Posted by: Patricia Salkin | December 1, 2007

NY Appellate Court Finds ZBA Violated Limits on Expansion/Enlargement of Nonconforming Uses

The Town of Southampton’s zoning code authorizes the zoning board of appeals to grant a variance for the expansion or enlargement of a nonconforming use of no more than 50% of the floor area of that use, as measured from the date the use first became nonconforming (the 50% rule).    

The zoning board of appeals granted a variance to allow the expansion of two structures on certain real property that benefited from the nonconforming use status as a labor camp for migrant workers. The original first structure was erected prior to the enactment of the1957 zoning ordinance, but the second structure was added in 1964. The zoning board concluded that the first structure did not constitute a nonconforming use in 1957, because the building permit and certificate of occupancy would otherwise not have been issued in 1963 and 1964 when the second structure was added.  The Appellate Court disagreed, finding that the use as migrant housing became nonconforming upon the enactment of the 1957 ordinance, and when the second structure was added in 1964, the zoning ordinance in effect at the time allowed for the expansion of the nonconforming use to include the second structure.  Therefore, the 50% rule had already been applied to the property in 1964.    

Louchheim v. Zoning Board of Appeals of the Town of Southampton, 843 N.Y.S.2d 180 (A.D. 2nd Dept. 2007). The opinion can also be accessed at: www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2007/D16515.pdf


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