Village of Sag Harbor, NY Article X Nonconforming Uses, Buildings and Structures

§ 300-10.1 Applicability.

[Amended 4-21-2016 by L.L. No. 5-2016]

These provisions shall apply to all buildings or structures and all uses of buildings or structures or lots lawfully existing prior to the effective date of this chapter or of subsequent amendments, revisions or reenactments of such chapter, which buildings or structures or uses do not conform to the provisions of said original Zoning Code or to such revisions or reenactments on their effective dates. The existence of two one-family detached dwellings on a single lot in the R-20 District that are lawfully existing prior to the effective date of this chapter or of subsequent amendments, revisions of reenactments of such chapter, which buildings or structures or uses do not conform to the provisions of said original Zoning Code or to such revisions or reenactments on their effective dates, shall constitute a nonconforming use and shall be subject to all the provisions relating to nonconforming uses enumerated in this chapter.

§ 300-10.2 Continuance.

A. Any lawful use occupying any building, structure, lot or land at the time of the effective date of this chapter or any amendment thereto which does not comply after the effective date of this chapter or any amendment thereto with the use regulations of the district in which it is situated may be continued in the building or structure or upon the lot or land so occupied, except as provided in § 300-10.6.

B. A conforming building or structure used by a nonconforming use shall not be reconstructed, structurally altered, restored or repaired to an extent exceeding 100% of the gross floor area of such building or structure unless the use of such building or structure is changed to a conforming use.

C. A nonconforming building or structure that is devoted to a conforming use may be enlarged, reconstructed, structurally altered, restored or repaired, in whole or in part, except that the degree of nonconformity shall not be increased.

[Amended 8-11-2015 by L.L. No. 13-2015]

§ 300-10.3 Single and separate; merger; four-tenths rule; no increase in degree of nonconformity.

The following provisions shall apply to and govern all nonconforming lots wherever located:

A. Proof of existing single and separate ownership. A nonconforming lot may be used and a building or structure may be erected thereon for use in accordance with all other applicable provisions of this chapter, the Village Code and other laws, rules and regulations if proof that the lot has been held in continuous single and separate ownership since before the date on which it became nonconforming is submitted to the Building Inspector. The Building Inspector may require an abstract of title to said lot, which abstract shall be in the usual form, shall be certified by an attorney or title company regularly doing such work in Suffolk County, and shall contain a certification that, since the date the lot became nonconforming, no contiguous property was ever owned by an owner of the subject lot.

B. Merger of nonconforming lots. If at any time a lot with less than the area or width required in the district within which the lot is located shall be held in the same ownership as one or more adjoining parcels, the lot shall lose its status as a nonconforming lot and shall merge with the adjoining parcel. A lot created by the merger of the adjoining parcels remains nonconforming if said parcels as merged are less than the lot area or lot width requirements of the district in which said parcels are situated. No such merger shall occur, however, in the following cases:

(1) Merger by death. No merger shall hereafter result under this chapter where the ownership of a nonconforming lot becomes the same as the ownership of an adjoining parcel through the death of an individual owner of one of the parcels; provided, however, the parcels do not remain in common ownership for a period in excess of three years from the date of death.

(2) Improved nonconforming parcels. No merger shall hereafter result under this chapter where adjacent nonconforming lots that are both improved with single-family residences are held in the same ownership.

C. Yard setback relief. For any lawfully existing single and separate nonconforming lot and solely for the purpose of siting thereon one principal building and any lawful accessory structures, except swimming pools, associated decks, slabs and patios around said pool, pool equipment and tennis courts, the required side and rear yards shall be reduced as set forth below. This setback relief shall apply automatically but is subject to the pyramid law restrictions of § 300-9.3 hereof.

(1) The total dimensions of both side yards for a principal building shall be computed on the basis of 0.4 of the lot width; however, no side yard dimension shall be less than 0.4 of the total dimensions of both side yards computed as aforesaid, and no side yard dimension shall be less than 10 feet.

(2) The total rear yard setback for a principal building shall be computed on the basis of 0.3 of the lot depth; however, no setback for the rear yard of a principal building shall be less than 30 feet.

D. An existing building or structure designed and used for a conforming use but located on a nonconforming lot may be enlarged, reconstructed, structurally altered, restored or repaired, in whole or in part, except that the degree of nonconformity shall not be increased.

[Amended 8-11-2015 by L.L. No. 13-2015]

§ 300-10.4 (Reserved) [1]

[1] Editor's Note: Former § 300-10.4, Extension, was repealed 8-11-2015 by L.L. No. 13-2015.

§ 300-10.5 Change of use.

A nonconforming use shall be changed only to a conforming use, except as provided in § 300-12.6B(3). Any change of use shall require site plan approval.

§ 300-10.6 Abandonment of use.

A. A nonconforming use shall be deemed to have been abandoned:

(1) When it is changed to a conforming use.

(2) In cases where such nonconforming use is of a building or structure designed for such use, when it has been voluntarily discontinued for a period of 12 consecutive months; and in cases where such nonconforming use is of a building or structure designed for such use, when it has not in fact been actually used for a continuous period of three years.

(3) In cases where such nonconforming use is of a building or structure not designed for such use or is of a lot or land whereon there is no consequential building or structure devoted to such use, when it has been voluntarily discontinued for a period of six consecutive months; and in such cases, when it has not in fact been actually used for a continuous period of 18 months.

