| Matter of Louchheim v Zoning Bd. of Appeals of Town ofSouthampton |
| 2007 NY Slip Op 07702 [44 AD3d 771] |
| October 9, 2007 |
| Appellate Division, Second Department |
| In the Matter of Jeffrey Louchheim et al.,Appellants, v Zoning Board of Appeals of Town of Southampton et al.,Respondents. |
—[*1] Garrett W. Swenson, Jr., Town Attorney, Southampton, N.Y. (Kathleen Murray of counsel),for respondent Zoning Board of Appeals of Town of Southampton. Twomey, Latham, Shea, Kelley, Dubin, Reale & Quartararo, LLP, Riverhead, N.Y. (DavidM. Dubin and Martin D. Finnegan of counsel), for respondent NL Housing, LLC.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Boardof Appeals of the Town of Southampton dated October 20, 2005, which granted the applicationof NL Housing, LLC, for a variance permitting the enlargement or extension of a preexistingnonconforming use, the petitioners appeal from a judgment of the Supreme Court, SuffolkCounty (Berler, J.), entered May 16, 2006, which denied the petition and dismissed theproceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is granted, the determination is annulled, and the application for a variance to extend anonconforming use is denied.
In 2005 NL Housing, LLC (hereinafter NL), submitted an application to the Zoning Board ofAppeals of the Town of Southampton (hereinafter the ZBA) for a variance to allow expansion oftwo structures on certain real property which benefitted from a preexisting nonconforming use asa labor camp for migrant workers. The ZBA granted the variance for an expansion not exceeding50% of the floor area of the existing structures (see Code of Town of [*2]Southampton [hereinafter Southampton Code] § 330-167 [B][1] [a]). The petitioners correctly contend that the ZBA's determination violated SouthamptonCode § 330-167 (B) (1) (a), which authorizes the ZBA to grant a variance permitting theenlargement or extension of no more than 50% of the floor area of a nonconforming use, asmeasured from the date the use first became nonconforming (hereinafter the 50% rule).
Ordinarily, "[i]n a proceeding pursuant to CPLR article 78 to review a determination of azoning board of appeals, a zoning board's interpretation of its zoning ordinance is entitled togreat deference" (Matter of Brancato vZoning Bd. of Appeals of City of Yonkers, N.Y., 30 AD3d 515, 515 [2006]; see Matter of Ferraris v Zoning Bd. ofAppeals of Vil. of Southampton, 7 AD3d 710, 711 [2004]; cf. Matter of HomeDepot USA v Baum, 243 AD2d 476, 478 [1997]). Where, however, as here, the question isone of purely legal interpretation of statutory terms, deference to the zoning board's interpretationof its zoning ordinance is not required (see Matter of Brancato v Zoning Bd. of Appeals of City of Yonkers, N.Y.,30 AD3d 515 [2006]).
It is undisputed that the first of the two structures was erected prior to the enactment of thefirst zoning ordinance in 1957. The second structure was added in 1964, after a building permitand a certificate of occupancy were issued. In granting NL's application for a variance to extendthese uses, the ZBA concluded that the first structure did not constitute a nonconforming useupon the enactment of the first zoning ordinance in 1957, reasoning that the building permit andcertificate of occupancy would otherwise not have been issued in 1963 and 1964 when thesecond structure was added. We disagree. The use as migrant housing became nonconformingupon the enactment of the 1957 ordinance. When the second structure was added, the zoningordinance in effect at that time allowed for the expansion of a nonconforming use to include asecond structure. The ZBA incorrectly interpreted the issuance of a certificate of occupancy asevidence of the existence of a conforming use. Thus, the grant of the present variance violatedthe 50% rule articulated in Southampton Code § 330-167 (B) (1) (a) (see Matter ofGladstone v Rush, 277 AD2d 313, 313-314 [2000]), which must be applied to the floor areaexisting when the use first became nonconforming in 1957.
In view of the foregoing, we need not reach the parties' remaining contentions with respect tothe State Environmental Quality Review Act (see ECL art 8). Crane, J.P., Goldstein,Skelos and Carni, JJ., concur.