Jahn v. Town of Patterson

8 Citing cases

  1. State ex Rel. Peterson v. Burt

    42 Wis. 2d 284 (Wis. 1969)   Cited 16 times
    In Peterson, "[t]he sole issue presented" was "as follows: Does sec. 28.05(3)(f) 1, Madison General Ordinances, providing for relinquishment of nonconforming use if such use is discontinued for a continuous period of one year, eliminate the necessity of proving intent to abandon?"

    (1951), 201 Misc. 220, 104 N.Y. Supp. 2d 247. See Jahn v. Town of Patterson (1965), 23 App. Div. 2d 688, 257 N.Y. Supp. 2d 639.Franmor, supra, footnote 11, at page 223.

  2. Riverhead v. Envtl

    50 A.D.3d 811 (N.Y. App. Div. 2008)   Cited 15 times

    To the extent that the petition seeks, in effect, to review the determination to grant the permit initially, it is barred by the applicable statute of limitations ( see CPLR 217). Since the relief requested by the Town is thus not available on the basis of the allegations in the petition, the proceeding was properly dismissed ( see Matter of John v Town of Patterson, 23 AD2d 688).

  3. Matter of Reden v. Nassau County Civil Serv

    133 A.D.2d 694 (N.Y. App. Div. 1987)   Cited 1 times

    The instant petition failed to include all the essential facts necessary to give such notice or to support its conclusory allegations. Moreover, to maintain a petition in the nature of mandamus, the petitioner must have a clear right to the relief requested (see, Matter of Jahn v. Town of Patterson, 23 A.D.2d 688). As an individual on a preferred list, the petitioner has no clear right to the reemployment she seeks (see, Matter of Hartley v. Human Resources Admin., 132 A.D.2d 699). Special Term, therefore, acted properly in dismissing the petition. Mangano, J.P., Bracken, Brown and Niehoff, JJ., concur.

  4. Matter of Prudco Realty Corp. v. Palermo

    93 A.D.2d 837 (N.Y. App. Div. 1983)   Cited 17 times
    In Matter of Prudco Realty Corp. v Palermo (93 A.D.2d 837, affd 60 N.Y.2d 656), the Second Department again conferred standing upon a petitioner because of its ownership of nearby realty, in this case 200 feet distant.

    The evidence showed that the subject premises had not been operated as a gasoline service station for a period of at least four years, and had been leased to parties who used them in conformity with the provisions of the ordinance. Under the circumstances, the owner's intent to maintain the nonconforming use is irrelevant, and such use has been abandoned as a matter of law ( Matter of Franmor Realty Corp. v LeBoeuf, 201 Misc. 220, affd 279 App. Div. 795, mot for lv to app den 279 App. Div. 874; Matter of Jahn v Town of Patterson, 23 A.D.2d 688; Gauthier v Village of Larchmont, 30 A.D.2d 303, mot for lv to app den 22 N.Y.2d 646; Village of Spencerport v Webaco Oil Co., 33 A.D.2d 634; Baml Realty v State of New York, 35 A.D.2d 857; Matter of Hanna v Crossley, 40 A.D.2d 577; Matter of Sun Oil Co. of Pa. v Board of Zoning Appeals of Town of Harrison, 57 A.D.2d 627, affd 44 N.Y.2d 995). Thus, the respondent zoning board of appeals was without power to grant a certificate of existing use for the operation of the subject premises as a gasoline service station, and its determination was erroneous as a matter of law.

  5. Matter of Ford v. Vallee

    55 A.D.2d 799 (N.Y. App. Div. 1976)

    The inmates at the facility have representation by the prisoners assistance project, in addition to the assistance of counsel which may be assigned by a court. Therefore, we conclude that the inmates are not being deprived of "access to the courts" by the library use regulations and that respondent has acted in a reasonable manner in fulfilling his statutory powers to manage the facility (Correction Law, § 18). Since the allegations of the petition were insufficient on their face to prove a denial of access to the courts, the dismissal of the petition prior to filing an answer by respondent was not improper (Matter of Jahn v Town of Patterson, 23 A.D.2d 688). Finally, in our opinion, this action is not properly a class action because there are individual determinations to be made as to how each of the inmates could allegedly be denied access to the courts (see Bellamy v Judges in N.Y. City Criminal Ct., 41 A.D.2d 196). Judgment affirmed, without costs.

