In Abbatiello v Town of North Hempstead, 164 A.D.3d 785 [2d Dept. 2018], the Second Department recently reversed Supreme Court, Nassau County and granted the petitioner’s CPLR Article 78 challenge to the Town of North Hempstead Board of Zoning Appeals (“Board”) denial of a use variance. In finding that the house was a “legal nonconforming” 2-family residence, the Appellate Division ordered the Town to issue the requested use variance.
A legal nonconforming use, commonly referred to as “grandfathered”, is a use of property which lawfully existed prior to the enactment of a zoning ordinance which now prohibits it. The “legal nonconforming” use doctrine is a fact sensitive inquiry that protects property rights, which is directly at odds with a municipality’s comprehensive plan for an area.
The courts are routinely the venue used to protect legal nonconforming uses property rights. In Abbatiello, when the petitioner purchased the property in 1977, he believed that the house was a legal two-family residence. Since he purchased the property, the petitioner has been renting out the two units, and he has obtained various permits from the Town allowing him to do so. In October 2013, the petitioner applied for a variance to permit him to continue using the property as a two-family dwelling. The Town rejected the application, and the petitioner appealed to the Board, which ultimately denied the petitioner. The Supreme Court affirmed the Board’s denial.
In reversing the Supreme Court, the Appellate Division found that the property owner was entitled to the use variance permitting him to use the property as two-family dwelling for rental purposes. The owner presented evidence, including affidavits from neighbors and others who had lived in community for many years, which was sufficient to establish that property was legal two-family residence prior to amendments to the town zoning code, and there was no evidence presented to demonstrated that property had been converted into two-family dwelling after amendments. As the Court noted, critical to establishing a legal nonconforming use, a property owner must demonstrate that the allegedly preexisting use was legal prior to the enactment of the zoning ordinance that purportedly rendered it nonconforming. Id.
If you are facing zoning challenges to a use that is “grandfathered” you may be able to use the “legal nonconforming” doctrine to protect your property right(s).