Generally, many property owners assume that where a lot is held in single and separate ownership they are entitled to an area variance “as of right.” That is not entirely true. An exception to the single and separate doctrine is the doctrine of merger. Undersized lots that share a common boundary and are owned by the same person or entity
Continue Reading Single and Separate and the Doctrine of Merger
Last month, the Appellate Division, Third Department, held the Mined Land Reclamation Law (“Mining Law”), as amended, does not preempt certain local zoning laws which prohibit mining. Specifically, in Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351 [3d Dept 2021], the Appellate Division held the statute “clearly recognizes that the
Continue Reading Sand Mining Hits Rock Bottom: LI’s Local Laws May Prohibit Future Operations
In a recent decision, Matter of Labate v DeChance, the Second Department held that a landowner could continue to use his property to store construction equipment, despite a zoning ordinance prohibiting that type of use.
By way of background, the petitioner (“Petitioner”) owns property located in Rocky Point, within the Township of Brookhaven (the “Town”), Suffolk County, New York
Continue Reading Second Department Reverses Denial of Existing Use Application, Holds Landowner Has Prior Nonconforming Use in Property for Storage of Construction Equipment
Last February, in Dreyer v Stachecki, 2020 NY Slip Op 50134(U), the Suffolk County Supreme Court denied an unopposed motion for pre-action discovery. CPLR Section 3102(c) authorizes disclosure – prior to commencement – to aid in bringing an action or proceeding. In this case, the petitioner-movant sought the production of documents and depositions in anticipation of his challenges to
Continue Reading Utilizing CPLR 3102(c) Pre-Action Discovery in Article 78 Proceedings – Can’t Go Fishin’
In a recent decision, Matter of Red Wing Properties, Inc. v. Town of Rhinebeck, et al., the Second Department held that a landowner’s intent to continue using its property for mining operations established a valid pre-existing nonconforming use.
Red Wing Properties, Inc. (“Petitioner”) owns roughly 241 acres of property located with the Town of Rhinebeck (the “Town”). For several
Continue Reading Landowner’s Intent to Mine Property Sufficient to Establish Nonconforming Use
When determining whether a use is legally nonconforming for zoning purposes, the key consideration is whether the use was legal prior to the zoning restriction prohibiting it. A use cannot become legally nonconforming if it was not legal from the start, no matter how long it has existed. Consequently, the common assertion that something has “existed forever” or “always been
Continue Reading Second Department Reminds: a Use Cannot Be Legally Nonconforming If It Was Never Legal to Begin With
BANG! Yaphank, New York. In November 2019, after years of protracted ligation, Hunter Sports Shooting Grounds, Inc., (“HSSG”) the operator of the Suffolk County Skeet, Trap & Sporting Clays Range (“Range”), was dealt another blow by the Supreme Court, Suffolk County in Hunter Sports Shooting Grounds, Inc. v Foley.
Acquired by Suffolk County (“County”), in 1963 , the Range
Continue Reading Suffolk County Trap And Skeet Range May Be Silenced By Town Noise Ordinance
The Supreme Court, Suffolk County recently upheld a determination of the Southampton Town Zoning Board of Appeals (“ZBA”) perhaps ending a lengthy and controversial review of the development of a day camp on residentially zoned property with frontage on Little Fresh Pond. The subject property is located at 665 Major’s Path in
Continue Reading Supreme Court, Suffolk County Upholds ZBA Determination Authorizing a Change In Nonconforming Use
Legal pre-existing nonconforming uses (aka grandfathered uses) have a tenuous existence in New York. Although protected by vested property rights in the Constitution, many local zoning ordinances seek to eliminate these vestigial uses with regulations that hinge on continual use. The allowance of nonconforming uses by the courts has been grudgingly tolerated, with the ultimate goal of the zoning code
Continue Reading Nonconforming Uses – Don’t Abandon Them
By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The
Continue Reading Appellate Division Affirms Supreme Court Determination Upholding Southampton Town ZBA Decision