Establishing, Maintaining and Expanding Nonconforming Uses

Zoning ordinances are enacted with the intent to create a compatibility of uses within specific geographic areas of a municipality. However, there are certain uses that disrupt the balance that the ordinances are enacted to create. These are known as nonconforming uses. A non-conforming use is “[a] use of property that is no longer authorized due to rezoning, but lawfully existed prior to the enactment of the existing zoning ordinance …”1 “Due to constitutional and fairness concerns regarding the undue financial hardship that immediate elimination of nonconforming uses would cause to property owners … courts and municipal legislators have adopted a grudging tolerance of such uses.”2 As a result, nonconforming uses are “permitted to continue, notwithstanding the contrary provisions of the ordinance.”3 Nevertheless, the overriding public policy of zoning is to reasonably restrict and eventually eliminate these types of uses.4

To that end many municipalities have adopted special code provisions which establish conditions or circumstances whereby the right to continue a nonconforming use will be lost if the use ceases for a proscribed period of time. For example, the Town Code of the Town of Huntington states that if a nonconforming use ceases to remain continuous and active for a period of one year, then that use is lost and the property in question must be used for a purpose authorized by the Code.5 In other words, failure to continue a nonconforming use may very well mean its end.

In many instances, properties containing non-conforming uses are significantly more valuable than other properties in their surrounding area and the primary concern of owners of these uses is to protect their economic interest. Conversely, municipalities generally view non-conforming uses as detrimental to property values of the surrounding community because they are at odds with the designed and preferred development of the area.6

Since the goal is to ultimately eliminate these uses, when a question concerning the validity of a nonconforming use arises, the burden is on the property owner to “demonstrate that the property was indeed used for the nonconforming purpose … at the time the zoning ordinance became effective.”7 This can be a daunting task for property owners, particularly when the code in question was adopted in the 1930s or 1940s. As in any case, as time passes documents become lost or misplaced and memories begin to fade. Generally speaking, the best evidence to establish a nonconforming use is the live testimony of individuals with firsthand knowledge of the history of a property and its continuous use in a nonconforming manner. In fact, the Town of Babylon goes as far as requiring the presentation of actual witnesses at a public hearing when the request involves any use other than a single family home.8 Clearly, the difficulty of satisfying this burden becomes proportionally more difficult based on the age of the code.

Finding an individual that recalls particular facts of land uses or structures for a code enacted in the 1930s would mean finding an individual between approximately 90 and 100 years of age. While not impossible, as years pass the burden to establish the use becomes increasingly more onerous as people pass away and memories fade. Simply put, uses that have existed for many years can be lost because there is no one that can attest to the use of the property prior to the adoption of the zoning ordinance.

If the property owner fails to locate individuals with direct knowledge of the property, the only alternative is to try to establish the use through the submission of documentary evidence. Documents such as property tax records, aerial photographs, surveys and Sanborn Maps can, in some cases, provide valuable information about a site’s history and uses. Whether a collection of documents and photographs are sufficient to establish continuous nonconforming usage obviously depends on the quality of the evidence in relation to the nonconformity the property owner is seeking to protect. Regardless, it is incumbent upon the property owner to create the best record possible in the event of a judicial challenge to the determination of the municipal board or official charged with reviewing applications for nonconforming uses.

Once a nonconforming use has been established, property owners must be conscious of special regulations applicable to their use. Most municipalities have adopted restrictions governing the expansion of nonconforming uses because, while these uses are permitted to continue, “… they may not be enlarged as a matter of right.”9 Therefore, it is within the sound discretion of the municipality to permit or preclude the expansion of nonconforming uses.10

While some municipalities permit limited expansion of nonconforming uses and structures, others strictly prohibit it. For example, in the Town of Babylon, a legal nonconforming structure may be expanded as of right by 25% of the existing floor area and by 25% of land area for a nonconforming use.11 Conversely, the Town of Hun­tington completely prohibits expansion of nonconforming uses.12

Clearly, the right to continue a nonconforming use is constitutionally protected and the courts will protect property owners’ rights to maintain said uses. However, expansion and/or modification of these uses may not be possible even when the additional use could be considered compatible with the authorized use. For example, in McDonald v. Zoning Board of Appeals of the Town of Islip,13 the court, citing to a municipality’s right to restrict the expansion of nonconforming uses, upheld the determination of the Zoning Board to deny the expansion of a pre-existing, nonconforming landscaping and excavation business to include a mulching and recycling operation. Thus, even though mulching and recycling is arguably an ancillary use of a landscaping business, it was still considered an impermissible expansion and the right to prohibit the expansion was upheld by the court.

