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Appellate court upholds lower court ruling in village of Black River property dispute


BLACK RIVER — A state appellate court has upheld a state Supreme Court judge’s decision denying the owner of a disputed West Remington Street warehouse an opportunity to bring legal action against the village.

The state Appellate Division, Fourth Department, Rochester, unanimously affirmed Judge Hugh A. Gilbert’s August 2012 ruling that IBC Sales Corp., Kansas City, Mo., could not file a late notice of claim against the village over a zoning dispute that has contributed to the 102 W. Remington St. building’s sitting vacant for about seven years. A notice of claim is a necessary precursor to any legal action against a municipality.

IBC Sales operated a Wonder Bread and Hostess distribution center at the site 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 no longer can be used commercially.

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, has lobbied unsuccessfully for a zoning change. Mr. Gilbert, operations manager of Git ’R Done automotive repair shop on Route 3, wants the property for use as a satellite operation for the shop.

The Zoning Board of Appeals has maintained that while the building’s 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 2012, 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 then sought to bring a second, separate action against the village, in which it was prepared to argue additional areas of law that it contended the village violated.

Judge Gilbert denied the company’s motion to file a late claim in the matter, stating, among other things, that IBC Sales did not provide a reason for the delay in initiating legal action beyond the statutory time limits allowed.

In a decision released Friday, the appellate court sided with Judge Gilbert’s ruling but did not provide any additional insight into what led to the determination.

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