In 2007, Miller Beach Surf Club, Inc. (“Club”), applied 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, which the BZA granted. In 2008, Petitioner Martinos (“Petitioner”) commenced an Article 78 proceeding to annul the BZA's determination. The Supreme Court granted the petition, annulled the determination, and remitted the matter to the BZA for a new determination. Following remittal, the BZA granted the Club's applications again. Petitioner commenced a second Article 78 proceeding alleging that the BZA's determination was arbitrary and capricious. The Supreme Court denied the parts of the petition to annul the BZA's determination to grant the applications for a certificate of existing use and an extension of nonconforming use. Petitioner appealed.

The Appellate Division, Second Department began by noting that zoning boards determinations are entitled to great deference, and such determinations will only be set aside where “illegal, arbitrary and capricious, or irrational.” The Court also 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.” Accordingly, the owner bears the burden of establishing that the pre-existing use 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, and was thus 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, as opposed to a mere increase in volume or intensity of the same nonconforming use that previously existed. Therefore, the BZA's decision to grant the Surf Club's application violated the Code of Town of Brookhaven § 85–883(A)(2), prohibiting the extension of nonconforming uses. Accordingly, the Court held that 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.  The remaining contentions in the petition were dismissed.

The case was Martinos v Bd. of Zoning Appeals of Town of Brookhaven, 138 A.D.3d 859 (2d Dep’t 2016).