1982-04-27
OFFICE OF THE
~~\
~~~~
~.~~~~. . .
~. \ 1 k ,'~ ~~
~J;.,~w-~
~~.
, '
ZQNING .ADMINISTRATOR
TOWN OF WAPPINGER
TOWN HALL
WAPPINGERS FALLS. N. Y. 12590
TEL. 2g7-62ee
April 27, 1982
Jon Adams, Esquire
35 Market Street
poughkeepsie, NY 12601
RE: Mid-Hudson Auto Wreckers
Dear Jon:
I have completed a review of the ~ubject property and found that:
1. In 1955 Shapiro bought 30.25 acres from Popu1a and although the
property was represented on a tax map (#82 dated 11-1-63) it appears
its shape was quite different than that shown. I used as a comparison,
a copy of a section of a tax map, presented to the Zoning Board in
1972, which shows the property shape as it is today, according to the
1980 tax map.
The County appears to have made many corrections of area properties in
1972-1977 time period.
I had used the "incorrect" map as a basis for my conclusions that the
extent of the salvage yard had expanded into new. areas or lands than
existed in 1963. Since my discovery of the "error" ho\vever, I can now
accept that no "expansion" of the use has occured.
Therefore, in conjunction with the agreements made at Mr. Al Roberts'
office, with you, Mr. Shapiro and myself entitled "Memorandum of
. Disposition" (attached) and my site inspections on March 29, 1982 of the
salvage yard, I will recommend issuance of the license.
I have noted with a green marker in hash marks on the map on file (map
#82 - County Tax Map - Town of Wappinger dated 11-1-63) the area adjacent
to ~tt. Chain's property and on the northeast side of the existing stream
where Mr. Shapiro will never store any vehicles, per his assurance to me
during the March 29th visit. Also, on the same map I stripped the area
on the southern part of the property from Route 90 approximately 400' in
r-\ ~\~~
- - - - - - - - - - - - - - - - - - - - -x
In the ~~tter of the Review by the
Town Board of the Town of Wappinger
of the Denial by the TOwn Clerk of a
License by Mid-Hudson Auto Wreckers, Inc.
- - - - - - - - - - - - - - - - - - - - -X
~i,A tt) ~ '\~
W~~REAS, Mid-Hudson Auto Wreckers, Inc. has applied for a license
pursuant to an ordinance of the TOwn of Wappinger requiring licensing
of the activities and businesses of dealers in used auto parts and
WHEREAS, pursuant to the provisions of TONn Law section 137, the
Mid-Hudson Auto Wreckers, Inc. applied to the TOwn Board for a hearing
to review the denial of its application for a license and
WHEREAS, public hearings were conductec by the Tv-Nn Board of the
TOwn of Wappinger on several evenings and
WHEREAS, after receiving all the evidence offered for and agai.nst
the issuance of said license and after due deliberation thereon,
BE IT RESOLVED that the application for a license by Mid-Hudson Auto
Wreckers, Inc. is granted subject to its observance of the following
conditions:
1. No used vehicles of any description or other items of any
description shall be stored by the applicant \"ithin 50
feet of any property line of the adjacent property owner
Victor Chain.
2. The applicant shall provide and install permanent markers
to designate, with respect to the aajacent property of
Victor Chain, the 50 foot line beyo:1d ,.;hich no storage
activities will be permitted.
3. No stacking of cars will be permitted except that stack-
ing necessary for crushing of vehicles, and in such
instance, stacking shall not continue for more that
15 clays.
4. Fire lanes shall be provided and maintained in accordance
with the provision of the ordinance regulating used parts
dealers, said fire lanes to be designated and maintenance
standards to be provided by the Building Inspector and
Zoning Administrator of the Town of Wappinger.
5. The applicant shall give notice to the Zoning Administrator
as to those dates when cars are being crushed as soon as it
receives notice from the company performing crushing operations
of the dates the same will be performed.
6. All crushing operations are to be undertaken in such a manner
aG not to annoy adjacent property owners and residentsa
7. Any automobiles, trucks, debris, or any other items of any
description presently being stored within 50 feet of the
Chain boundary line shall be removed.
8. That the applicant shall continually maintain and improve
the evergreen growth alo~g the property line of the adjacent
property of Chain and take those ste?s to promote the growth
of evergreens so as to provide a natural screening along
said line.
9. A chain link fence a~o~g the property line of Victor Chain
shall be permitted to remain as situated.
BE IT FURTIlliR RESOLVED that all the conditions heretofore specified
shall be binding upon the applicant, its successors and assigns during
1978 and during the subsequent periods for which a license is obtained by
it, and
BE IT FURTHER RESOV/ED that the conditions heretofore specified shall
be complied with no later than .July 1st, 1979, and
BE IT FURTHER RESOLVED THAT the applicant shall conform its conduct
within those standards specified by all local laws and ordinances of the
Town of Wappinger, and
BE IT FURTHER RESOLVED that the Town Clerk shall issue a license to
the applicant for a period of one year retroactive to the date of his
application for a license upon being notified by the Zo~ing Administrator
that the conditions hereto for~ set forth have been complied with.
ATTORNEY
AND
COUNSELOR AT LAW
~?UU!#g~fi
37 NORTH STREET
MIDDLETOWN, NEW YORK 10940
TEL. (914) 343-2155
FAX. (914) 343-2621
July 2, 1999
Albert P. Roberts, Esq.
Vergilis, Stenger, Roberts & pergament
1611 Route 9
Wappingers Falls, NY 12590
r
RE: A.W. SCRAP PROCESSORS, INC.
Dear Mr. Roberts:
Enclosed are some legal precedents you may want to consider.
First, in Town of Orangetown v. Magee, where the town issued
a building permit and revoked it after the landowner acted in
reliance on it. My clients received clearance letters and have
expended in excess of $400,000.00 for this property and business.
Second, in New York Zoning and Practice, Section 6.24 (non-
conforming use), change in volume of use, pages 246, 247, and 248.
I believe that answers the question of volume. It does not violate
the non-conforming use law.
Third, the town's permit ordinance seems to cover the "white
goods" .
Fourth, I am looking for that recent case which has a
definition of "change: in the building/zoning code and what that
means.
VW;.u
THOMAS G. FARRELL
TGF/ld
Encl.
cc: A.W. Scrap Processors, Inc.
TOWN OF ORANGETOWN v. MAGEE 21
88 N.Y.2d 41 Cite as 643 N.Y.S.2d 21 (CI.App. 1996)
[2] Absent a reasoned explanation for pl~oceedings in accordance with the opinion
abandonment. of the State Social Services herein.
Department's expressed original reading of
the regulation at the time of promulgation
and adoption here of a diametrically opposite
interpretation, the agency's change of posi-
tion was arbitrary and capricious and cannot.
stand.
.lJ9"From the policy considerations embod-
ied in administrative lu\\", it follov,'s that
If
g
e
*
when an agency determines to alter its
prior stated course it must set forth its
reasons for doing so. Unless such an ex-
planation is furnished, a reviewing court
will be unable to determine whether the
agency has changed its prior interpretation
of the law for valid reasons, or has simply
overlooked or ignored its prior decision
· · *. Absent such an explanation, failure
to conform to agency precedent will, there-
fore, require reversal on the law as arbi-
trary" (Matter of Field Delivery Servo v.
Roberts, 66 N.Y.2d 516, 520, 498 N.Y.S.2d
Ill, 488 N.E.2d 1223).
n
!-
:{
r
e
The United States Supreme Court similarly
held in Gardebring V. Jenkins 485 U.S. 415,
430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d 515 that
an administrative agency's interpretation of
its own regulation is not to be followed if an
"alternative reading is compelled by the reg-
ulation's plain language or by other indica-
tions of the Secretary's intent at the time of
the regulation's promulgation" (emphasis
supplied).
For all the foregoing reasons, the order of
the Appellate Division should be reversed,
with costs, and the matter remitted to Su-
preme Court, New York County, with di-
rections to remand to the State Department
of Social Services for fmther proceedings in
accordance with this opinion.
KAYE, C.J., and SIMONS, TITONE,
BELLACOSA, SMITH and CIPARICK, JJ.,
concur.
Order reversed, with costs, and matter
remitted to Supreme Court, New York Coun-
ty, with directions to remand to the State
Depaltment of Social Services for further
665 N.E.2d 1061
88 NY~<l 41
-LuTOWN OF ORANGETOWN, Appellant,
v.
John F. MAGEE et aJ., Respondents.
COUlt of Appeals of New York.
April 30, 1996.
