Opinion
November 5, 1970
Cross appeals from a judgment in favor of the State of New York on its counterclaim, entered November 19, 1970, upon a decision of the Court of Claims making an award to claimant, resulting from the appropriation on October 2, 1964 of a portion of claimant's premises in the City of Peekskill. The subject parcel was zoned residential but for years a building thereon housed a foundry, a pre-existing nonconforming use. About 1960 the operating corporation moved its manufacturing to a new location but, allegedly, continued some operations at the old site. The Court of Claims found that the highest and best use was residential, but based its award of $5,050 on the claimed nonconforming commercial use, and rejected the contention that the building could be converted into a home. The State was awarded $3,950, on its counterclaim, the difference between claimant's award and a $9,000 "partial" prepayment. Essential to the lower court's finding of residential highest and best use was a determination of abandonment of the nonconforming use. Although in the absence of special ordinance provision, intent to abandon a nonconforming use coupled with actual discontinuance of the operation must be found in order to cause the loss of the right to maintain a nonconforming use ( City of Binghamton v. Gartell, 275 App. Div. 457), under an ordinance such as that in Peekskill providing that the nonconforming use shall not be re-established if discontinued for over one year, the nonconforming use which has ceased for the prescribed reasonable period may not be resumed, irrespective of the absence of intent to abandon ( Village of Spencerport v. Webaco Oil Co., 33 A.D.2d 634; Matter of Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, affd. 279 App. Div. 795). A discontinuance connotes a complete cessation (cf. City of Binghamton v. Gartell, supra, p. 460) so that a minimal nonconforming function, of itself, would not constitute an abandonment. The decision under review lacks a statement of the essential facts on which the judgment is founded (cf. Conklin v. State of New York, 22 A.D.2d 481). The before value and the total damage figures found by the court are noted to be the same as those supplied by the State's appraiser for a commercial use, if permitted, but the court, having found the highest and best use to be residential, could not exceed the valuations furnished for such use, in the absence of an adequate explanation ( Angus v. State of New York, 32 A.D.2d 863). An award for a residential highest and best use cannot be based on commercial valuations. Judgment reversed, on the law and the facts, and a new trial ordered, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.