There is, however, one exception to this rule which applies when the land is considered a resource (i.e., mines, quarries, landfills, etc.). In those instances the courts have taken a “vested rights” approach.14 A vested right inures to the property owner when he or she invests a substantial sum of money into a property pursuant to a validly issued permit. Once a right is vested, the municipality is estopped from preventing the project or use from going forward.16

According to the Court of Appeals, there are special considerations that should be made because “as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.”17 Simply put, where a property owner evidences his or her intent to use an entire parcel for a particular use, through a significant financial commitment or otherwise, they will be allowed to expand the use to the entire parcel.

Clearly, establishing, maintaining and expanding nonconforming uses is a difficult endeavor. Due diligence is essential when dealing with nonconforming uses because property owners and prospective purchasers stand to lose a great deal if the nonconforming use is not preserved.

John C. Farrell is a land use and municipal law attorney with Sahn Ward Coschignano & Baker as well as a member of the Town of Babylon Zoning Board of Appeals.

1. Toys R Us v. Silva, 89 N.Y.2d 411, 416 (1996) citing from 1 Anderson’s American Law of Zoning § 6.01, at 481-482 [Young 4th ed.]
2. Toys R Us v. Silva, 89 N.Y.2d 411, 416; See also, Cinelli Family Ltd. Partnership v. Scheyer, 50 A.D.3d 1136, 1137 (2d Dept. 2008).
3. Glacial Aggregates LLC v. Town of Yorkshire, 14 N.Y.3d 127, 135 (2010); People v. Miller, 304 N.Y. 105, 107 (1952).
4. Id.; Pelham Esplanade v. Board of Trustees of Village of Pelham Manor, 77 N.Y.2d 66, 72 (1990).
5. See, §198-105; See also, Babylon Town Code §213-226 (Nonconforming use lost if discontinued for a period of six months); Hempstead Building Zone Ordinance § 5 (nonconforming use lost on “abandonment”); North Hempstead Town Code §70-208 (E) (Nonconforming use lost if discontinued for a period of one year); Oyster Bay Town Code § 246- (Nonconforming use lost if discontinued for a period of one year).
6. Buffalo Crushed Stone Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 97 (2009).
7. Jones v. Town of Carroll, 15 N.Y.3d 139, 143 (2010) quoting Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 284-285 (1980).
8. Babylon Town Code §213-26(D).
9. Buffalo Crushed Stone Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 97 (2009); quoting Rudolf Steiner Fellowship Foundation v. De Luccia, 90 N.Y.2d 453, 458 (1997).
10. Incorporated Village of Laurel Hollow v. Owen, 247 A.D.2d 585, 586 (2d Dept. 1998).
11. Babylon Town Code §213-23(B). 12. See, Huntington Town Code §198-102 and §198-103. See also Oyster Bay Town Code § 246- (prohibiting the enlargement of nonconforming uses beyond an existing structure).
13. McDonald v. Zoning Board of Appeals of the Town of Islip, 31 A.D.3d 642 (2d Dept. 2006). 14. See, Jones v. Town of Carroll, 15 N.Y.3d 139, 144; See also, Glacial Aggregates LLC v. Town of Yorkshire,
14 N.Y.3d 127, 135 (2010); Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 97 (2009); Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 285 (1980).
15. Town of Orangetown v. Magee, 88 N.Y.2d 41 (1996); Ellington Constr. Corp. v. Zoning Board of Appeals of Inc. Village of New Hempstead, 77 N.Y.2d 114, 122 (1990).
16. Town of Orangetown v. Magee, 88 N.Y.2d 41 (1996).
17. Jones v. Town of Carroll, 15 N.Y.3d 139, 144.