Town brought action to compel devel-
oper to remove temporary building, after
developer's building permit to constl-uct in-
dustrial building was revoked by town's
building inspector. Developer 'counter-
claimed for reinstatement of pelmit and for
damages under ~ 1983. The Supreme
Court, Rockland County, Robert J. Stolarik,
J., 156 Misc.2d 881, 594 N.Y.S.2d 951, en-
tered judgment for developer on its coun-
terclaims, and town appealed. The Su-
preme Court, Appellate Division, 215
A.D.2d 469, 626 N.Y.S.2d 511, affirmed as
modified, and subsequently granted town
leave to appeal with certified question, 218
A.D.2d 733, 631 N.Y.S.2d 166. The Court
of Appeals, Simons, J., held that: (1) devel- .
oper was entitled to reinstatement of build-
ing permit, having established vested right
in planned constmction; (2) developer's
~ 1983 claim that revocation of building
permit by town building inspector denied it
substantive due process because it was arbi-
trary and capricious was ripe for review;
(3) developer. established that protectable
propelty interest existed, by' establishing
that right to develop land had become vest-
ed under state law; (4) evidence supported
trial COUlt's conclusion that inspector's revo-
cation of permit was arbitrary and capri-
ciOllS because it was without legal justifica-
tion motivated entirely by political concerns;
(5) actions of inspector could be imputed to
22
''',
643 NEW ,YORK SUPPLEMENT, 2d SERIES
town for purposes of ~ 1983 liability; and
(6) there was no basis to interfere with
, ~' 1983 damages award.
Order of Appellate Division affirmed;
certified question answered in the affirma-
tive.
1. Zoning and Planning e=>465
Vested right in development can be ac-
quired when, pursuant to legally issued per-
mit. landowner demonstrates commitment to
purpose for which permit was granted by
effecting substantial changes and incurring
substantial expenses to further development;
neither issuance of permit, nor landowner's
substantial improvements and expenditures,
standing alone, will establish such right.
2. Zoning and Planning e=>469
Developer was entitled to reinstatement
of building permit for construction of indus-
trial buildil'lg, in conformity with zoning ordi-
nances in effect at time of revocation of
permit, 'where permit was legally issued, de-
.veloper had sufficiently committed land to
use authorized by permit prior to revocation,
and permit was revoked for unlawful reasons.
3. Civil Rights e=>206(1)
Municipalities are "persons" subject to
suit under ~ 1983 for deprivation of c,onstitu-
tionally protected rights caused by actions
which implement or execute policy state-
ment, ordinance, regulation, or decision offi-
cially adopted and promulgated by municipal
officers. 42 U.S.C.A. ~ 1983.
See publication Words and Phrases
for other judicial constructions and def-
initions.
4. Civil Rights e=>206'(2.1)
Municipality sued under ~ 1983 may not
be held vicariously liable ,under doctrine of
respondeat superior for employing careless
tort-feasor; rather, injury must arise from
acts of municipal officers or employees in
course of executing municipal policy or cus-
tom. 42 V.S.CA ~ 1983. '
5. Civil Rights e=>206(3)
Municipal liability may be imposed un-
der ~ 1983 for a single act, so long as it is act
88 N.Y.2d 41
of official authorized to decide policy in that
area. 42 U.S.CA ~ 1983.
6. Civil Rights e=>130
In context of land qse, ~ 1983 provides
protection against municipal actions which
violate lando\fmer's rights under just com-
pensation clause of Fifth Amendment or due
process clauses of Fifth and Fourteenth
Amendments; under the former, claimant
must establish that municipal action amount-
ed to a taking 'W;thout just compensation.
V.S.C.A. Const.Amends. 5, 11; 12 V.S.C.A.
~ 1983.
7. Civil Rights e=>110.1
Civil rights claims against municipality
are not justicialJle under * 1983 until munici-
pality has al1'ived at a definitive position on
issue that inflicts an actual, concrete injury;
requirement reflects reluctance of courts to
impose liability upon municipality unless lia-
bility arises from acts which municipality has
officially sanctioned or ordered. 42 V.S.C.A.
~ 1983.
8. Civil Rights e=>209
Substantive due process claim under
~ 1983 challenging land use decision as arbi-
trary and capricious is ripe for review when
there has been final decision; decision must
be final to be reviewable, but it is not neces-
sary that landowner pursue administrative
remedies to determine how regulation in
question applies to property, or that land-
owner avail himself of state procedures for
determining compensation; finality require-
ment is concerned \vith whether official au-
thorized to make determination has arrived
at decision that inflicts injury. V.S.C.A.
Const.Amend. 14; 42 V.S.C.A. * 1983.
9. Civil Rights e=>209
Deternlination by town's building inspec-
tor revoking developer's building permit was
final, and developer's counterclaim under
~ 1983 seeking damages on ground that rev-
ocation was arbitrary and capricious in viola-
tion of substantive due process was ripe for
judicial review, notwithstanding that develop-
er did not appeal revocation to town zoning
board of appeals; under' town's ordinances,
inspector was initial decision maker vested
by law with exclusive and unfettered authori-
88 N.Y,2d 46
ty to decide l'
clearly did so v
halted work or
Amend. 14; 42
town, New York
10. Civil Rights
To succeed
ant to ~ 1983, (
privation of pro!
one acting une
V.S.C.A. ~ 1983.
11. Constitutior
In order to I
ty interest in bu
to show more th:
to retain permit
developer had to
or local law, it ha
ment. V.S.C.A. I
12. Constitution
Developer e:
erty interest in 1
issued and rev(
rights to develo]
under New Yor~
unquestionably \1
future authorizat
project, and to\\7
tion of continw
V.S.CA Const.A
13. Constitution;
Due process
from arbitrary or
destructive of co
V.S.CA Const.AI
14. Civil Rights (
Constitution;
Zoning and f
Developer su
stantive due proCI
suant to ~ 1983,
spector's arbitraJ~
of building permi
justification and n
cal concerns. V.S
15. Civil Rights <1
Town buildirlj
capricious revoca!
f'
~,
.J'
41
Jat
88 N.Y.2d 46
TOWN OF ORANGETOWN v. MAGEE
Clleal643 N.Y.S.2d 21 (Ct.App: 1996)
23
ty to decide revocation question, and he
clearly did so when he revoked permit and
halted work on project. U.S.C.A. Const.
Amend. 14; 42 U.S.C.A. ~ 1983; Orange-
town, New York, ch. 43, ~ 8.222.
10. Civil Rights <P130
To succeed on claim for damages pursu-
ant to ~ 1983, claimants must establish de-
privation of protectable property interest by
one acting under authority of law. 42
U.S.C.A. ~ H183.
es
ch
n-
le
th
nt
,t-
n.
<\.
11. Constitutional Law e->277(1)
In order to establish protectable proper-
ty interest in building permit, developer had
to show more than mere expectation 01' hope
to retain permit and continue improvements;
developer had to show that pursuant to state
or local law, it had legitimate claim of entitle-
ment. U.S.C.A. Const.Amend. 14.
12. Constitutional Law e->277(1)
Developer established protect able prop-
erty interest in building permit which town
issued and revoked, by establishing that
rights to develop land had become vested
under New York law; moreover, developer
unquestionably would have received limited
future authorizations necessary to complete
project, and town engendered clear expecta-
tion of continued enjoyment of permit.
U.S.C.A. Const.Amend. 14.
13. Constitutional Law e->278(l.3)
Due process assures right to be free
from arbitrary or irrational municipal actions
destructive of cognizable property interest.
U.S.C.A. Const.Amend. 14.
14. Civil Rights e->130
Constitutional Law e->278.2(2)
Zoning and Planning e->469
Developer successfully established sub-
stantive due process claim for damages pur-
suant to ~ 1983, based on toym building in-
spector's arbitrary and in'ational revocation
of building permit, which was without legal
justification and motivated entirely by politi-
cal concerns. U.S.C.A. Const.Amend. 14.
:y
i-
n
r;
o
l-
s
L.
I'
15. Civil Rights <i?206(3)
Town building inspector's arbitrary and
capricious revocation of building permit, in
violation of substantive due process, could be
imputed to town for purposes of liability
under ~ 1983; town zoning code, which nec-
essarily reflected town policy, vested inspec-
tor alone with authority to revoke. building.
permits, and thus inspector ,impfemented
town policy. U.S.C.A. Const.Amend. .I4j 42.
U.S.C.A. ~ 1983; Orangetown, New York,
ch. 43, ~ 8.222.
16. .Stipulations <i?3
.'
Parties to civil dispute are free to chart
their own ~ourse and, unless public' policy i~
affronted, they may stipulate way controver-
sy is to be l:esolved 01' how damages are tp
be computed without interference by courts.
17. Civil Rights <i?274
There was no basis to interfere ~th
award of damages to developer who pre-
vailed on ~ 1983 claim against town based'o'n
arbitrary and capricious revocation of build-
ing permit; parties. agreed that damages
could be measured by implementing Wheeler
formula, and use of Wheele'f formula did not
affront public policy; moreover, town stipu-
lated to values for building and land before
and after revocation, difference between the
two numbers, the equity ratio and the mar-
ket rate of return, and court determined
other values based upon the evidence.
~Patrick J. Rohan and John P. Healy,
Orange burg, for appellant.
..1uDorfman Lynch & Knoebel, Nyack (Den-
nis E.A. Lynch and Burton I. Dorfman, of
counsel), for respondents.
...LwOPINION OF THE COURT
SIMONS, Judge.
