The Town of Huntington Zoning Board of Appeals denied the site plan application of Petitioner 7–Eleven, Inc., which sought to demolish an existing restaurant and construct a convenience store on the property.  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.” Petitioners asserted that since the site currently did not conform to various dimensional zoning regulations, the restaurant was a “nonconforming use” under the Town Code.  However, the ZBA determined that since a restaurant was a permitted use under the zoning regulations, 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.

On appeal, the Appellate Division, Second Department held that the Town Code did not apply to uses that already conformed with the applicable zoning regulations. The Court 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.

The case was 7-Eleven, Inc. v Town of Huntington, 140 A.D.3d 889 (2d Dep’t 2016).