Published on:

No Evidence of Legal Nonconforming Use

The Appellate Division upheld a Zoning Board of Appeals (ZBA) determination that the owner of property,  containing several retail stores, had failed to demonstrate the location at issue was used for retail purposes prior to a zoning amendment. In Matter of East End Holdings LLC v. Village of Southhampton Zoning Board of Appeals, the Court found  the ZBA had rationally concluded the evidence submitted did not support the property owner’s claims of a legal nonconforming use.

The buildings on the property were constructed in 1976. In 1982 the Village amended the zoning code to provide that no retail use could be less than 800 square feet. In 2008 the Building Inspector issued a violation for operating a retail unit of only 100 square feet. The owner appealed to the ZBA claiming that in 1999, when the property was purchased, an appraisal report and certificate of occupancy (C of O) showed there were seven existing retail locations on the property and one was 100 square feet. The owner claimed that the C of O and appraisal demonstrated  the 100 square foot retail space was previously in use and was therefore legal.

However, the Building Department file contained 1981 and 1999 surveys, with floor plans that showed seven stores, including a 100 square foot space that was not the space at issue. Therefore, the ZBA concluded the space at issue was not legal.

In affirming the lower court dtermination to uphold the ZBA, the Appellate Division held:

“Here, the record is devoid of 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. Further, the ZBA rationally determined that the certificate of occupancy acquired by the petitioner in 1999 did not give it the right to use this particular unit as retail space. Based on the records on file at the Building Department, the certificate of occupancy gave the petitioner the right to use seven stores depicted on the 1999 survey. Since the unit at issue was not portrayed on this survey, the certificate did not authorize its use. Therefore, 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…”

Steven Silverberg