Owners Have No Constitutional Right to Expand Nonconforming Uses

New York zoning codes typically permit the continuation of nonconforming uses and structures in existence at the time zoning restrictions were put in place. The Town of Brookhaven's code is illustrative. Section 85-883(A) permits continuation of nonconforming uses, subject to a number of conditions. Section 85-883(B) generally allows alteration of, and even, in some circumstances, addition to nonconforming structures. Both sections, however, include qualifications designed to limit expansion of the nonconforming use or structure.

Against that background, the owner of a motel located in the Town of Brookhaven sought to renovate. Although the motel is located in parts of two zoning districts, neither of which permits motels, the motel has operated for decades under a Certificate of Existing Use. In 2015, the owner applied for and received a building permit for "interior and exterior renovations." The permit provided that the town would issue a new Certificate of Occupancy after the building inspector inspected the motel to ensure compliance with the town code. After renovations had started, the building inspector issued a stop work order and advised the owner that he needed to clarify whether the renovations would constitute an impermissible expansion of a nonconforming use. When the owner submitted a survey showing that repairs to the motel's foundation resulted in an increase of the foundation's footprint from 647 to 1000 total square feet, the owner sought a variance for the square-footage increase. The Board of Zoning Appeals concluded that the expansion was not authorized under the zoning ordinance, and also denied the owner's request for a variance. The owner brought an article 78 proceeding challenging the determination, but the Appellate Division upheld the variance denial. Even before the Appellate Division's decision, the owner brought suit in federal district court, contending that the refusal to grant a variance of certificate of occupancy for the renovated hotel constituted an unconstitutional deprivation of property.