Appellate Court Finds Petitioner’s Use of Real Property Not Continuation Of Preexisting Nonconforming Use

Petitioner leased his property to several retail stores the Village of Southampton. In 1982, the Village Code was amended to require retail stores operate in at least 800 square feet. In 2008, a Village Building Inspector discovered one of Petitioner’s tenants operated a 100 square foot shop and notified Petitioner of the zoning violation. Petitioner appealed to the Zoning Board of Appeals that the nonconforming unit was a lawful preexisting use, citing an appraisal from its 1999 mortgage application and the certificate of occupancy issued prior to the closing that listed the 100 square foot unit as occupied in 1999. Neither document, however, included a floor plan showing the layout of the shops present in 1999. The Building Inspector responded by producing the 1999 certificate of occupancy and 1981 and 1999 surveys with floor plans and layouts of the seven stores on the property. As these surveys did not show the 100 square foot unit, the ZBA affirmed the Building Inspector's findings.

On appeal, the Court found the record lacked any evidence the 100 square foot unit existed and was used as retail space before or when the zoning code was amended. While the certificate of occupancy gave the petitioner the right to use the seven stores depicted on the 1999 survey, the shop at issue was not portrayed on that survey, thus the certificate did not authorize its use. The court thus held that 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.

The case is East End Holdings, LLC v Village of Southampton Zoning Board of Appeals, 2016 WL 229660 (App. Div. 2d Dep’t.)

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