This appeal involves a zoning dispute in
which the courts below have found that plain-
tiff Town of Orange town Wl'ongfully revoked
defendants' permit to develop real property
in the Town. Defendants have obtained in-
junctive relief restoring the building permit
and an award of substantial damages on a 42
U.S.C. ~ 1983 cause of action. We now at'-
finn.
24
643 NEW YORK SUPPLEMENT, 2d SERIES
I
Defendant Bradley Industrial Park, Inc. is
the owner of 34 acres of land located in the
Town of Orangetown. It acquired the prop-
erty in 1979 to construct a 184,000 square
foot industrial building at an estimated cost
of $3 million. Defendants John and Patrick
Magee are the shareholders of the corpora-
tion. In 1980 defendants' plans for the im-
provement were approved and the Building
Inspector issued a permit. Defendants be-
gan clearing and developing the site short.ly
thereafter. The trial court found that defen-
dants spent over $4 million on the improve-
ments for the land and building before work
was halted by the Town.1
Although the permit was limited to "land
clearing, footings and foundations," the
courts below determined that the permit en-
titled defendants to construct the entire
building as long as the subsequent plans for
the walls, ceilings and electrical wiring com-
ported with the plans for the building already
approved by the Town's Building Inspector.
.AI; the work on the project progressed,
organized resistance to it developed within
the. community. Ultimately, the opposition
became 'so intense that the Town Supervisor
directed the Building Inspector to revoke the
defendants' permit and on July 25, 1985 he
did so. The Town subsequently amended its
Zoning Code to preclude construction of com-
mer-cial building~on defendants' land.2 At
trial, the Town offered a number of reasons
for- the revocation. The court concluded that
most were not authorized by the Town's ordi-
nances and none were supported by the evi-
dence. It found that the permit was revoked
solely to satisfy political concerns.
Defendants had erected a temporary build-
ing for use during the preliminary stages of
construction and after the permit was re-
voked, the Town instituted this action to
obtain an order compelling its removal. De-
I. In addition to the estimated cost of site and
building improvements, the trial court found that
defendants spent $250,000 on the purchase of
the original site, approximately $123.000 pur-
chasing additional acreage to satisfy Town re-
quirements for access to public roads; that in
response to community complaints about high-
way congestion, defendants spent approximately
$250,000 developing an alternate route over a
railroad crossing; defendants spent $100,000 for
88 N.Y.2d 46
fendants counterclaimed seeking (1) an order
compelling reinstatement of the permit, and
(2) damages pursuant to 42 U.S.C. ~ 1983.
Mter a bifurcated trial, Supreme Court rlis-
missed the complaint and entered a judg-
ment in favor of defendants on their counter-
claims ordering reinstatement of the building
permit and awarding damages of $5,137,126,
costs and attorney's fees. The Appellate Di-
vision modified the judgment by remitting
the question of attorney's fees and otherwise
affirmed. It subsequently granted the Town
leave to appeal to this Court. Our review is
controlled in large part by factual findings of
the trial court, affirmed by the Appellate
Division.
88 N.1
506, aJ
ex rei.
lando~
expenc
the ri!
on ti
that tI
loss r€
valuel€
109, 10
[2]
permit
dants I
the us
revoca1
minatir
suppor
Matter
ally, 1
Practic
as the
sons, tl
tutiona
rights
cording
stateml
ty with
time of
II
The CPLR Article 78 Claim
In their first counterclaim defendants
sought reinstatement of their building per-
mit, alleging they had a "vested right" in the
planned construction.
[1] In New York, a vested right can be
acquired when, pursuant to a legally issued
permit, the landowner demonstrates a com-
mitment to the purpose for which the permit
was granted by effecting substantial changes
and incurring substantial expenses to further
the development (see, Matter of Putnam Ar-
monk v. Town of Southeast, 52 A.D.2d 10,
14-15,382 N.Y.S.2d 538; see also, People ex
rei. Ottenbetll v. Bales, 250 N.Y. 598, 166
N.E. 339, affg 224 App.Div. 87, 229 N.Y.S.
550; City of Buffalo v. Chadeayne, 134 N.Y.
163, 165, 31 N.E. 443, 443-44; Matter of
Caponi v. Walsh, 228 App.Div. 86, 89, 238
N.Y.S. 438). Neither the issuance of a per-
mit (see, Matter of Sibarco Stas. v. Town Bd.,
24 N.Y.2d 900, 301 N.Y.S.2d 637, 249 N.E.2d
478; Rice v. Van Vranken, 132 Misc. 82, 229
N.Y.S. 32, affd 225 App.Div. 179, 232 N.Y.S.
Defel
a cause
damagE
actions.
actions
of theiI
them Sl
guarani
tion.
Sectil
"Evel
statUi
usagE
cause
Unite
jUlisc
any 1
cUl'ed
be lia
water and sewage lines; and in certain easem.ent
negotiations with the water company, defendant
gave up rights in a self-contained water system
on the property worth approximately $ t million.
2. The facts are set out fully in the decision of
Justice Stolarik reported at t 56 Misc.2d 88 t, 594
N.Y.S.2d 951.
TOWN OF ORANGETOWN v, MAGEE
88 N.Y.2d 49 Clte.a 643 N.Y.S.2d 21 (CLApp. 1996)
25
.2d 46
order
t, and
1983.
:t dis-
judg-
unter-
Iii ding
:7,126,
te Di-
506, afj'd 255 N.Y. 541, 1,75 N.E. 304; People
ex rel. 01tenberg v. Bales, supra) nor the
landowner's substantial improvements and
expenditures, standing alone, will establish
the right. The landowner's actions relying
on ti,wvalid permit must be so substantial
that the municipal action results in serious
loss rendering the improvements essentially.
valueless (see, Peaple v. Millel~ 304 N.Y. 105,
100 1nr- It..T ~ Q..t OA\
IV'"') .1.VU ..., .J.:.I.,",U V-.,.
iitting
!rwise
Town
iew is
19S of
Ie Hate
[2] There is no dispute that defendants'
permit was legally issued. Whether defen-
dants had sufficiently committed the land to
the use authorized by the pel'mit prior to
revocation is a question of fact and the deter-
mination of the courts below that they had is
supported by evidence in the record (see,
Matter of Caponi v. Walsh, supra; see gener-
ally, 1 Anderson, New York Zoning Law and
Practice ~ 6.18, at 231 13d ed]). Inasmuch
as the permit was revoked for unlawful rea-
sons, the revocation resulted in an unconsti-
tutional deprivation of defendants' property
rights (see, Peaple v. Mille1', supra). Ac-
cordingly, defendants are entitled to rein-
statement of the building permit in conformi-
ty with the zoning ordinances in effect at the
time of the revocation.
dants
per-
.n the
m be
;sued
com-
ermit
mges
I.ther
t Ar-
:1 10,
'le ex
, 166
.Y.S.
N.Y.
~r af
238
per-
Bd.,
E.2d
,229
.Y.S.
III
The Civil Rights Claim
Defendants' second counterclaim asserted
a cause of action under 42 U.S.C. ~ 1983 for
damages suffcred as a result of the TO\\11's
actions. Defendants claimed that plaintiffs
actions resulted in an unconstitutional taking
of their propelty and that the Town denied
them substantive and procedural due process
guaranteed by the United States Constitu-
tion.
Section 1983 provides:
"Every person who, under color of any
statute, ordinance, regulation, custom or
usage, of any State * * *, subjects, 01'
causes to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, 01' immunities se-
cured by the Constitution and laws, shall
be liable to the party injured in an action
ment
ldant
'stem
lIion,
m of
,594
at law, suit in equity, 01' other proper
proceeding for J'edress".
[3-5] MUl1icipalitie~ are ,"persons" sub-
ject to suit under section 1983 for the depri-
vation of constitutionally pFotected rights
caused by actions which "implement[ ] .or ex-
ecute[ ] a policy statement, ordinance, regula-
tion, or decision officially adopted and pro-
mulgated by [its] officers" (Monell v. New
Yu;';'; City DtJpt. of Social SiwviJ., 43G V.s.
658, 690, 98 S.Ct.. 2018, 2035-2036, 56
L.Ed.2d 611; Pembaur v. 'Cincinnat~ 475
U.S. 469, 479-480, 106 S.Ct. 1292, 129~1299,
89 L.Ed.2d 452). The municipality may not
be held vica~sIY4~ 'liable under the doctrine
of J'espondeat superior fOl' employing a care-
less tortfeasor, however: the injury must '
arise from acts of municipal officers or em-
ployees in the course of executing muhicipal
policy or custom (id.). Liability may even be
imposed for a single act, as long as it is the
act of an official authorized to decide policy
in that area (Pembaur, supra, at 480, 482-
483, 106 S.Ct. at 1299-1300; St. Lauis v.
Praprotnik, 485 U.S. 112, 123-124, 108 S.Ct.
915,924-925, 99 L.Ed.2d 107;. see also, Com-
er, Municipal Liability Unde1' Section 1983:
The Rationale Underlying the Final Authar-
ity Doctl'ine, 44 Vand.L.Rev. 341 11991]).
