Posted by: Patricia Salkin | January 31, 2016

NY Appellate Court Finds the Use of a Portion of Real Property Owned by the Petitioner was Not a Continuation of a Preexisting Nonconforming Use

Petitioner owned commercial property located in the business district of the Village of Southampton, which consisted of several retail shops occupied by various tenants. In 1982, the Code of the Village of Southampton was amended to prohibit retail stores from operating in units that were less than 800 square feet. In 2008, the Village’s Building Inspector discovered that one of the petitioner’s tenants was operating a retail shop in a 100 square foot unit and notified the petitioner that the unit violated the zoning code. The petitioner appealed the Building Inspector’s determination to the Village’s Zoning Board of Appeals, arguing that the nonconforming unit was a lawful, preexisting use. The petitioner supported this contention with an appraisal report that was performed in connection with its mortgage application in 1999 and a certificate of occupancy that had been issued prior to the closing, which listed a 100 square foot unit as occupied in 1999. However, neither the appraisal report nor the certificate of occupancy included a floor plan that showed the layout of the seven shops that existed in 1999. The Building Inspector responded with documents from the Building Department, which included the 1999 certificate of occupancy and surveys from 1999 and 1981 showing the floor plan and layout of the seven stores on the property. Because these surveys did not include the 100 square foot unit at issue, the ZBA affirmed the Building Inspector’s determination.

On appeal the court found that the record was still devoid of any evidence demonstrating that the subject 100 square foot unit existed and was being used as retail space in or before 1982 when the zoning code was amended to prohibit such use. While the certificate of occupancy gave the petitioner the right to use the seven stores depicted on the 1999 survey, the unit at issue was not portrayed on that survey, so the court determined the certificate did not authorize its use. Accordingly, the court held that it was not arbitrary and capricious or irrational for the ZBA to conclude that the petitioner’s use of the subject unit was not the continuation of a legal, nonconforming use.

East End Holdings, LLC v Village of Southampton Zoning Board of Appeals, 2016 WL 229660 (NYAD 2 Dept. 1/20/2016)

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