Posted by: Patricia Salkin | April 30, 2016

NY Appellate Court Annuls Determination of Zoning Board As Arbitrary and Capricious Since Nonconforming Use was not Allowed to be Expanded

In 2007, Miller Beach Surf Club, Inc. (Surf Club), submitted applications to the Board of Zoning Appeals of the Town of Brookhaven (BZA) for certificates of an existing use and for an extension of a nonconforming use. The BZA granted the applications. In 2008, the petitioner Martinos commenced a proceeding to annul the BZA’s determination. The trial court granted the petition, annulled the determination, and remitted the matter to the BZA for a new determination.

Following remittal, the BZA granted the Surf Club’s applications again. The petitioner commenced a second proceeding alleging that the BZA’s determination was arbitrary and capricious. The trial court denied the parts of the petition which were to annul the BZA’s determination to grant the applications for a certificate of existing use and an extension of nonconforming use. The petitioner appealed.

The appellate court reminded that determinations of local zoning boards are entitled to great deference, and will be set aside only if it is illegal, arbitrary and capricious, or irrational. Further, the court noted that “… nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance.” “ The owner must establish that the allegedly pre-existing use or structure was legal prior to the enactment of the prohibitive zoning ordinance. Here, the Surf Club established that its existing use of the clubhouse, office building, and one-family dwelling were legal prior to the enactment of the zoning ordinance, which rendered that existing use nonconforming. The Surf Club established the existence of a legal nonconforming use. However, the Surf Club’s erection of the decks, the awning, the gazebo, and the detached shed and the completion of certain alterations to its clubhouse, constituted an impermissible extension of the nonconforming use, not just a mere increase in volume or intensity of the same nonconforming use. Therefore, the BZA’s determination to grant the Surf Club’s application violated the Code of Town of Brookhaven § 85–883(A)(2), which prohibited the extension of nonconforming uses. Accordingly, the portion of the BZA’s determination which granted the Surf Club’s application for an extension of nonconforming use was arbitrary and capricious and should have been annulled by the court below.

Martinos v Bd. of Zoning Appeals of Town of Brookhaven, 2016 WL 1442176 (NYAD 2 Dept. 4/13/2016)



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