[6] In the context of land use, section
1983 provides protection agains~ m\lnicipal
actions which violate a landowner's rights
under the Just Compensation Clause of the
Fifth AMendment 01' the Due Process Claus-
es of the Fifth and FourteEmth Amendments
to the United States Constitution. Under
the fOrmel", the claimant must establish that
thegovel'1lmental action amounts to a taking
without just compensation. The Supreme
Court has also identified, although not yet
recognized, a substantive due pl'ocess claim
under the Fifth and Fourteenth Amend-
ments based upon a regulatory taking, i.e.,
l'Cb'".llation of property that goes so far it has
effectively destroyed the economic value of
the property (see, Williamson Planning
COlllm'u v. Hamiltoll Bank, 473 U.S. 172,
185, 197-200, 105 S.Ct. 3108, 3115-3116,
3122-3124, 87 L.Ed.2d 12(3).
The trial court rested its decision on a
third ground-that the acts of the Town in
revoking defendants' permit denied them
26
643 NEW YORK SUPPLEMENT, 2d SERIES
substantive due process of law because the
revocation and subsequent zoning change
were arbitrary and capricious (156 Misc.2d
881, 893-895, 594 N.Y.S.2d 951, supra; and
see, Southview Assocs. v. Bongartz, 980 F.2d
84, 96, 102 [2d Cir.1992], cert denied sub
nom. Southview Assocs. v. Individual Mem-
bers ofVt. Envtl. Bd., 507 U.S. 987, 113 S.Ct.
1586, 123 L.Ed.2d 153 [1993]; Brady v. Town
ofColchester, 863 F.2d 205, 215 [2d Cir.1988J;
Wheeler v. City of Pleasant Grove, 664 F.2d
99 [5th Cir.1981J; see generally, Stein, Regu-
latory Takings and Ripeness in the Federal
Courts, 48 Vand.L.Rev. 1, 80 [1995J ).3 This
type of claim challenges a particular land-use
decision-here, the revocation of plaintiffs
building permit-as a single decision with its
own consequences, rather than as one in a
series of action-resulting in a 'taking (see,
Harris v. County of Riverside, 904 F.2d 497,
501, supra). The key factor in such cases is
not whether the State was justified in depriv-
ing the !!!!!vidual50 of his or her property,
but rather whether the State obeyed the
strictures of the Constitution in doing so (see,
Weissman v. Fruchtman, 700 F.Supp. 746,
756 [S.D.N.Y.J).
A
Plaintiffs Ripeness Defense
In contesting the trial court's determina-
tion, the Town frrstcontends that the revoca-
tion was not "final" and therefore not ripe for
judicial review, until reviewed by the Orange-
town Zoning Board of Appeals. Defendants,
on the other hand, assert that the Building
Inspector constitutes a Town o(ficial with
final policy-~aking authority and that requir-
ing an appeal to the Town Zoning Board of
Appeals would impose an impermissible ex-
haustion of remedies requirement on their
section 1983 claim.
[7] Civil rights claims are not justiciable
until the municipality has "arrived at a defin-
itive position on the issue that inflicts an
actual, concrete injury" (Williamson, supra,
. at 193, 105 S.Ct. at 3119; Matter of Ward v.
Bennett, 79 N.Y.2d 394, 400, 583 N.Y.S.2d
3. Some Federal courts analyze such claims as
matters of procedural due process (see, Nasierow.
ski Bros. Inv. Co. v. City of Sterling Hgts., 949
F.2d 890, 894 [6th Cir.1991); Hanis v. COli/II)' of
88 N.Y.2d 49
179,592 N.E.2d 787). This requirement re-
flects the reluctance of the comts to impose
liability upon a municipality unless the liabili-
ty arises from "acts which the municipality
has officially sanctioned or ordered" (Pemb.
a,ur, SUp1'a, at 480, 106 S.Ct. at 1298; Monen
supra, at 691, 98 S.Ct. at 2036; de St. Aubin
v. Fiacke, 68 N.Y.2d 66, 75, 505 N.Y.S.2d 859,
496 N.E.2d 879).
The ripeness requirements for just com-
pensation and regulatory "takings" claims
differ from claims based upon arbitrary and
capricious conduct. Under takings claims
the contention is that the State has taken the
property for a governmental purpose or that
it has gone "too far" in exercising its police
power to regulate property and thus de-
prived an owner of all economically beneficial
use of the property (Pennsylvania Coal Co.
v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158,
160,67 L.Ed. 322; see, NOIthern Westchester
Professional Park Assocs. v. Town of Bed.
fon1. 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458
N.E.2d 809; F1'ench Investing Co. v. City of
New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5,
350 N.E.2d 381, ce1t. denied 429 U.S. 990, 97
S.Ct. 515, 50 L.Ed.2d 602). Such claims are
not ripe for judicial review until (1) the gov-
ernmental entity charged with implementing
the regulations has rendered a final decision
regarding the application of the regulations
to the property, and (2) the landowner has
availed itself of the procedures provided by
State law to obtain just compensation (Wil-
liamson, supra, at 194, 200, 105 S.Ct. at
3120-3121, 3123-3124; Southview, ,mpra, at
96). Under this type of claim, a decision
does not become ripe for review unless alter-
native uses of the property have been consid-
ered and rejected and it is thu!Westablished
that the landowner has been deprived of its
property. Until that has been done, it is not
clear that a taking h,as occurred or how "far"
the regulation goes.
[8J However, substantive due process
claim based on arbitrary and capricious con-
duct, is subject only to the final decision
Rive,'side, 904 F.2d 497 [9th Cir.1990]; Lmld.
mark La"d Co. v. Buclzanall, 874 F.2d 717, 723
[10th Cir.1989]).
~i
t
~I
,
,.
"
'!
;j
;1
;'J;
~; i'
~.'. .'.
~:
..(i
'li;
it
~)
~'!
I':....:.:.
.,
~!
S.:."
t\
l\;
11
:;
88 N.Y.2d
requiremel
decision m
how could
unnecessar
ministrativ
regulation
or avail it!:
mining con
v. Bangan
of the mu
cious, the :
tion of thl
(see, Willi,
3122).
[9] Th€
the requir
dies must I
judicial re'
ment that:
ripe for jm
ment is co
authorized
arrived at :
requiremel
be exhaust
procedure
decision m:
dy if the
(Williamso
3119-3120;
Andrew v.
N.Y.S.2d 2
ing Inspec
final decis:
requiring (
review of ]
the Zoning
tion requirl
a condition
(see, Patsh
U.S. 496,
WilliamsOl
3120-3121
latory Tak
Cowts, op.
Jin, Section
es, and FI
Whether
tion cons tit
of Oranget
by examini
have broad
k'.2d 49
ent re-
impose
: Iiabili-
cipality
(Pemb-
VI on el~
Aubin
2d 859,
88 N.Y.2d 52
TOWN OF ORANGETOWN v, MAGEE
Clle as 643 N.Y,S,2d 21 (CI.App. 1996)
27
requirement of the Williamson test. The
decision must be final to be reviewable (else
how could arbitrariness be judged), but it is
unnecessary that the landowner pursue ad-
ministrative remedies to determine how the
regulation in question applies to the property
or avail itself of State procedures for deter-
mining compensation (see, Southview Assocs.
v. Bongartz, supra, at 96-97). If the action
of the municipality is arbitrary and capri-
cious, the remedy for a violation is invalida-
tion of the regulation and actual damages
(see, Williamson, supra, at 197, 105 S.Ct. at
3122).
t com-
claims
ry and
claims
en the
II' that
police
IS de-
eficial
al Co.
.. 158,
heste1'
, Bed-
), 458
'ityof
.2d 5,
90,97
IS are
: gov-
:nting
~ision
Itions
r has
:d by
(Wil-
t. at
'a, at
ision
II ter-
nsid-
shed
If its
; not
'far"
[9] There should be no confusion ahout
the requirement that administrative reme-
dies must be exhausted in some cases before
judicial review is available and the require-
ment that an action must be final before it is
ripe for judicial review. The finality require-
ment is concerned with whether an official
authorized to make the determination has
arrived at a decision that inflicts injury. The
requirement that administrative review must
be exhausted in some cases relates to the
procedure by which a party injured by a
decision may seek review and obtain a reme-
dy if the decision is found to be unlawful
(Williamson, supra, at 192-193, 105 S.Ct. at
3119-3120; see also, Church of St. Paul & St.
Andrew v. Barwick, 67 N.Y.2d 510, 521, 505
N.Y.S.2d 24, 496 N.E.2d 183), If the Build-
ing Inspector had the authority to make a
final decision revoking defendants' permit,
requiring defendants to seek administrative
review of his action by taking an appeal to
the Zoning Board would impose an exhaus-
tion requirement on their section 1983 action,
a condition which is generally impermissible
(see, Patsy v. Florida Bd. of Regents, 457
U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172;
Williamson, supra, at 194, n. 13, 105 S.Ct. at
3120-3121 n. 13; see generally, Stein, Regu-
latory Takings and Ripeness in the Federal
C0U11S, op. cit., at 15; 1 Schwartz and Kirk-
lin, Section 1983 Litigation: Claims, Defens-
es, and Fees ~ 3.13, at 204-205 [2d ed]).
