Town of Southampton, NY Nonconforming Uses, Buildings and Structures

[Amended 5-13-1986 by L.L. No. 7-1986; 12-9-1986 by L.L. No. 20-1986; 12-8-1987 by L.L. No. 9-1987; 7-24-1990 by L.L. No. 23-1990; 12-22-1992 by L.L. No. 55-1992; 7-12-2005 by L.L. No. 37-2005]

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 § 330-119.

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.

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, and the provisions of Subsection B shall not apply, except that the degree of nonconformity shall not be increased.

A nonconforming lot separately owned and not adjoining any lot or land in the same ownership at the effective date of this chapter and not adjoining any lot or land in the same ownership at any time subsequent to such date may be used, or a building or structure may be erected on such lot for use, in accordance with all the other applicable provisions of this chapter, provided that proof of such separate ownership is submitted in the form of an abstract of title showing the changes of title to said lot, which abstract shall be in the usual form, shall be certified by an attorney or a company regularly doing such work in Suffolk County or by a corporation duly licensed to examine and insure title to real property in Suffolk County and shall contain a certification that no contiguous property was owned by an owner of the property involved since the date of any previously applicable zoning law. Such lot shall be granted relief for side and rear yard dimensions and lot coverage as follows:

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

(3)

In the case of a single and separate lot meeting the requirements of Subsection D of this section for a buildable lot which is located in a major subdivision plat approved after October 14, 1957, by the Planning Board of the Town of Southampton and filed with the Suffolk County Clerk's office or in a minor subdivision plat approved after April 17, 1975, by the Planning Board of the Town of Southampton and filed with the Southampton Town Clerk's office, relief for all front, side and rear yard and area dimensions shall be granted to the extent that such front, side and rear yard and area dimensions were required at the time the map was originally filed as required by law.

(4)

Lot coverage:

Lot Area (square feet)	Lot Coverage
0 - 59,999	20%
60,000 - 79,999	15%
80,000 - 199,999	10%
200,000 and up	5%

(5)

Accessory structure setbacks (residential only):

[Added 3-10-2009 by L.L. No. 7-2009]

Lot Area (square feet)	Side and Rear Yards (feet)
0 - 39,999	10
40,000 - 59,999	20
60,000 - 199,999	30

An existing building or structure designed and used for a conforming use but located on a nonconforming lot, whether the building is conforming or nonconforming with respect to lot coverage and minimum yard requirements, may be enlarged, reconstructed, structurally altered, restored or repaired, in whole or in part, except that the degree of nonconformity shall not be increased.

Notwithstanding the provisions of § 330-115D, where a legally existing substandard lot comes into the same record ownership as one or more adjacent lots solely by reason of the death of a previous record owner, the owner of said lots in the same record ownership shall have three years from the date of death of the previous owner causing the lots to be in the same ownership to place the lots into single and separate ownership. Failure to place lots in single and separate ownership within said parcel shall result in the merger of substandard lots for zoning purposes.

[Amended 5-11-2004 by L.L. No. 19-2004[1]]

Purpose and findings.

(1)

Disbursed throughout the Town in residential districts are preexisting, nonconforming uses (i.e., uses that predate the land use regulations that bear on them), including bars, restaurants and nightclubs. Most nonconforming uses are fairly benign, at least in terms of the public's perception. But other nonconforming uses generate traffic, noise or pollution, or present unsightly development, thereby diminishing the value and enjoyment of neighboring residential uses. To a great extent, the nuisance created by these nonconforming uses colors public attitude toward new industrial and other types of permitted nonresidential development in their communities. (See Southampton Town Comprehensive Plan Update, 1999, Section 3.3, Economic Development.)

(2)

Today, in the Town of Southampton, bars, taverns, nightclubs and cabarets (hereinafter "bars and nightclubs") are permitted uses in the Highway Business, Shopping Center Business, Motel Business and Resort Waterfront Business Districts by Special Exception but are only permitted in residential districts if such uses were in existence prior to the introduction of the Zoning Code in 1957. This amendment seeks to address the growing detriment to residential communities posed by these nonconforming bar, tavern, nightclub and cabaret uses.

(3)

An increasing number of bars and nightclubs have been introducing live or disc jockey-provided music and dancing at their premises. This intensification of use and the resulting increase in noise, litter, excessive parking, overcrowding, criminal behavior and loitering has had an adverse impact on neighboring residential communities. In addition, serious problems have recently arisen whereby individuals patronizing these establishments have suffered serious injuries. Even more troubling, certain of these establishments repeatedly violate provisions of the Town Code and the New York State Uniform Fire Prevention and Building Code and appear summer after summer on the Town's Justice Court calendar for the very same violations. More critically perhaps, these violations have identified serious health and safety issues, including over-occupancy and blocking of fire exits, as well as unlawful changes of use and construction without the requisite building permit.

(4)

Accordingly, a Nightclub Study was conducted at the request of the Town Board. The purpose of the Study was to identify concerns and propose possible strategies to remedy quality of life issues for those residents, neighborhoods and communities that experience negative impacts from these bar and nightclub uses. The completed Study provides both a comprehensive inventory of all known bar and nightclub uses in the Town of Southampton and a basis for conclusions and recommendations regarding, where possible, the mitigation and/or control of such activities. It should be noted, however, that the activities undertaken at these establishments were not the focus of the Study. Rather, the Study documented, analyzed and examined the effects that these detrimental activities (i.e., loud music, large and unruly crowds, excessive drinking, littering, over-parking, criminal activity, etc.) have on the quality of life of their neighbors.

