Posted by: Patricia Salkin | April 4, 2016

NY Appellate Court Says Zoning Board’s Findings as to Preexisting Nonconforming Uses Were Not Arbitrary and Capricious

Sand Land Corporation owned a 50–acre parcel of real property in a residential zoning district in the Town of Southampton. Wainscott Sand & Gravel Corporation (“WS&G”) owned and operated mining and reclamation activities conducted on that property. In 2005, individual residents of the Town who owned homes nearby, commenced an action to enjoin Sand Land from using the property for certain uses which, they alleged violated the Town’s zoning code. While the neighbors’ action was pending, Sand Land filed an application with the Town’s Chief Building Inspector requesting a “pre-existing certificate of occupancy” for various uses of the property. This proceeding, pursuant to CPLR article 78, was to review a determination of the Zoning Board of Appeals of the Town of Southampton, which vacated those portions of a determination and certificate of occupancy issued by the Chief Building Inspector of the Town of Southampton that found that the use of the subject property for the processing of trees, brush, stumps, leaves, and other clearing debris into topsoil and mulch, and the storage, sale, and delivery of mulch, topsoil, and wood chips, constituted a preexisting nonconforming use.

The court found that contrary to the conclusion reached by the Supreme Court, the findings as to preexisting uses were not arbitrary and capricious, an abuse of discretion, or internally inconsistent on the evidence presented. Here, the evidence supported the Chief Building Inspector’s findings that the operation of a sand mine, including the storage and delivery of sand, constituted a preexisting nonconforming use, and that the receipt of trees, brush, stumps, leaves, and other clearing debris was a preexisting accessory use to this mining operation. Additionally, when presenting the matter to the ZBA, the neighbors only had to show that the evidence submitted by Sand Land in support of its application was insufficient to demonstrate that the challenged uses existed on the subject property prior to the adoption of the prohibitive zoning ordinance.

Considering the record as a whole, the court found that it was reasonable for the ZBA to conclude that these “new uses” constituted a “significant change” from the nonconforming sand mine operation and the accessory receipt of various yard debris. Moreover, when presenting the matter to the ZBA, the neighbors only had to show that the evidence submitted by Sand Land in support of its application was insufficient to demonstrate that the challenged uses existed on the subject property prior to the adoption of the prohibitive zoning ordinance. Accordingly, the Supreme Court erred in annulling the ZBA’s determination.

Sand Land Corporation v Zoning Board of Appeals of Town of Southampton, 2016 WL 1232674 (NYAD 2 Dept. 3/30/2016)


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