Whether the Building Inspector's revoca-
tion constituted a "final decision" of the Town
of Orangetown is a matter to be determined
by examining the relevant local laws. States
have broad discretion to determine the form
cess
con-
sion
Ulld-
723
of local government and the. distribution of
power in one locality may be quite different
from' that of another. Wh~ther an official
has final authority to take municipal action in
a given case is not a question of fact, ,but a
question of State law (St. Louis v, Pm-
p1Jl!Jik'62'supra, at 124, 108 S.Ct. at 924-925;
Pembam', SUP1'a, ~t 483, 106 a.Ct. at 1299-
1300; see generally, Stein, op. cit.,' at 82).
Under the ordinances of the Town of
Orangetown, the Building Inspector had .the
statutory authority to effect a revocation of
defendants' building permit (Orangetown,
N.Y., Zoning Code, ch. 43, ~ 8.222 ,[1969]).
He was the "initial d.ecisionmaker" vested by
law with the exclusive and unfettered author- .
ity to decide the question. of revocation (see,.
Williamson, SUp1'a, at 193, 105 S.Ct. at 3120)
and he clearly had done so when he revoked
defendant&' permit and halted work on the
project. The Zoning Board was not autho-
rized to revoke a permit ot even participate
in the Inspector's decision to I'evoke. Its
power was restricted to the review of the
Inspector's final decision. Thus, a determi-
nation by the Board was not necessary and.'
defendants' counterclaim for section 1983 re-
lief is ripe for judicial review.
B
Defendants'Section 1983 Claim
[10] To succeed on their claim for dam"
ages pursuant to 42 U.S.C. ~ 1983, defen-
dants must establish (1) the deprivation of a
protectable property interest (2) by one act-
ing undel' the authority of law (Pal'ratt '/!.
TaylO1; 451 U.S. 527, 535, 101 S.Ct. 1908,
1912-1913, 68 L.Ed.2d 420):
[11] The hallmark of propet1y "is an indi-
vidual entitlement grounded in state law,
which cannot be removed except 'for cause' "
(Logan v. Zimmerman BJ'ltsh Co., 455 U.S.
422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d
265; Pa11'att v. TaylO1~ supra; Matter of
Deas v. Levitt, 73 N.Y.2d 525, 531; 541
N.Y.S.2d 958, 539 N.E.2d 1086, cert. denied
493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314).
In order to establish a protectable property
intel'est in the building pe!'mit, defendants
must show more than a mere expectation or
hope to retain the pel'mit and continue their
28
643 NEW YORK SUPPLEMENT, 2d SERIES
improvements; they must show that pursu-
ant to State or local law, they had a "legiti-
mate claim of entitlement" to continue con-
struction (Board of Regents v. Roth, 408 U.S.
564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548;
Sullivan v. Town of Salem, 805 F.2d 81, 84-
85 [2d Cir.1986]; Yale Auto Parts v. John-
son, 758 F.2d 54, 59 [2d Cir.1985] ).
[12J Defendants did so in this case by
establishing that the rights to develop their
land had become vested under State law.
Moreover, as the courts below found, they
unquestionably would have received the lim-
ited future authorizations necessary to com-
plete the' project. On this evidence, the
Town had "engendered a clear expectation of
continued enjoyment" of the permit sufficient
to constitute a protectable property int~ls3
for purposes of a section 1983 claim (Barry v.
Barchi, 443 U.S. 55, 64, n. 11, 99 S.Ct. 2642,
2649, n. 11, 61 L.Ed.2d 365); there was a
"certainty or a very strong likelihood" that
defendants would have completed the project
absent the deprivation of due process (see,
Yale Auto Parts, supra, at 59).
[13, 14J Having acquired a cognizable
property interest, due process assures the
defendants the right to be free from arbi-
. trary or irrational municipal actions destruc-
tive of this interest (see, Arlington Hgts. v.
Metropolitan Hous. Corp., 429 U.S. 252, 267,
97 S.Ct. 555, 564-565, 50 L.Ed.2d 450;
South view AssocB., SUP1YL, at 96; Brady v.
Town of Colchester, supra, at 215). The
municipality's authority' to regulate zoning
rests upon the valid exercise of its police
power and a decision regulating a landown-
er's use of its property offends due process
when the government acts with "no legiti-
mate reason for its decision" (Shelton v. City
of Call. Sta., 780 F.2d 475, 483 [5th Cir.], cert.
denied 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d
41; see, Euclid v. Ambler Co., 272 U.S. 365,
395, 47 S.Ct. 114, 121, 71 L.Ed. 303). The
evidence in the record supports' the trial
court's conclusion that the Building Inspec-
tor's revocation of defendants' permit was
arbitrary and capricious in this case because
it was without legal justification and motivat-
ed entirely by political concerns. The only
remaining question is whether his actions
may be imputed to the Town of Orangetown.
88 N.Y.2d 52
[15J The Town Zoning Code, which nec-
essarily reflects Town policy, vests the Build-
ing Inspector, alone, with the authority to
revoke building permits (Town of Orange-
town Code, ch. 43, ~ 8.222). The Building
Inspector therefore implements Town policy
and the Town, by enacting the legislation,
accepted the possibility that he would exer-
cise this authOlity in an arbitrary and capri-
cious manner. While the municipality might
not be liable if the Building Inspector acted
in a good faith or mistaken understanding of
the law (see, Brady v. Town of Colchester,
SUp1YL, at 216) or if his act was a random act
of personal ill will not authorized by the
Town (ser, Monel~ supra; PembaU1', supra),
that clearly was not the case here. He exer-
cised his legal authority for political reasons
at the direction of the Town Supervisor.
Accordingly, defendants successfully estab-
lished a claim for damages pursuant to 42
U.S.C. ~ 1983, based on the Building Inspec-
tor's arbitrary ant:! irrational revocation of
their building permit. .
~lV
Damages
Finally, the plaintiff maintains that the
damages were incorrectly computed and the
award excessive.
Plaintiffs experts conceded during trial
that defendants had sustained substantial
damages. Moreover, they agreed that the
damages could be measured by implementing
the so-called Wheeler formula (see, Wheele1'
v. City of E:leasant Grove, 833 F.2d 267, 271
[11th Cir.1987] [Wheeler III]; see also, 664
F.2d 99 [Wheeler I], supra; 746 F.2d 1437
[Wheele1' II]; 896 F.2d 1347, 1351 [Wheeler
IV] ). In fact, the parties stipulated to a
number of figures that could be used to
compute the damages under that formula.
In Wheeler, a case remarkably similar to
this on the facts, the court established a
method for determining the damages sus-
tained by temporary governmental interfer-
ence with a landowner's beneficial use of
property. It held that the loss takes the
form of an injury to the property's potential
for producing income or an expected profit.
88 N.Y.2d S5
The compensabll
the portion of fail
a result of the g(
ingly, the landov
market rate of
period of the U
tween the prop{
restriction and il
restriction (see,
[16,17] The
free to chart tl
public policy is
the way a conti
how damages ~
interference by
York Hasp., 61 :
461 N .E.2d 28!
Board of Educ.,
109, 386 N.E.2c
845, 100 S.Ct. t
express no vie
the Wheeler fOl
cases such as
public policy a
discretion to c
52
~c-
Id-
to
~e-
ng
cy
In,
!r-
ti-
ht
~d
of
~r,
ct
1e
),
r-
18
)-
12
c-
)f
e
e
Ll
Ll
e
g
r
1
t
7
,.
i
)
~ 6.23
NEW YORK ZONING
ing nursery school to a day camp,14 a shift from indoor to
outdoor parking,15 and from storage of immobile equipment to
storage of trailers. 18
Some minor changes may not be prohibited by the restrictive
ordinance. Substitution of ready-mix trucks and mechanical
loading equipment for dump trucks and hand loading devices is
not an unlawful change.17 The substitution of a garage for a
stable, and then a parking lot for a garage is not a change of
use.'8
~ 6.24. Change in volume of use.
Ordinances which by their specific language restrict change of
use have occasionally been applied to situations which involve
an increase in volume or intensity of use. Exact cases are few,
but it . appears that an increase-sometimes referred to as a
mere increase-in the volume or intensity of a nonconforming
use is not a change of use.19 This rule usually is followed
notwithstanding that the increase in volume renders the use
more obnoxious to its neighbors. Thus, a nonconforming user
increased his wholesale fish business. The increase yielded
stronger smells and generated additional traffic, but the court
held that an ordinance which prohibited change of use was not
offended.20 Even an increase in volume accompanied by some
change in the nature of the use is not regarded as a change of
14. Margo Operating Corp. v Great
Neck, 129 NYS2d 436 (1954, Sup).
