BLACK RIVER A state Supreme Court judge has denied a vacant warehouse owners request to file a late notice of claim against the village in a dispute over the buildings zoning.
Judge Hugh A. Gilberts decision, filed Friday at the Jefferson County clerks office, does not preclude the buildings owner, IBC Sales Corp., Kansas City, Mo., or a potential buyer for the site from pursuing federal claims that the village Zoning Board of Appeals violated the equal protection clause of the U.S. Constitution by selectively enforcing its zoning ordinance against the company.
Stephen A. Gilbert, a principal of United Realty & Development LLC, which wants to buy the property, and Florida Fine Cars & Trucks LLC, which intends to lease the property from United Realty, said Monday that the decision will be appealed and federal litigation will be initiated.
This is not stopping us, Mr. Gilbert said.
IBC Sales operated a Wonder Bread and Hostess distribution center at the 102 W. Remington St. building for decades, closing it in 2006. When the building was erected in the 1930s, there was no zoning in the village. In 1985, an ordinance was enacted that put the building in the Residential A zone, creating a nonconforming use for the commercial property. The company has tried unsuccessfully for several years to sell the building but has found no takers because it can no longer be used commercially. Mr. Gilbert, operations manager of Git R Done automotive repair shop on Route 3, initially wanted to buy the property for use as a satellite operation for the shop.
The ZBA has maintained that while the buildings nonconforming commercial use was grandfathered in when zoning regulations were adopted, IBC Sales lost that status when the building sat vacant or abandoned for more than a year. IBC Sales has countered that the building was never abandoned and its nonconforming use allowance never lapsed, alleging that the village Department of Public Works and Mayor Leland J. Carpenter used the building for storage, which IBC Sales contends was essentially what the company used it for until 2006.
In February, Judge Gilbert sided with the board, ruling that IBC Sales had abandoned the property and that the board properly denied variances that would have allowed the company to use the building for purposes that no longer conformed with village zoning law. IBC Sales has appealed that ruling to the state Appellate Division, Fourth Department. But IBC, along with United Realty and Florida Fine Cars, filed a motion to file a late notice of claim against the village in June. A notice of claim is a necessary precursor to any lawsuit against a municipality.
According to the filing, in addition to constitutional claims, the parties intended to raise state questions of tortious interference with prospective business advantage if the lawsuit were allowed to proceed. In denying the request, Judge Gilbert ruled, among other things, that the companies did not prove the village knew of the business relationship between IBC Sales and the two other companies when it denied the variance, nor that the village knowingly or intentionally interfered with the relationship.
The judge also said that the companies did not provide a reason for the delay in initiating legal action beyond the statutory time limits, stating that the village did not have constructive notice that legal action may stem from the ZBAs denial of the variance. The judge also noted that he has previously decided the matter in the villages favor.
IBC may seek review of that decision in its appeal but may not collaterally attack it in a separate lawsuit, Judge Gilbert wrote.