21, 1993. This

inaction resulted in petitioner operating its business without a permit. Contrary to the position 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 AD 2d 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), the coun held that an owner's failure to procure a cenificate of occupancy for a nonconforming building does not render the use illegal and bar the continuation of the nonconforming 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 not

dispositive of the issue of continuous operation or abandonment of a nonconforming use. The finding of fact that A.H. Todd & Son, Inc. did not operate a junkyard during the relevant time period is not supponed by any factual evidence in the record.

Whether or not a "junkyard" was in continuous existence is a legal conclusion to be draVlIl on factual assenions and application of the definition thereof provided by the

Junkyard Ordinance.1 This defini tion is' extremely broad and must be strictly construed
in 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 members of the public. It is noteworthy that each of these members of the public testified concerning a legal conclusion unsupported by any factual statements. The statement of 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. They did that. And I don't feel that because they kept the law and because they kept some salvage 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

to

consider the applicable definition.

The testimony of the witnesses for petitioner, in

contrast, consists of facts and does not rest on the assertion of a legal conclusion that a junkyard did not exist. Instead, the facts testified
to

by these witnesses related to the

1 The Junkyard Ordinance, Section 2 A. defines Junkyard as: Any lot or area of land, with or without buildings, used for or occupied by the storage, keeping, dumping or abandonment of junk, including scrap metals and other scrap waste paper, rags and used or salvaged by the demolition, dismantling, abandonment or sale of broken down or damaged machinery and/or household appliances, or of abandoned, used wrecked or broken-down or damaged motor vehicles which are not intended for further legal use on the highway, or parts of or from such motor vehicles.

defmition of a junkyard. Any reliance that the Board placed on the failure of these witnesses
to

specifically express a legal conclusion is irrational, unreasonable and The witnesses in opposition did

dispenses \\rith the fact finding function of the Board.

not express any facts upon which the Board could base any findings of fact or conclusions of law and to conclude, based upon this evidence, that A.H. Todd did not operate a junkyard has no rationale basis in fact.
As this court has previously stated

on two occasions, one of the legal issues to be addressed in this matter is whether the nonconfonning use was ever abandoned. Generally speaking, abandonment of a use is more than the temporary ceSsation of operations, or even their prolonged discontinuance. 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 establish

abandonment of a nonconforming use, the facts must demonstrate complete nonuse and an intent to abandon the nonconforming use. See, Ellentuckvs. Klein, 570 F2d 414 ,2d Cir 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 mere passage of time, regardless of how long, is insufficient to establish abandonment. Deyo vs. Hagen, 41 AD 2d 790 (3rd Dept. 1973). Here, there is no evidence upon which one could rationally conclude that the nonconforming use was abandoned by A. H. Todd,

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Inc. following its termination of the automobile business. In fact, Mr. Todd expressly stated that he purposefully left the vehicles on the property to preserve the status of junkyard and nonconforming use. As hereinbefore stated, the absence of the required license does not mandate a finding of abandonment although it may constitute some evidence of an intent to abandon. Nevertheless, there is no evidence in this record or presented to the Board upon which it can be found that the nonconforming use was ever abandoned. This is not a matter of weighing the credibility of the various witnesses,
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as the Village Board would have the court believe, but instead, is a realistic evaluation of the probative worth of all of the evidence given &y the witnesses. The conclusions reached suggest that the Board failed to consider its responsibility to give consideration to probative value in addition to credibility. Based upon the record before the court, there is no rational basis in fact upon which any reasonable person or body could conclude that the "junkyard" established upon the premises of A. H. Todd, Inc. was not established prior to the enactment of the Junkyard Ordinance, existed on the date of the enactment and was in continuuus operation as a nonconforming use thereafter, never having been abandoned at any time. Consequently, the petition is granted and the Board is directed to hear petitioner's evidence of the criteria necessary to obtaining renewal of its junkyard permit within 30 davs of the date of this decision.

This decision shall constitute the order of the court. accordingly. Let judgment enter

ENTER:

Dated at Delhi, New York May 29, 1998 This 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 Delaware County 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.

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