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Owner Loses Buyers After Nyack Building Inspector and Zoning Board Of Appeal Strip Property Of Its “Non-Conforming” Warehouse Use
When is a warehouse no longer a warehouse? When does a non-conforming use cease to exist? When is it abandoned, terminated, or discontinued?
Answer to these questions may depend on the outcome of a lawsuit filed in Rockland County Supreme Court by Norman Deutch of ABC Party Rentals in Nyack against the Village of Nyack.
For Norman Deutch and ABC Party Rentals at 149 Burd Street in Nyack, the trouble began when the Village Building Inspector and Zoning Board of Appeals determined last month that Deutch lost his non-conforming “warehouse” use in November of 2022. A non-conforming use is one that pre-existed before the zoning code was established. The property is located in the Nyack DMU (Downtown Mixed Use) zone, which does not permit warehouse uses.
For 16 years, Deutch operated his event business at the Burd Street location, warehousing tables, chairs, party supplies and more. In 2022, he purchased a warehouse in Hackettstown, New Jersey to expand his operation but continued to use the Nyack location for storage. Deutch has operated ABC Party Rentals for 40 years, and bought the Burd Street building in 2018.
However, when he put it on the market for sale in 2022, village officials initially told him that he had to do some upgrades on the roof and heating system. But when he came to the Village to get his building permits for the work, he was told that he’d lost his “non-conforming use” status and could not sell the building for warehouse use.
According to the lawsuit, Deutch claims he never stopped using the Burd Street warehouse. The lawsuit says it continues to function as a warehouse, storing trucks, equipment, and party supplies. The suit also says he pays utilities, gets his mail (including mail from the Village of Nyack), and his website lists his Nyack address as his primary business location.
He says the Orangetown 2023 Final Assessment Role lists his property class as “449 – Other warehouse, distribution and storage facilities,” which indicates that according to the tax role, he’s still a warehouse.
Deutch, represented by Amy Mele, Esq. of New City, says the ZBA decision was arbitrary, capricious, and in violation of lawful procedure, that Deutch was denied due process and the value of his property constituted a “taking” under the Fifth Amendment to the US Constitution.
While shifting his operations to New Jersey, Deutch put the building up for sale for $5.2 million, expecting to sell the building for continued warehouse use. The building, constructed in 1965, is about 28,900 square feet, with 20-foot ceilings. It has four drive-in/roll up doors, and interior loading docks.
The current (DMU) zoning would allow an as-of-right ability to develop multifamily residential units, up to 51 units. The property is offered for sale with a paved parking lot located across the street at 89-91 Jackson Ave.
Deutch, in the lawsuit says, he brought paperwork for permits to the Village of Nyack. Building Inspector Manny Carmona then told Deutch that he wouldn’t be able to market the warehouse as a warehouse because it had lost its non-conforming use in November of 2022 when Deutch bought and relocated to the New Jersey property.
Carmona told Deutch to appeal to the ZBA, according to the suit, adding “he did not need a lawyer and even helped him shape his presentation to the Board.”
According to the lawsuit, the Nyack Zoning Board of Appeals denied Deutch’s appeal, causing the building to lose its value and Deutch to lose his potential buyers, the suit alleges.
Under the Village Code, a non-conforming use cannot be reestablished if its use has been discontinued for any reason for a period of one year or more. The evidence of continued use presented by Deutch did not convince the ZBA that Carmona’s determination was wrong and unanimously (5-0) upheld his decision.
The Nyack Zoning code does not define “discontinuance” or “abandoned.”
Courts have uniformly and consistently held that abandonment or discontinuance does not occur “unless there has been a complete cessation of the nonconforming use.” Courts have also held that the Zoning Board’s interpretation of its code is entitled to court deference.
Village Attorney Dennis Michaels says the Village does not comment on ongoing litigation.
