Posted by: Patricia Salkin | December 27, 2011

NY Appellate Court Holds Owner is Not Entitled to Continue Nonconforming Use and Upheld ZBAs Denial of Variance

Petitioner Steiert Enterprises, Inc. (hereinafter Steiert) owns a 1.2-acre parcel of real property that is in a residential zoning district. For over sixty years, the property was operated as a nonconforming nursery which included a one-family building on the northern part of the property (hereinafter the North Building). However, since 1971 the North Building has been used solely as a part of the nonconforming nursery. The City issued a certificate of occupancy, stating the North Building was restricted to use as a one-family dwelling. After this certificate was issued, Steiert closed on the property. Steiert then submitted an application to the Zoning Board of Appeals of the City of Glen Cove (hereinafter the ZBA) requesting that the ZBA: (1) amend the certificate of occupancy to recognize the preexisting use of the building as a nursery; (2)  allow for operation of a landscape maintenance and design business on the property; (3) approve an area variance to erect a prefabricated accessory storage building; and (4) allow the North Building to be used for commercial purposes similar to its prior nonconforming use. Following a hearing, the ZBA denied all of Steiert’s requests save for one, concluding that the North Building could be used in its entirety for commercial purposes but could not be used for a mixed residential and commercial use as this is not permitted in an R-3A zoning district. Steiert appealed. The Supreme Court denied his petition, and the present appeal ensued.

The appellate court began by noting that, because local zoning boards have broad discretion, its review is limited to determining whether the record indicates the board acted “illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure.”  The Court stated that in considering an application for an area variance, a zoning board should weigh the benefit to the applicant if the variance is granted against the detriment to the health, safety, and general welfare of the community if the variance is granted. In balancing these interests, the zoning board should consider (i) whether the granting of the area variance will have a detrimental or undesirable effect on the neighborhood; (ii) whether the applicant can achieve the same benefit without the area variance; (iii) how substantial the requested area variance is; (iv) whether the variance will adversely affect the physical or environmental condition of the neighborhood; and (v) if the alleged difficulty was “self-created.” The Court noted that the board is not required to supply supporting evidence for each factor so long as its ultimate conclusion, balancing the relevant factors, is rational.   The Court found that the ZBA properly weighed the relevant factors and that the ZBA had a rational basis for its decision.

The Court noted that nonconforming uses of property are generally viewed as detrimental to local zoning schemes and as against public policy. Therefore, a zoning board is within its power and the courts will enforce “a municipality’s reasonable circumspection of the right to expand the volume or intensity of a prior nonconforming use.” The Court found that ZBA properly determined that the operation of a landscaping design and maintenance business on the property was not a mere continuation of the prior nonconforming use of the property as a nursery, but rather it was an impermissible expansion of the prior nonconforming use. The Court also upheld the ZBA’s conclusion with respect to the North Building because the applicable zoning code states that once a nonconforming use is discontinued for a year or more the owner has no right to resume the nonconforming use.

Steiert Enterprises, Inc. v. City of Glen Cove, 2011 WL 6224616 (N.Y. App. Div. 2 Dept. 12/13/2011)

The opinion can be accessed at:

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