B. A nonconforming use that has been abandoned shall not thereafter be reinstated.

§ 300-10.7 Compulsory termination.

A. A nonconforming structure or nonconforming use may be subject to compulsory termination by the Village Board of Trustees when it is found detrimental to the conservation of the value of the surrounding land and improvements or to future development of surrounding lands and therefore is tending to deteriorate or blight the neighborhood.

B. In ordering the compulsory termination of a nonconforming structure or nonconforming use, the Village Board of Trustees shall establish a definite and reasonable amortization period during which the nonconforming use may continue while the investment value remaining after the date of the termination order is amortized. Determination of the amount to be amortized shall be based on the value and condition of the land and improvements for the nonconforming use less their value and condition for a conforming use and such other reasonable costs as the termination may cause. The rate of amortization shall be in accordance with reasonable economic practice.

C. Amortization of nonconforming cabaret, disco and nightclub uses.

(1) Termination. The right to maintain a nonconforming cabaret, disco or nightclub shall be terminated either upon the date that there is a change of ownership or operation of any cabaret, disco or nightclub, including the change in any person or entity listed on a license issued by the New York State Liquor Authority, or upon the date that there is a change in the tenancy of any building or part thereof used as a cabaret, disco or nightclub, or within one year of the date that a notice of termination is served upon the owner or operator of a cabaret, disco or nightclub or upon the tenant occupying the area of a cabaret, disco or nightclub or upon the owner of the premises on which a cabaret, disco or nightclub is operating.

(2) Notice of termination. The Building Inspector shall make a determination as to what business or businesses are being operated as cabarets, discos or nightclubs or what building or part thereof is being used as a cabaret, disco or nightclub. Upon making such a determination, the Building Inspector shall serve a notice of termination upon the owner or operator of a cabaret, disco or nightclub or upon the tenant occupying the area of a cabaret, disco or nightclub or the owner of the premises on which a cabaret, disco or nightclub is operating. Said notice shall set forth the location of the premises where the cabaret, disco or nightclub is located, the date of termination and a statement that the owner or operator of the cabaret, disco or nightclub may, within 60 days of the date the notice is served, make an application to the Board of Trustees to extend the termination date. The notice shall be sent to the owner or operator of the cabaret, disco or nightclub by certified mail, return receipt requested, at the address where the cabaret, disco or nightclub is operating. If the mailing is not accepted, then a copy of the notice shall be affixed to the property where the cabaret, disco or nightclub is located and an additional copy shall be sent by regular mail to the address where the cabaret, disco or nightclub is located. Service may also be made to the owner or operator in accordance with the provisions of the Civil Practice Law and Rules.

(3) Hearing.

(a) If an application is filed with the Board of Trustees to extend the termination date of the nonconforming cabaret, disco or nightclub, the Board of Trustees shall schedule a public hearing to consider the application. Notice of the hearing shall be sent to the applicant and to all property owners within 200 feet of the location of the cabaret, disco or nightclub. The notice of public hearing shall set forth the date, time and place of the hearing. Notice of the public hearing shall also be advertised in the official newspaper of the Village.

(b) In any such hearing, the owner shall have the burden of establishing that the original adjusted capital investment of the owner has not been fully amortized from the date the owner commenced operating the nonconforming cabaret, disco or nightclub or the date said uses became nonconforming, whichever date is later. The "original adjusted capital investment," as used herein, is defined to mean the original cost of the owner to establish the cabaret, disco or nightclub use, less all depreciation taken for income tax purposes exclusive of the fair market value of the building or structure in which the cabaret, disco or nightclub is located.

(4) Amortization schedule. The following amortization schedule is adopted by the Board of Trustees to assist it in any hearing to determine whether the termination date of a nonconforming cabaret, disco or nightclub should be extended. It shall be presumed that the original capital investment of the owner or operator of any cabaret, disco or nightclub in existence prior to the date such use became nonconforming is amortized at a rate of $50,000 per year. The owner shall have the burden at any hearing of establishing that the amortization schedule set forth above should not apply.

(5) Invalidity. If any section, subsection, sentence or other portion of this section is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.

§ 300-10.8 Determination of nonconforming use.

The following procedures must be followed prior to the determination of a legally preexisting, nonconforming use by the Building Inspector:

A. At least 10 days prior to the issuance of a certificate of occupancy for a legally preexisting, nonconforming use, the Building Inspector shall cause notice of the application filed by the applicant to be published in the official newspaper of the Village. The notice shall state that comments or objections to a finding of a legally preexisting, nonconforming use shall be made no later than 10 days from the date of the appearance of the notice in the official newspaper (the "notice date").

B. The applicant must send a copy of the application filed with the Building Department to the owners of record of every property which touches or abuts the applicant's property and to the owners of record of every property which is directly across any public or private street from the property involved in the application. The provision shall require that such notice be given to all such owners, including the owners of underwater land or within another governmental jurisdiction, excepting only the following entities: the State of New York, the County of Suffolk and the Village of Sag Harbor. Such notice shall be made by certified mail, return receipt requested, posted at least 10 days prior to the date upon which such determination is to be made and addressed to the owners of record at the latest addresses listed for them on the current Village tax roll. The applicant shall file with the Building Department an affidavit stating that he has complied with this provision, together with the postal receipts evidencing notification of the property owners.

C. Upon the completion of these requirements, the Building Inspector shall make a determination as to the status of the applicant's application.