Posted by: Patricia Salkin | July 15, 2015

NY Appellate Court Upholds ZBA’s Determination that Town Code Permitted the Construction of a Single-Family Residence in Addition to Existing Nonconforming Business Use

Wainscott Wombles, LLC, purchased the subject property located in a residential zoning district. Before 1975, the only building on the property had a pre-existing nonconforming diner. In 1975, the Zoning Board of the Town of East Hampton approved the application of the previous owner of the property to change the nonconforming use from a diner to a real estate office and antique shop. In June 2011, the Town of East Hampton Building Inspector determined that the Town of East Hampton Town Code permitted the construction of a single-family residence on the property in addition to the existing commercial building. Consequently, the Planning Board of the Town of East Hampton approved an application by the LLC to construct a separate 600 square foot single-family residence on the premises in addition to the existing commercial building. In June of 2012 the ZBA upheld the Building Inspector’s determination, and the state Supreme Court denied petitioner’s resultant Article 78 claims.

The East Hampton Town Code defines commercial property, in relevant part, as “any lot containing a nonconforming business use”, and permits “any one commercial property in any district” to have “two uses.” Accordingly, the court found the ZBA’s determination that the Town Code permitted the construction of a single-family residence in addition to the existing nonconforming business use, and the Planning Board’s determination to approve the application of the LLC to build the single-family residence, were not arbitrary and capricious. The judgment dismissing petitioner’s claims was therefore affirmed.

Concerned Citizens of Wainscott v Planning Board of the Town of East Hampton, 2015 WL 3480252 (NYAD 2 Dept. 6/3/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D45540.pdf


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