Posted by: Patricia Salkin | December 27, 2016

NY Appellate Court Upholds Denial of Petition to Rescind a Pre-Existing Certificate of Occupancy Issued to the Town of Southampton

The Town of Southampton owned Mecox Bay Park, which included approximately 10 acres and a building constructed in 1939, prior to the enactment of any zoning provisions. The building fell into disrepair in the 1990s, and in June 2012, the Town obtained a pre-existing certificate of occupancy (hereinafter C/O) in order to rehabilitate the building for use as a storage shed for sailing equipment in connection with a Town-sponsored sailing program. On July 2, 2012, the petitioners, some of whom lived near the park, challenged the issuance of the C/O. The Town of Southampton Zoning Board of Appeals upheld the issuance of the C/O, concluding that the building was a “conforming accessory use in a residential zone, part of a larger park use, which is also a conforming use in this residential zone.” The petitioners commenced this CPLR article 78 proceeding, and the Supreme Court denied the petition and dismissed the proceeding.

The court found that, contrary to the petitioners’ contention, the analysis of the ZBA, which included a determination that the subject structure was a “conforming accessory use in a residential zone,” was largely fact-based: thus, deference to the zoning board of appeals was required. Also contrary to the petitioners’ contention, the court found that the Supreme Court correctly determined that the ZBA’s decision to uphold the issuance to the Town of Southampton of the C/O for the subject building was not illegal, arbitrary and capricious, or an abuse of discretion.

Mecox Bay Civic Ass’n, Inc. v. Town of Southampton, 2016 WL 7109151 (NYAD 2 Dept. 12/7/2016)

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