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The land in Southaven Park rests
in the Town of Brookhaven, it is subject
to Brookhaven zoning laws.
For
example, the land on which the shooting
range is located has been zoned as
"Residential" since 1937. Since
the range did not exist at its present
location until the early 1950's, its
presence on residentially zoned land
classified it as a "Legal
Non-conforming Use". In
fact, the range's current licensee, Mark
Wroobel, said as much in his legal
filings (challenging Brookhaven Town's
noise law_ wherein he wrote that the
range is a "Preexisting legal
nonconforming use".
The shooting range was closed by Suffolk
County on October 1, 2001. The Range was eventually reopened on
July 15, 2006, demonstrating that it was
closed for a period of 4 years and 9
months.
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Brookhaven Town Code (Zoning)
§ 85-372 Nonconforming
uses.
The lawful
use of any building, structure or land
existing at the effective date of the
zoning ordinances of the Town of
Brookhaven may be continued although
such use does not conform to the
provisions of this chapter, provided
that the following conditions are met:
(6) Discontinuance.
The substantial discontinuance of any
nonconforming use for a period of one
year or more terminates such
nonconforming use of a structure or
premises and thereafter such structure
or premises shall not be used, except in
conformity with the provisions of the
Town Code.
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Since the range was closed four 4 years
and 9 months, the "one -year"
requirement is easily met. However
the range supporters consistently argue
that "The County" always intended to
reopen the facility so it cannot be
considered as "abandoned". This
issue is addressed in several court
cases, but the most notable decision in
regard to this issue was rendered by the
New York State Court of Appeals.
In their decision in a landmark case
involving non-conforming use, the court
unanimously ruled that:
"In
New York, the inclusion of a
lapse period in the zoning
provision removes the requirement of
intent to abandon...discontinuance of
nonconforming activity for the
specified period constitutes
abandonment regardless of intent"
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Matter of Toys “R” Us v Silva , 89
NY2d 411, 421 [1996];
(see also,
Town
Bd. of Town of Southampton v
Credidio, 21 AD3d 547, 548 [2005];
Matter of Pica v Bennett, 164 AD2d
859, 862 [1990]; Matter of Village
of Waterford v Amna Enterprises,
AD3d [2006].)
Clearly, the law not only stipulates
that a nonconforming use that has been
discontinued for longer than a specified
lapse period (in this case, one year)
cannot be reestablished, but it also
defines such discontinuance as
"abandonment" (which satisfies the
wording of the PINE BARRENS PROTECTION
ACT), but also that the
"intent" to reestablish a nonconforming
use is irrelevant.
THE QUESTION OF WHETHER OR NOT sUFFOLK
COUNTY INTENDED TO REOPEN THE
RANGE IS MOOT SINCE THE COURT OF APPEALS
DECISION CLEARLY RULES THAT THE
EXISTENCE OF A LAPSE PERIOD SUPERSEDES
ANY ISSUE OF INTENT.
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