Supreme Court, Suffolk County Upholds ZBA Determination Authorizing a Change In Nonconforming Use
December 09, 2019
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 North Sea, Southampton, on a 16.8 acre parcel, in the R-20 Zoning District. The property was improved with a pre-existing nonconforming tennis club/tennis camp and the owners sought to use the property as a day camp.
In March of 2012, the ZBA issued a determination in response to the neighbors appealing a Building Inspector Determination. The ZBA found that the proposed renovations and expansion of the operations on the property from a “tennis club/tennis camp” to a “day camp” represented a change from one nonconforming use to another since the uses “were not compatible or interchangeable, pursuant to the Standard Industrial Code.” The ZBA further found that the property owner must seek a variance from the ZBA under Southampton Town Code §330-167(B)(3) for its proposed “day camp” use. That determination went unchallenged.
After this initial 2012 determination, the property owner sought an interpretation from the Building Inspector (who then referred the matter to the ZBA) as to whether adding a pool and sports court to the site represented an expansion of the pre-existing nonconforming use requiring a variance. In December of 2012, the ZBA issued a determination that the replacement of a tennis court with a swimming pool and sports court did not constitute an impermissible expansion of a nonconforming use or a change of use requiring a variance. Rather, the ZBA found that adding the pool and sports court were “customary and incidental” to the pre-existing nonconforming tennis club and/or tennis camp use of the property. The neighbors brought an Article 78 Proceeding and made a motion to the Supreme Court, Suffolk County for a temporary restraining order/preliminary injunction seeking to stay the construction of the swimming pool. By decision entitled, Little Fresh Pond Association et al. v. Town of Southampton Zoning Board of Appeals et al., Index No. 02258/13, dated April 10, 2013, the Court denied the motion for the TRO/Preliminary Injunction. Specifically, the Court found that “there is no meaningful irreparable harm discernable from the construction and putative use of the pool” and that petitioners’ arguments were speculative. This case was reported as disposed on 2/24/14 without a final determination referenced or available on “e-courts”.
Thereafter, the property owner applied to the ZBA for a change in nonconforming use. Specifically, the property owners sought to change from a tennis club/camp to a day camp for children pursuant to Town Code §330-167(B)(3) which states:
In the instances of the following types of variances, the Board of Appeals is hereby specifically empowered to grant the variance pursuant to the guiding principles and the general standards stated in § 330-166B and C and to the provisions which follow.
(3) To grant a certificate of occupancy for a change in a nonconforming use, provided that:
Such change is made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.
In March of 2019, the ZBA granted the variance determining that the change from the tennis club/tennis camp use to a tennis club and/or day camp was beneficial to the general neighborhood. The neighboring property owners and a not-for-profit organized to protect Little Fresh Pond brought the Article 78 Proceeding entitled The Little Fresh Pond Association et al. v. Zoning Board of Appeals of the Town of Southampton and Southampton Day Camp Realty, LLC, Index No. 1910/2019, dated October 10, 2019 challenging the ZBA determination. The petitioners argued that the ZBA exceeded its authority under Town Code §330-167(B)(3) by adding a second, new non-conforming use of the property, namely the day camp use, that required a use variance under New York State Town Law §267-b(2). Petitioners stated that the day camp was a “separate, incompatible and non-interchangeable use from the tennis club and accessory tennis camp.”
The Court found that the ZBA fully considered the standard of review for the application, including the “extent, nature and location of activities” to be conducted on the property in its March, 2012 determination. The Court noted that the ZBA could have required an application for a use variance but declined to do so. The Court held there was an “insufficient basis presented for the Court to find that the Town exceeded its authority in making its determination” and refused to consider that the approved change in nonconforming use was actually an authorization of two separate uses. Moreover, the Court concluded that the ZBA did not err as a matter of law in applying Southampton Town Code §330-167(B)(3) and that its decision was neither arbitrary nor capricious. Ultimately, the petition was denied.