15. Bowen v Hider, 37 NYS2d 76
(1942, Sup).
16. Ossining v Meredith, 275 AD
850, 88 NYS2d 775 (1949); Carmel v
Meadowbrook Nat. Bank, 15 Mise 2d
789, 182 NYS2d 465 (1959); Little v
Young, 82 NYS2d 909 (1948, Sup),
affd 274 AD 1005, 85 NYS2d 41, reh
and app den 274 AD 1065, 86 NYS2d
288 and affd 299 NY 699, 87 NE2d 74.
17. McGovern v Anzalone, 22 Mise
2d 895, 196 NYS2d 58 (1959).
18. People v Emigrant Industrial
Sav. Bank, 261 AD 402, 25 NYS2d
605 (1941).
A nonconforming lobbying office is
substantially the same as a medical
246
office. The former may be substituted
for the latter although both uses are
nonconforming. Aboud v Wallace, 94
AD2d 874, 463 NYS2d 572 (1983, 3d
Dept).
19. A mere increase in the volume
of a nonconforming use does not affect
its validity or constitute a change of
use. Ruhm v C. P. Craska, Inc., 59
AD2d 1016, 399 NYS2d 749 (1977, 4th
Dept),
A property owner could not be con-
victed of a zoning violation where he
had shown a valid nonconforming use
despite a legitimate increase in vol-
ume. People v Bonnerwith, 79 Mise 2d
242, 360 NYS2d 150 (1974).
E
i
(
1
!
t
(
I
20. Syracuse v Bronner, 133 NYS2d
153 (1953, Sup),
e
NONCONFORMING USES
~ 6.24
use. An increase in the volume of business transacted by a
nonconforming business, plus the addition of a line of lawn
ornaments, was held not to constitute a change of use.' A change
from seasonal to year-around use of a building was not regarded
as a significant change of a nonconforming use.2 But where an
increase in volume is accompanied by a fundamental change in
a nonconforming business use, the courts have detected changeR
proscribed by the ordinances.3 Thus, the nonconforming use of
land zoned residence "e" as a seasonal, private beach club could
not be expanded to operate the club restaurant on a year-round
basis open to the general public. I
Where the expansion of a conforming use increases the burden
on an accessory nonconforming use, the expansion will not be
allowed unless the accessory use is brought into conformity. For
example, while a conforming restaurant, established before ac-
cessory parking space was required, could continue to operate
without such space, a change in the restaurant to a cocktail bar
and an increase in seating capacity required conformity with the
parking space ordinance. This was true even though the ex pan-
"
,,'
1. People v Perkins, 282 NY 329, 26
NE2d 278 (1940).
See also, Gscheidle v Murdock, 280
AD 74, 111 NYS2d 740 (1952).
2. Allen v Battrick, 87 AD2d 575,
447 NYS2d 741 (1982, 2d Dept).
'3. Bustis v White Plains, 201
NYS2d 909 (1960, Sup); Pisicchio v
Board of Appeals, 165 Misc 156, 300
NYS 368 (1937).
Increased volume of business is not
necessarily an expansion of a noncon-
forming use, but an increase in oper-
ating hours of a nonconforming user
is prohibited. Syracuse Aggregate
Corp. v Weise, 72 AD2d 254, 424
NYS2d 556 (1980, 4th Dept), affd 51
NY2d 278, 434 NYS2d 150,414 NE2d
651; discussed in Mayo, Land Use
Control, 1980 Survey of New York
Law, 32 Syracuse L Rev 421 (1980).
An increase in the volume of use,
without a significant change in the
kind of use, is not a proscribed exten-
sion of a nonconforming use. How-
ever, an increase in volume or inten-
sity when coupled with a variation or
alteration in the specific type of use
will result in an illegal extension.
Gilmore v Beyer, 46 AD2d 208, 361
NYS2d 739 (1974, 3d Dept).
Where an owner had 12 bathhouses
.. ai)d 2 shower baths prior to the adop-
tion of an ordinance which made
places of public amusement subject to
special permit, an addition of 100
bathhouses and 56 cabanas consti-
tutes a change of use rather than an
extension of use, because the very
nature of the use would be altered by
the addition of facilities. Little v
Young, 82 NYS2d 909 (1948, Sup),
affd 274 AD 1005, 85 NYS2d 41, reh
and app den 274 AD 1065, 86 NYS2d
288 and affd 299 NY '699,87 NE2d 74.
4. Oyster Bay v Avalon Yacht &
Cabana Club, Inc., 38 AD2d 604, 329
NYS2d 185 (1971, 2d Dept); discussed
in Roswig, Local Government, 1972
Survey of New York Law, 24 Syra-
cuse L Rev 163 (1973).
247
~ 6.24
NEW YORK ZONING
to
of
sion involved no change in the structure of the restaurant, and
even though compliance would involve expenditure of about
twice the amount paid for the restaurant itself.5
~ 6.25. Change in location of use.
A nonconforming use may be related to a particular location
or building. The establishment of a nonconforming use in one
building does not authori7.p. a change of location and the estab-
lishment of the use in a different building.' A landowner who
maintained signs on his land as a nonconforming use is not
entitled to move such signs within 200 feet of a highway, in
violation of a zoning ordinance.7
Condemnation proceedings sometimes work a hardship where
a nonconforming structure must be moved. Accordingly, the
administrative code of the city of New York provides that "any
building legally in existence prior to its relocation shall retain
its legal status without any alteration which might be required
pursuant to provisions of law relating to the new site." This
provision does not authorize the continuation of a nonconform-
ing use if a new building is constructed by the displaced owner.8
w~
en
th
th
ap
us
co
a:
ru
m
ch
HE
m:
be
su
pr
~ 6.26. Change of ownership.
A change in the ownership of a nonconforming business or
structure does not affect the right to continue the use.' Thus, the
purchaser of improved lots which did not conform to the zoning
regulations, but which had been improved prior to the adoption
of the ordinance, was entitled to maintain them as nonconform-
ing uses.IO Where a veterans' organization enjoyed a vested right
5. Off Shore Rest. Corp. v Linden,
30 NY2d 160, 331 NYS2d 397, 282
NE2d 299 (1972); discussed in Roswig,
Local Government, 1972 Survey of
New York Law, 24 Syracuse L Rev
163 (1973).
6. Application of' Furman Ave.
Realty Corp., 275 AD 779, 87 NYS2d
693 (1949), affd 299 NY 768, 87 NE2d
676.
7. New York v Seel, 8 AD2d 964,
190 NYS2d 865 (1959, 2d Dept).
See Usherowitz v Foley, 16 AD2d
700, 227 NYS2d 959 (1962, 2d Dept).
248
for
tn
be
ga:
m.
66
(H
N'
8. Diaz v New York, 23 Mise 2d 419,
198 NYS2d 756 (1959).
9. Biener v Thomaston, 85 AD2d
730, 445 NYS2d 808 (1981, 2d Dept),
app dismd 59 NY2d 750, 463 NYS2d
442, 450 NE2d 248.
The mere change of ownership to a
condominium arrangement does not
terminate a right of nonconforming
use. North Fork Motel, Inc. v Gri-
gonis, 93 AD2d 883, 461 NYS2d 414
(1983, 2d Dept).
10. Elsinore Property Owners Asso.
v Morwand Homes, Inc., 286 AD 1105,
146 NYS2d 78 (1955).
of
aft
9 J
tel
62
v;
14
of
te:
a
0'"
m
CORBALLY, GARTLAND AN D RAPPLEYEA
~ttonttl!g Rnh C!Jo\t1tgtlttt~ Nt 1fIaht
CHAI1LES .J. CORBALLY (1966)
JOliN .J. GAlHLANO, Jll
ALLAN E. RAPPLEYEA
DANIEL F. CURTIN"
FRED w. SCHAEFFER
JON HOLDEN ADAMS
MICHAEL G. GARTLAND
VINCENT L. DEBIASE
PAUL O. SULLIVAN"
RAROAVON DUIl.DING
35 MAflKET STREET
FLORIDA OJ FICF:
1499 GULF.TO [lAY UUULLVAIILJ
CLEARWATER, FLORIDA 33516
BI3-461-3/44
POUGHKEEPSIE, NEW YORK 12601
914-454-1110
STEPHEN G.WATTS,OF COUNSEL"
..MEMsr.n or FLORIDA BAn ONLY
MILTON M. HAVEN
JOSEPH F. HAWKINS'
COUNSEL
BRANCH OFFICE:
BANK OF MIl.LBROOK BUIl.DING
FRANKLIN AVENUE
MILLBROOK, NEW YORK 12545
9!-1 -577 S~39
. fl'" EMBER N. Y. AND f"lQRIDA BAR
October 8, 1982
Town Board
Town of Wappinger
P. O. Box 324
Wappinger Falls, NY
12590
Re: Mid-Hudson Auto Wreckers
Gentlemen:
As a result of conversations and negotiations between Hans
Gunderud, Zoning Enforcement Officer, our office and Mr. Shapiro
and his representatives, we have come to an agreement as to certain
matters which have been outstanding relative to the manner in which
compliance with the zoning ordinance has been observed. I enclose
herein for your consideration the agreement that has been signed
by both Mr. Shapiro and Hans. In view of the fact that the Town
Board previously participated in this matter, your approval is
requested.
