Since at least 1963, the property at issue was used as a marina and restaurant along the Hudson River, and as early as 1972 the restaurant offered seasonal outdoor food and beverage service. The property is presently zoned WF-2, a waterfront district, where no uses are permitted as of right, but marinas and restaurants are permitted by special permit. However, the use of this piece of property predated the enactment of the provision requiring a special use permit, and thus is a pre-existing nonconforming use. Between 1996 and 1997, the restaurant owners erected a tent or canopy over the unenclosed area used for outside dining. The zoning board of appeals determined that the tent or canopy did not require a permit as it was neither a “structure” nor a “building” within the meaning of the zoning law since it was not permanently placed upon the land, and because the zoning law does not regulate temporary or seasonal buildings. Neighbors complained, alleging that the State Fire Code requires approval for a tent/canopy from the local code enforcement official. The building inspector then issued a certificate of occupancy that identified that restaurant as one with a seasonal tent/canopy, declaring that the use predates the zoning. The zoning board of appeals upheld this determination and the neighbors again appealed.
The Appellate Division, Second Department, upheld the determination of the zoning board of appeals, finding that “The erection of a tent/canopy over the outdoor dining area is neither a separate ‘use’ nor an expansion of the nonconforming use of the property for a restaurant.” Noting further that the zoning ordinance does not distinguish between indoor and outdoor food consumption, the Court said, “An increase in volume or intensity of the same nonconforming use…is not an expansion of that nonconforming use.” The Court also noted that an interruption of the outdoor service that was occasioned by lack of compliance with State Liquor Authority requirements, did not constitute an abandonment of the restaurant use of the property.
Piesco v. Hollihan, 2008 WL 257381 (N.Y.A.D. 2 Dept. 1/29/2008).
The opinion can also be accessed at:
http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D17817.pdf
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