Second Department Reminds: a Use Cannot Be Legally Nonconforming If It Was Never Legal to Begin With

February 17, 2020

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 that way” is not an absolute defense against a local enforcement proceeding seeking to abate a nonconforming use.

In Matter of Cradit v. Southold Town Zoning Board of Appeals (Docket No. 2017-04066, decided January 29, 2020),  the Appellate Division of the Second Department reviewed a local zoning board’s determination that the appellant’s use of a residence for short-term rentals was not a legal nonconforming use. In 2006, the appellant purchased a residence located in an R-40 zoning district in the Town of Southold. In 2014, she began operating the property as a place for short-term vacation rentals. In 2015, the Town amended its zoning ordinance to prohibit short term rentals, which the code defined as “transient rental properties.” The Town served the appellant with a notice of violation a short time later.

In response to the notice of violation, the appellant applied to the Town’s Zoning Board of Appeals claiming that her use of the residence for short term rentals was a legal nonconforming use and, therefore, protected from the Town’s 2015 zoning amendment. The Zoning Board, and the courts, disagreed. Adopting the Zoning Board’s reasoning, the Appellate Division concluded that the appellant’s use of the residence for short-term rentals was not a single-family use permitted under the applicable zoning prior to 2015. Rather, the appellant had converted the residence to something akin to a hotel or motel use, neither of which were ever permitted in the R-40 zoning district. Therefore, because the appellant was using her property in violation of the zoning ordinance prior to the 2015 zoning amendment, she was precluded from establishing it as a legal nonconforming use as a defense to the Town’s enforcement proceeding.

It is important to note that a use need not have been permitted as of right in order to be eligible for legal nonconforming status later. Again, the use must simply have been legally sanctioned prior to the later-in-time zoning restriction. Thus, a use which has received prior approval, whether pursuant to a special exception permit, conditional use permit, or even a use variance, can be become a legal nonconforming use as long as that prior approval is not lapsed or rescinded.

A copy of the Court’s Decision & Order can be read here: D61952