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Fact Questions About Expansion of Nonconforming Use
Andes v. Zoning Board of Appeals, 2023 WL 3856230, AppDiv, Second Dept. (memorandum opinion)
In neighbors' article 78 proceeding challenging a determination that owner's marina and commercial shellfishing operation are lawful pre-existing nonconforming uses, neighbors appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, remitting to the Zoning Board of Appeals for a new determination.
Landowners bought the subject property in 1994. The property is located in a single-family district in which marinas and commercial shellfishing are prohibited. In 2003, landowners obtained building permits for the construction of docks and bulkheading, and obtained a certificate of occupancy in 2008. The following year, they applied for a special permit for reconfiguration of docks with a site plan that depicted a substantial expansion of the docks. In response to concerns about the expansion, the town building department issued a determination that landowner had a preexisting nonconforming marina in 2004, when marinas were first prohibited, and a legal nonconforming commercial shellfishing operation since 1959, when that use was first prohibited. The Zoning Board of Appeals (ZBA) affirmed that determination. Neighbors then brought this article 78 proceeding challenging those determinations. Supreme Court denied the petition and dismissed the proceeding.
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