Thursday, August 19, 2010

Nonconforming Use

Last night we had a great class at Lieb Cellars in Mattituck on Commercial Real Estate. While discussing Land Use, the class began to ask questions about Nonconforming Use exemptions, which are frequent on the North Fork. To address these questions I explained that Land Use is regulated on the local level and that the class should see the Riverhead Town Code or the Southold Town Code to get their answers. You can locate the Codes by clicking here.

To illustrate some of the facts on Nonconforming Use, I will explain the topic with reference to the Riverhead Town Code.With respect to Riverhead, the Town Code defines Nonconforming Use as "Any building, structure or land lawfully occupied by a use that does not conform to the regulations of the use district in which it is situated." Remember, that a district designates an area of land where certain uses and structures are permitted. Therefore, a Nonconforming Use is a use that is not allowed within the district where the land is located. Additionally, in Riverhead, the Town Code states that "Any building, structure or use existing on the effective date of this chapter [6-29-1976], or any amendment thereto, may be continued on the same lot held in single and separate ownership, although such building, structure or use does not thereafter conform to the regulations of the district in which it is located". As a result, the Code permits uses to be grandfathered from a period before they became impermissible under the Code.

I believe that the confusion last night stemmed from our class misunderstanding the difference between obtaining a variance, which is a deviation from the Town Code through application and approval, and having a Nonconforming Use, which is a particularized exception from the Town Code. To be clear, a variance is available to any landowner, who wishes to apply for an exception to the strict confines of the Code, but such an application must be approved by the Zoning Board to be permissible. In contrast, a Nonconforming Use is an exception to the Town Code, which does not require an application to the Zoning Board because the elements required to be met to qualify for such a use are clearly identified within the Code.

Of additional note, a student in the class kept referencing to a 3 year period where a Nonconforming Use would be lost for non-use. This was incorrect with respect to the Town of Riverhead. Instead, the Code states "No nonconforming use may be reestablished where such nonconforming use has been discontinued for a period of one year". Therefore, the correct period is 1 year. Furthermore, I mentioned that a Nonconforming Use can be lost if the building is destroyed by fire. Again, this should be qualified because the Code states that "Nothing in this chapter shall prevent the complete restoration within one year of a building destroyed by accidental cause". Therefore, if the building is rebuilt within 1 year the Nonconforming Use remains.

I hope that the reader is now clear on the topic of Nonconforming Use and how it differs from a Variance.