Very truly yours,
CORBALLY, GARTLAND & RAPPLEYEA
5/
Jon Holden Adams
JHAjlh
Ene.
cc: Hans Gunderud
EN
CRANE
AND WOLFSON
fTORNI[YS AND
NSllLOnS AT LA~
fro4AHKET STREI:T
u([E"SI[. NEW VO....
12801
.914. "=-4_2200
MEf\10Hl\NDllM OF IHSPOSI'l'ION
f>lID-IIUDSON l\U'l'O WH.ECKERS., INC.
l\PPLICl\TION FOR Sl\LVl\GE Yl\RD LICENSE
'l'O\-JN OF WAPPINGER
REFERENCE MEMORl\NDUM
Hl\NS R. GUNDERUD to ELl\INE H. SNOWDEN
DA'l'ED Jl\NUl\RY 27, 1982
The Zoning Administrator and the applicant agree that the
followings items shall be dispositive
of the Zoning Administrat r'
Memorandum above noted, and that upon observance by the applicant
of the conditions set forth below, the Zoning Administrator
will withdraw any objections to the application and to the
granting of the application for license to conduct business as
a salvage yard insofar as it relates to those items:
1. Fire Extinguishers - Fire extinguishers shall be
maintained in the office building and in all yard vehicles on
the~subject premisesi
2. Stacking - There shall be no stacking of cars permit c,
No cars presently stacked will be permitted except stacking
necessary for the crushing of vehiclesi any stacking currently
in existence shall be terminated within one weeki
3. Fire Lanes - Fire lanes shall be maintained in'ac-
cordance with the provision of the Ordinance regulating used
parts dealersi
4. Storage of Vehicles - Storage of vehicles in south
ind of premises shall not be permitted south of the existing
EN
CRANE
AND WOLFSON
rTORNEYS AND
.ISEL.LOR5 AT L..Aw
MA'UC&:T 6TREET
K(ErS.E. NEW ,,"ORk
l:a.OI
j' 4) ~&..2200
<Jdll' Wflich is ilj>proxiJ1lilll'ly 1100 [eel north of Houte' (Jll;
5. Crushing operntions - all crushing operations sh~ll
be conducted north of the gate which is approximately 400 feet
north of Route 9D.
6. Additional Conditions - The applicant shall comply
with all conditions and representations set forth in a certain
letter dated April 27, 1982, from Hans R. Gunderud to Jon Adams,
Esq., a copy of which is affixed hereto.
7. Municipal Regulations - The applicant shall also
comply with all governmental laws, rules and regulations applicabJc
to the conduct of a salvage yard business, including the Zoning
OrdInance and local laws of the 'I'own of Wappinger.
The undersigned, Mid-Hudson Auto Wreckers, Inc. hereby
agrees to all of the terms, conditions and representations made
in this Memorandum of Disposition and executes this Memorandum
wit~ the knowledge that the Town of Wappinger Zoning Enforcement
Officer will rely on same and will withdraw all objections to the
issuance of a salvage yard license to the undersigned.
By:
consented to:
of Wapp1inger
Town Board, Town of Wappinger
By: {
( 3l:D
PAGGI, MARTIN & DEL BENE LLP
Consulting Engineers & Land Suroeyors
54-56 Main Street
Poughkeepsie, New York 12601
914-471-7898
914-471-0905 (FAX)
August 1 7, 1999
Acting Zoning Administrator/
Building Inspector
Town of Wappinger
P.O. Box 324
Wappingers Falls, New York 12590
Attention: Mark Liebermann
Paul Foody
Reference: A & W Scrap/Route 9D
Dear Mark & Paul:
As requested a field inspection was made on the above referenced site on
August 17th, 1999 to determine whether or not a grading permit would be
required for the work that is being proposed/done by the owners of the
above business.
When we arrived on the site, we drove down to the north central portion
of the site where it appeared as if a filling operation had been taking place
utilizing spoil from various construction jobs, including ballast from railroad
demolition, concrete, gravel, etc. The fill was approximately 4' in depth
and appeared to extend approximately 100'-125' north of what appeared
to be existing ground.
It was stated to us in the field by the owner of the property that this was
the extent of the filling that would be done. However, at the end of the fill
a 6' high berm would be placed to visually shield the recycle operation
going on in the interior of the site.
At this point, it appears as if the filling operation is completed, and all that
is left to be done is the grading work at the edge of the fill. I think to have
a grading permit at this point in time would be meaningless as it is after
the fact.
It appears that no natural drainage patterns have been blocked and/or
altered. However, in light of the existing vegetation, I would caution the
owner that there may be Federally Regulated Wetlands on or near the
filling operations.
Joseph E. PaggI, Jr., P.E. Ernst Martin, Jr., P.E., L.S. Charles R. Del Bene. Jr., P.E.
Mark Liebermann
Paul Foody
RE: A & W Scrap
- 2 -
August 1 7, 1 999
I would recommend that you document the end of the existing fill as we
viewed it today, to insure that the berm that will be placed around the
edge of this fill will be done without extending the fill material.
I further recommend that once this is completed by the Applicant that he
prepare a final plan and present it to your office and possibly the Planning
Board for record purposes.
If there are any further question or comments, please do not hesitate to
contact this office.
;:;~S'iZk
Joseph E. Paggi, JrID
JEP:law
cc: Albert P. Roberts, Esq.
Hon. Constance O. Smith, Supervisor
Hon. Vincent Bettina, Councilman
Hon. Joseph Paoloni, Councilman
Hon. Joseph Ruggiero, Councilman
Hon. Robert Valdati, Councilman
Hon. Elaine Snowden
VERGILIS. STENGER. ROBERTS & PERGAMENT
ATIORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
GERALD A. VERGILIS'
KENNETH M. STENGER
ALBERT P. ROBERTS
IRA A. PERGAMENT
ANTONIA T. LUCIA
JOAN F. GARRETT"
THOMAS R. DAVIS
MARIA 1. GRECO
FAX (914) 298-2842
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE. NY 12601
(914) 452-1046
'ADMlTI"ED TO PRACTICE
INNYIOF1A
ADDRESS REPLY TO: ( ) POUGHKEEPSIE
( ) 'w'APPINGERS
UADMlTI"ED TO PRACTICE
IN NY & CONN.
December 13, 1999
VIA FACSIMilE: 914343-2621
Thomas G. Farrell, Jr. Esq.
37 North Street
Middletown, NY 10940
RE: Town of Wappinger v. A & W Scrap
Our File No. 12951.0360
Dear Mr. Farrell:
Regarding the above matter, I am advised that your clients' have fully complied with
the directives of both the Building Inspector and Zoning Administrator. It was my
understanding that you and I were to agree upon the terms of a proposed
Memorandum of Disposition. If you could prepare an initial draft, and perhaps then
we can finalize the matter.
Very truly yours,
VERGILlS, STENGER, ROBERTS & PERGAMENT
~'l/~ -
.//~~%4 ~.. /'./--. .. ./:,-'
./~, c:. ; ,,-- r' ---~
/ .----- ,....
ALBERT P. ROBERTS -
APRlamg
cc: Hon. Constance O. Smith, Supervisor
Mark lieberman, Zoning Administrator
Paul Foody, Building Inspector
Joseph E. Paggi, Jr.
VERGILIS, STENGER, ROBERTS & PERGAMENT
ATIORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
GERALD A. VERGILlS*
KENNETH M. STENGER
ALBERT P. ROBERTS
IRA A. PERGAMENT
ANTONIA T. LUCIA
JOAN F. GARRETT**
THOMAS R. DAVIS
MARIA ], GRECO
FAX (914) 298-2842
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
'ADMmED TO PRACTICE
IN NY & A.A.
"ADMITTED~I/lI6, 2000
IN NY & CONN.
ADDRESS REPLY TO: ( } POUGlIK[[PSIE
( ) WAPPINGERS
Thomas G. Farrell, Jr., Esq.
37 North Street
Middletown, NY 10940
RE: Town of Wappinger v. A&W Scrap
Our File No. 12951-0360
Dear Mr. Farrell:
A review of my files indicates that this matter was never fully resolved. We are now
receiving complaints from neighbors as to various activities that are going on at this
site. I would recommend for everyone's sake that we enter into a Disposition of
Settlement based along our prior communications. It was my understanding that you
were to forward to me a proposed draft, however, I have yet to receive same. Your
prompt attention is greatly appreciated.
Very truly yours,
VERGILlS, STENGER, ROBERTS & PERGAMENT
Ai~i25a
Au3ERT P. ROBERTS
APR/spd
cc: Mark Lieberman, Acting Zoning Administrator
Joseph Paggi, P.E.
