Matter of Niagara Metals, LLC v. City of Buffalo Zoning Bd. of Appeals

Matter of Niagara Metals, LLC v City of Buffalo Zoning Bd. of Appeals 2026 NY Slip Op 05636 October 2, 2026 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. IN THE MATTER OF NIAGARA METALS, LLC, ALSO KNOWN AS DIAMOND HURWITZ SCRAP, LLC, THOMAS FISHER, TIMOTHY W. EICK, ANDREW BANKOWSKI, IRENE ISCH, TIMOTHY RODGERS, JOYCE RODGERS AND MARSHA EICK, PETITIONERS-APPELLANTS, v CITY OF BUFFALO ZONING BOARD OF APPEALS, CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF PERMIT AND INSPECTION SERVICES AND AIM RECYCLING ERIE, LLC, RESPONDENTS-RESPONDENTS. Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department Decided on October 2, 2026 607 CA 25-00702 Present: Bannister, J.P., Montour, Greenwood, Nowak, And Hannah, JJ. PHILLIPS LYTLE LLP, BUFFALO (LINDSEY E. HAUBENREICH OF COUNSEL), FOR PETITIONERS-APPELLANTS. ROSA ALINA PIZZI, CORPORATION COUNSEL, BUFFALO (ROBERT E. QUINN OF COUNSEL), FOR RESPONDENTS-RESPONDENTS CITY OF BUFFALO ZONING BOARD OF APPEALS, CITY OF BUFFALO, AND CITY OF BUFFALO DEPARTMENT OF PERMIT AND INSPECTION SERVICES. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, NEW YORK CITY (JAY COHEN OF COUNSEL), AND KAVINOKY COOK LLC, BUFFALO, FOR RESPONDENT-RESPONDENT AIM RECYCLING ERIE, LLC. Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Amy C. Martoche, J.), entered March 19, 2025, in a proceeding pursuant to CPLR article 78. The judgment denied and dismissed the petition. [*1] It is hereby ORDERED that the judgment so appealed from is unanimously vacated, the determination is confirmed without costs, and the petition is dismissed. Memorandum: Petitioners, the former operator and neighboring property owners of a scrap yard in the City of Buffalo, commenced this CPLR article 78 proceeding seeking to annul the determination of respondent City of Buffalo Zoning Board of Appeals (ZBA) that there had been no abandonment of the nonconforming use of that site as a junk and salvage yard and that no use variance is required for respondent AIM Recycling Erie, LLC (AIM) to engage in junk and salvage operations at that site. The subject property has been used as a scrap yard for nearly 100 years. In 2016, the City of Buffalo adopted a Unified Development Ordinance, which rezoned the subject property to a district that did not allow for a junk yard or salvage yard (see § 6.1.1, Table 6A). The Ordinance included a clause allowing the nonconforming use of the property to continue (see § 12.1.1 [A]), but it further provided that "[w]henever the active and continuous operation of any nonconforming use, in whole or part, has been discontinued for one year, it constitutes an abandonment of the nonconforming use or part of that use, regardless of any intent to resume operation" (§ 12.1.2 [E]). As a preliminary matter, we note that Supreme Court should have transferred the proceeding to this Court. The petition raises a question of substantial evidence, and the [*2]remaining points made by the parties are not objections that could have terminated the proceeding within the meaning of CPLR 7804 (g) (see Matter of Elderwood at Cheektowaga v Zucker, 188 AD3d 1578, 1579 [4th Dept 2020]). We thus vacate the judgment, and we treat the proceeding as if it had been properly transferred and review the parties' contentions de novo (see id.). Upon that review, we confirm the determination. We further note that "[j]udicial review . . . is limited to whether the administrative action is arbitrary and capricious or lacks a rational basis" (Matter of Concetta T. Cerame Irrevocable Family Trust v Town of Perinton Zoning Bd. of Appeals, 6 AD3d 1091, 1092 [4th Dept 2004]; see Matter of Duchmann v Town of Hamburg, 90 AD3d 1642, 1643 [4th Dept 2011]). The ZBA "is vested with great discretion . . . , [and its] determinations are entitled to great deference" (Duchmann, 90 AD3d at 1643 [internal quotation marks omitted]). "[T]he determination of a zoning board regarding the continuation of a preexisting nonconforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result" (Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683, 685 [2002]; see Matter of Toys "R" Us v Silva, 89 NY2d 411, 423 [1996]). "When reviewing the determinations of a Zoning Board, courts consider 'substantial evidence' only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination" (Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]). Petitioners contend that they established that the nonconforming use was abandoned for at least one year beginning in March 2020, when the former operator ceased operations at the property and directed customers to another location. We reject that contention. Here, the ZBA's determination that the prior nonconforming scrap yard use was not abandoned is both rational and supported by substantial evidence (see P.M.S. Assets, 98 NY2d at 685; Toys "R" Us, 89 NY2d at 423). A "junk yard" is defined as "any place of storage or deposit, whether in connection with another business or not, where two or more unregistered, old, or secondhand motor vehicles, no longer intended or in condition for legal use on the public highways, are held" (General Municipal Law § 136 [2]). Petitioners established that the former operator did not receive vehicles or materials at the property after March 2020, but they offered no proof that motor vehicles were not held or stored at the property after that time. Moreover, respondents submitted evidence that extensive contamination at the property was reported to the New York State Department of Environmental Conservation (DEC) in July 2020 and the DEC issued a Decision Document in June 2021, which found, inter alia, that "walking, digging or otherwise disturbing the soil" at the site could expose people to such contaminants. We conclude that the ongoing remediation of the scrap yard through the New York State Brownfield Cleanup Program constituted a continuation of the nonconforming junk yard or scrap yard use (see Matter of HV Donuts, LLC v Town of LaGrange Zoning Bd. of Appeals, 169 AD3d 678, 679 [2d Dept 2019]). To the extent that petitioners contend that evidence submitted after the hearing demonstrates that the nonconforming use of the scrap yard was abandoned, inasmuch as the DEC would have permitted nonconforming use scrap operations at the property despite the contamination, our review "is limited to the record before the agency and proof outside the administrative record should not be considered" (Concetta T. Cerame Irrevocable Family Trust, 6 AD3d at 1092 [internal quotation marks omitted]). Finally, the ZBA's determination that petitioners failed to prove that there would be any expansion or increased intensity of use at the site is rational and supported by substantial evidence (see generally Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318, 323 [1974]). Entered: October 2, 2026 Ann Dillon Flynn Clerk of the Court