  6. Matter of Pete-Lor, Inc. v. Haber

    39 A.D.2d 40 (N.Y. App. Div. 1972)   Cited 3 times

    However, this issue is not before the court on the present appeal. Additionally, it appears to be conceded that, by reason of the amendment of the ordinance in 1950, the granting of a building permit for the erection or enlargement or extension of the preexisting automobile service station was illegal and that no rights were acquired under the permit, which went beyond the provisions of the zoning ordinance ( Matter of Jahn v. Town of Patterson, 23 A.D.2d 688; Matter of Jayne Estates v. Raynor, 22 N.Y.2d 417; Marcus v. Village of Mamaroneck, 283 N.Y. 325; Matter of B G Constr. Corp. v. Board of Appeals of Vil. of Amityville, 309 N.Y. 730). I do not agree with the finding of the Special Term "that an auto body repair shop was a public garage and a permitted use in 1954-55."

  7. Village of Spencerport v. Webaco Oil Co.

    33 A.D.2d 634 (N.Y. App. Div. 1969)   Cited 15 times

    orandum: Although in the absence of special ordinance provision, intent to abandon a nonconforming use coupled with actual discontinuance of the use must be found in order to cause the loss of the right to maintain a nonconforming use ( Gauthier v. Village of Larchmont, 30 A.D.2d 303, 305; City of Binghamton v. Gartell, 275 App. Div. 457; 8A McQuillin, Municipal Corporations [1965, revd.], § 25.192; 2 Rathkoff, Law of Zoning and Planning, p. 61-3, § 2; 101 C.J.S., Zoning, § 198), the ordinance in this case provides that discontinuance of a nonconforming use for a period of one year shall result in the loss of the right to resume it without a permit. Such a provision is deemed to supply as a matter of law the element of intent, so that discontinuance of the nonconforming use for such period, if reasonable in length, amounts to an abandonment of the use ( Matter of Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, affd. 279 App. Div. 795, mot. for lv. to reargue, den., 279 App. Div. 874; Matter of Jahn v. Town of Patterson, 23 A.D.2d 688; see Gauthier v. Village of Larchmont, supra; 8A McQuillin, Municipal Corporations [1965, revd.], § 25.190; Anderson, Zoning Law and Practice in New York State, §§ 6.45, 6.46; 2 Rathkoff, Law of Zoning and Planning, p. 61-4, § 3). This construction, we believe, is consonant with the objects of municipal zoning (see Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553; and see 8A McQuillin, Municipal Corporations, [1965, revd.] § 25.189; Anderson, Zoning Law and Practice in New York State, §§ 6.47, 6.48). We affirm the finding of fact by the Trial Justice that the nonconforming use was discontinued for more than one year.

  8. Marchese et al. v. Norristown B. Zon. B. of A.

    277 A.2d 176 (Pa. Cmmw. Ct. 1971)   Cited 32 times
    In Marchese, an owner of a legal non-conforming garage used for daily parking and maintenance of construction trucks (specifically bulldozers, loaders, and thirty-five other trucks) and equipment, moved the majority of his business from the garage and used it primarily for storage. Thereafter, owner leased the garage to a tenant who used it to install refrigeration equipment onto small ice cream vending vehicles owned, in most instances, by other individuals.

    We do not go as far as New York where it has been held that a clause prohibiting resumption of a nonconforming use after discontinuance for one year obviates the necessity of proving actual abandonment as well as the intent to abandon. Town of Brookhaven v. Capello, N.Y.L.J., June 2, 1965, p. 22; Jahn v. Town of Patterson, 23 App. Div. 2d 688, 257 N.Y.S.2d 639 (1965). To our knowledge, the only Pennsylvania case which has dealt specifically with a one-year time limitation provision is Elkins-Rydal Company v. Brigham, supra, where "a nonconforming use was lost by abandonment when nothing was done to preserve it for over one year", the zoning ordinance reading, "Abandonment. If a nonconforming use of land or of a building ceases or is discontinued for a continuous period of one (1) year or more, subsequent use of such building or land shall be in conformity with the provisions of this Ordinance. . . ."