Archive for April, 2011

Nonconforming Use – use it or lose it!

Thursday, April 28th, 2011

In an unpublished case, Wilderness Waters & Woods Preserve, LLC v Oneida County Board of Adjustments, the courts reviewed a decision by Onieda County to deny a resort permission to convert to condominiums.

A resort had operated as a nonconforming use for some time.  However, in the early 2000s, business had apparently tapered off, and the resort was used less and less.  In 2006 the resort saw very little, possibly no use as a resort, and in December of 2006 the owner sold the resort to Wilderness Waters.  Wilderness cleaned up and restored the property and applied to Oneida County for permission to convert the resort to condominiums.  The Oneida County Board of Adjustment denied the application, finding that the nonconforming use as a resort had been abandoned for a period of longer than one year, thus the legal nonconforming status was lost.

Wilderness sought certiorari review in court, and presented some evidence that the resort had been used during that one year period, but there was substantial evidence that it had not been used, including a 2006 tax return which showed zero income for the resort (apparently proving there had been no paid guests).  The Circuit Court and the Appeals Court upheld the Board decision, noting that in these types of reviews of board decisions, courts do not weigh the evidence and retry the case, but review for abuse.  If the board decision can reasonably be supported, it must be upheld, even if a court might have come to a different decision.  Here there was solid evidence to support the Board’s position, and thus the courts refused to overturn the County Board’s decision.