VERGILlS. STENGER, ROBERTS & PERGA_.LENT
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
WAPPINGERS FALLS. NEW YORK 12590
(845) 298-2000
GERALD A. VERGILlS'
KENNETH M STENGER
ALBERT P. ROBERTS
IRA A PERGAMENT
ANTONIA 1. LUCIA
JOAN F. GARRETT"
THOMAS R. DA VIS
MARIA 1. GRECO
FAX (845) 298-2842
LEGAL ASSISTANTS:
AMY E. WOODARD
KRISTEN S. GUTHRIE
e-mail: VSRP@BestWebNet
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE. NY 12601
(845) 452-1046
. ADMIITE!J TO PRACTICE
IN NY & FLA.
"ADMITTED TO PRACTICE
IN NY & CONN
ADDRESS REPLY TO: ( I POUGHKEEPSIE
! ! \V,^.PPfNGER-S
August 4, 2000
Thomas G. Farrow, Jr., Esq.
37 North Street
Middletown, NY 10940
Re: Town ofWappinger-A.W. Scrap
12951.0360
Dear Tom:
On Thursday, June 20, 2000, you had indicated that you were going to review this matter
with your clients and then review the Town's files.
In the interim, the matter came up before a regular department meeting, and it is my
understanding that the Town will be conducting the yearly site inspection as a predicate
to issuing your clients' license renewal.
It is my understanding that the Town's inspections will be completed ~ithin the next
week. Accordingly, I would appreciate having your proposed Memorandum of
Disposition as soon as possible, so that it can be addressed simultaneously with this
year's license renewal.
Very truly yours,
VERGILIS, STENGER, ROBERTS & PERGAMENT
~
ALBERT P. ROBERTS
APRlmm
cc: Mark Lieberman, Acting Zoning Administrator, Joseph E. Paggi, Jf., PE, Hon.
Constance O. Smith, Supervisor
SEP-2s-ee THU 1 1 : 12
P _ e 1
c". ,I.
....
" '
"
" 1
~ : h ..
1 r',
. .' ~.' ..
:" ~:
;.. .
:..
Y~~ff~fi
ATTORNEV
AND
COUNSELOR AT LAW
37 NORTH STREE'I'
MIDDl.ETOWN, NEW YORK 109-'0
TEL. (B451 343.215S
FAX. (84!l 343.2621
. 'j-,
September 28, 2000
V:tA FAX ONLY
Albert p:~oberts, Esq.
Vergilis, Stenger, Roberts & pergament
1136 Route 9 '
~~ppinger'Falls, NY 12590
t ~ .' '. '
: 't
" RE:'rOWN OPWAPPINGER - A.W. SCRAP - 12951.0360
\' :,':". .
.'
. . . . , . .
, . . .
, "
'", '.' .
Dear Mr. Rob'erts:
.~ e,.
My client is in Chicago for a wedding and I did not discuss
with himthi~ letter before sending it to you.
"Mr.' Weinert did acknowledge receiving DEC notices for (1)
9il/gas spillage and (2) too many tires. He immediately cleaned-up
t.hespillage but DEC indicated contaminated dirt (6 to 7 tons) will
have to be removed and disposed of. He is pricing this work and
Mr. Weinert tells me DEC is satisfied with his progress. He is
flopingit will be less than $1,000 in total oosts.
On the tires, most of them were on the premises before he
purchased the property. He will be making an application to DEC to
~et~upa ti~e schedule to remove the tires. DEC told my client
that they':a:r;e not looking to hurt him or put him out of business.
They ;Looked' at his paid invoices showing a regular substantial
removal 6ftire~. He had a number of truckloads remove 1500 tires
~t $1,50~ ~er load.
" Many of these old tires were deposited by the Town with the
<::onsentof, Mr. & Mrs. Shapiro, the prior owners. We are addressing
~ot only~hese tires but new ones we oreate.
, MyclieI:lt is hoping to resolve the problem of the old tires
~ithin th~. next twelve months. It has taken some time to get the
business to be profitable.
I~ y6~ have any questions, my client and I will be happy to
~eet~1th you or any other representativ the town.
.~
TGF/ld
cC:l'J!r.& Mrs. Albert Weinert
! .."
VER(
,IS, STENGER. ROBERTS & PERL MENT
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(845) 298-2000
GERALD A. VERGILlS"
KENNETH M. STE;-.JGER
ALBERT P. ROBERTS
IRA A. PERGAMENT
ANTONIA T. LUCIA
JOAN F. GARRETT'''
THOMAS R. DA VIS
MARIA 1. GRECO
FAX 1845) 298-2842
e-mail: VSRP@BestWeb.Nel
- ADMITTED TO I'KALTlCE
IN NY & FLA.
......-\D!viiTIED TO PRACTiCE
IN NY & CONN
October 10, 2000
Mark Liebermann, Acting Zoning Administrator
Town Board
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
Re: A&W Scrap
Dear Mark:
( J 9 ~ l J D ~};d~: G
LEGAL ASSISTANTS:
AMY E. WOODARD
KRISTEN S. GUTHRIE
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE. ;\IY ]2601
iR45l452.1046
.\DDRESS REPLY TO I ) POUGHKEEPSIE
I ) WAPPINGERS
I have reviewed the Town's junk yard ordinance and note that Section 153-4F states
that the license can not be renewed if there's a violation of any local law or ordinance of
the Town of Wappinger or Dutchess County, On its surface, a technical violation of
DEC regulations should not prohibit the Town's issuance of a junk yard license.
Please advise comments
Very truly yours,
VERGILlS, STENGER, ROBERTS & PERGAMENT
.~~
(i~ \~t,~, :'..
\" ,:0 " '^-t"'....\.'~
Albert P. Rob rts
APR/es
c.c: Tatiana Lukianoff and Joseph E. Paggi, Jr., PE
Q;\r ~~I
I~("
l.,,:rJ'\
~
tV-
,
rr' .,.
.. ". ,.(\\:;" .' ~
\~'Avf{ " '-.
~ / .~~
'P~ \ //
~'\ \ /
. \//
/\
/'~ \-...
// ~ l '.
,,) J{
\
i
.'
,.
~.
\\
'.
\
,:'\
" .... I
)1 " .....
,.'
,.
..
~""i
/ .///-' / .-AJ>
- i ~ ~.~ -':.,-"
"
".."
",'
..
..".-
,
,
"
..
,"
,
,
\
)
,
,
\
" '.' ,~ . \"Y'-
". \\ 99'\V~~~
\\\\ .,...' \\~
'\ \ " ' . .. ~\\'"
') COt;, 1\
/,~ , ~ ,')~ Jo ~~
, ~ . \~~"'\'\ .'~~') ,1, ~ ~~
~~, 11\, 111.1. \, ~\\
~, " ," I ~ II I \'l
..t;::, ~. \ \ \ \ \ .~\
')~ ~. ~ \\ \\~ \ \. ~,O <6 \'
, ~ - \1\'\,' II \ \"') '!, II
.~~ 11 .\ \J \ \ /' .::.\~- "t~- - \\'\
, ( \ /' ./' \\.\
I \ - - ., \,
_ ;::::::; I - '. "J' '" \
._ -:::;.::::-_ I ' \ ( ,,')~ 't ;;. \~
- \\" " q, ~\
" \' t ~
\\ '
\) .~
I ' ,0
/ :~~
/,/ ~ 'I<J "t
/,/
~'
\ '
/
"
\
'\
\
.'o.
\
\
,
~~.
~
~j -
~t
Q.~
'-. Pf-- Cot
, \'i (\
j
\
\..
,
"
'.
\
"
\
\
\
\
~
.r~
,CO
".
"
"
~.,
.'
'"
o
o
I
I
i
I
/
'\
,0
.t"'\'<L
')..Jj .
."\~ .~"t ,--~--
L 91 \, ",?~~~
, ..... OD;2-
.'-" '~
~ ~~
N 1., ~N
-l> 0
o
\
:.;
." ...
~
?
; ,
,..- ~: .
~ '" <-
0> ~ '< ~"
'" ~
'"1: Q ~ ~~
':' Q
" ~, ..J ~~
-.l 5
:2 ~ ~ J0
~ :.-.
1- ~
l.; ~ -.l .} ~
.... lJ .~ ~ ~
, <lI l,; f ~ w.:. \U
~ .., ()
":t:- V.
'<
'-J
'~"
'!
~
'l:::
~
l"
<\"
~
"-
Cl
<t tJ. E:::l
'.'W:il.'t'!I."'r, _ _ _
,:t,
...
!
<r
(S
:>
>'>
~
:B ~
~ <
e '
~ "1
~ ~
~ ~ \t
~O'"~
Q " ~
~ ~
'.x::. ~, ~
\ I.... ~
C:l ~ \\..
E.';~ '3
~~
~' 0'-
) I
-..; Q...
~ "~
a: .~
Q.
,~ -
.~.~ t)
'-==:t)
'to
>... II
,- . h ......
- .' ..
~ I..
'~~
"~
~tI)
~
,1/
" ~
~
"'~,;
. ":f~.
:...
.h'
,..."..
"'f'
i
, "."
i
-',