Posted by: Patricia Salkin | June 8, 2016

NY Appellate Court holds Nonconforming Use Provision of Town Zoning Code Did Not Apply to Uses already in Conformity

The Town of Huntington Zoning Board of Appeals denied the site plan application of the petitioner 7–Eleven, Inc., which sought to demolish an existing structure on a certain parcel of real property currently being utilized as a restaurant and to construct a convenience store on the property. In this appeal, the petitioners contended that the Supreme Court improperly upheld the ZBA’s decision to deny 7–Eleven approval for a “change of use” under section 198–104 of the Code of the Town of Huntington.

Town Code § 198–104 provides that “a nonconforming use may be changed to … any use which the ZBA shall find to be less intensive and more in character with the uses permitted in the district in which the nonconforming use is located.” The ZBA determined that since utilization of the site as a restaurant was permitted under the zoning regulations of the district in which the property was located, 7–Eleven could not rely on Town Code § 198–104 to change the purpose for which the property was being utilized to a free-standing convenience store, which was a prohibited use of the property under the zoning regulations of the district in which it is located. The petitioners asserted that since the conditions on the site currently did not conform to various dimensional zoning regulations in the district in which the property was located, 7–Eleven satisfied the definition of “nonconforming use” under the Town Code and therefore the ZBA erred in finding that Town Code § 198–104 was inapplicable.

The Court found that the Town Code did not apply to uses that are already in conformity with the zoning regulations of the district in which the property is located. The Court further noted that if, Town Code § 198–104 were read to apply to uses already in conformity, it could be used for the purpose of changing conforming uses so that they are in violation of applicable zoning regulations. Accordingly, the Supreme Court’s decision to uphold the denial of the “change of use” was affirmed.

7-Eleven, Inc. v Town of Huntington, 2016 WL 3177149 (NYAD 2 Dept. 6/8/16)


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