(5)

The Study examined and identified the establishments and documented the problems responsible for the growing public concern, established a baseline of data for land use and zoning purposes, provided general conclusions, where possible, with regard to overall bar and nightclub activity, recommended potential mitigation measures of identified impact and provided a basis for any necessary further action. The data and inventory accrued at each step included ambient noise level readings, adequacy of ingress and egress, surrounding land uses, building and site conditions (such as appropriateness of lighting and signage, placement of refuse containers, landscaping), food service, outdoor/indoor seating, live entertainment, hours of operation and commentary from adjacent property owners. As part of the Study, certificates of occupancy and compliance were analyzed to determine whether or not establishments improperly expanded their use.

(6)

There is no way to simply bring all nonconforming uses into compliance with the law. However, it is possible to take a problem-solving approach that will, over time, reduce the nuisance associated with nonconforming uses while still accommodating diverse (if not benign) economic activities. (See Town of Southampton Comprehensive Plan Update, 1999, Section 2.6.) The Town of Southampton Comprehensive Plan Update recognizes the existence of nonconforming uses and recommends that amelioration, among other approaches, be used, where applicable, for the termination or phasing out of such preexisting nonconforming uses (i.e., Economic Development, page 201 and Hamlet Business Areas, page 321). The Comprehensive Plan Update also recommends to utilize "carrots and sticks" to induce nonconforming uses to relocate, stay or be modified but always with the proviso that they reduce their nonconformance and the problems that they sometimes pose for neighboring uses.

(7)

The courts in the State of New York have considered the question of amortization and have upheld its constitutionality as a means of eliminating nonconforming uses. The Court of Appeals has upheld an amortization statute that terminated the nonconforming use of mobile homes upon the transfer of ownership. The United States Supreme Court has held that reform effected by statute may take one step at a time, addressing itself to one phase of a problem which seems most acute to the legislative mind, selecting one phase of one field and neglecting others, without amounting to legislative classification violative of the equal protection clause. The Supreme Court has gone on to say that it is no requirement of equal protection that all "evils" of the same genus be eradicated or none at all.

(8)

It is without doubt that nonconforming uses are problematic because they hinder the realization of a municipality's land use objective, which is to further the general public health, safety and welfare. Further, it is axiomatic that zoning regulations cannot achieve the goal of phasing out incompatible uses unless nonconforming uses are eliminated. When properly employed, amortization protects constitutional property rights while giving the municipalities the needed flexibility to phase out nonconforming uses.

(9)

The process of determining an amortization period is not set in stone in New York jurisprudence. The courts have employed a "balancing test" weighing the private cost against the public gain. Amortization must consider the economic impact on the nonconforming use and the individuals concerned. The determination whether or not the amortization period is reasonable involves a detailed weighing of the public gain to be derived from the removal of the use against the private loss that the removal would entail. An amortization period is presumed valid and the owner has the heavy burden of overcoming the presumption of validity by demonstrating that the loss suffered is too substantial and that it outweighs the public benefits to be gained.

(10)

The purpose of this section is to strike a better and more equitable balance between the rights of the property owner to continue the nonconforming use and the rights of the residents in the surrounding neighborhood to protect their property values as well as their safety, health and welfare. Before terminating a preexisting nonconforming use, this section gives the owner and/or operator of such a nonconforming use the opportunity to continue such use by mitigating its negative site impacts through the Planning Board's site plan review process. The Planning Board may recommend such measures as parking mitigation, noise impact control and screening. This section would enable the Chief Building Inspector (after approval from the Town Board by resolution) to issue a notice of intent to amortize as well as a notice of termination and enable the Planning Board to waive the requirement of a variance if an applicant is seeking a certificate of qualified nonconforming use. This section also gives the owner of a nonconforming bar, tavern or nightclub the option to voluntarily seek a certificate of qualified nonconforming use from the Planning Board that would shield such use from amortization.

(11)

The Town Board is now seeking through the amendments set forth in this section to remedy quality of life issues for residents in communities that experience negative impacts from these nonconforming uses while giving such users an opportunity, where feasible, to continue their business as well.

A nonconforming bar, tavern, or nightclub may be subject to compulsory termination by the Chief Building Inspector (after approval from the Town Board by resolution), when it is found detrimental to the conservation of the value of future development of surrounding land or improvements or is tending to deteriorate or blight the surrounding neighborhood. "Compulsory termination" shall mean that, after a period established by the Chief Building Inspector of up to but not exceeding 10 years, the bar, tavern, or nightclub shall be fully and finally terminated. The purpose of said period is to enable the owner and, where applicable, the operator or tenant (collectively the "owner") to amortize their respective interests in the subject property, which shall not exceed, in the aggregate, the difference between the value of the land and improvements for its current nonconforming use and its value for a conforming use, plus such other reasonable costs as the termination may cause. In determining such values, the Chief Building Inspector shall utilize the services of accredited appraisers and, in determining the length of such period ("amortization period"), the Chief Building Inspector shall employ a rate of amortization consistent with reasonable economic practice.

In determining whether to order the Compulsory Termination of a bar, tavern or nightclub, the Chief Building Inspector, in consultation with the Town Attorney and Department of Public Safety, shall consider, among others, the criteria listed below; provided, however, that before making such determination, the Chief Building Inspector shall request an advisory report from the Planning Board. A copy of the request for an advisory report from the Chief Building Inspector must be sent to the owner of the bar, tavern, or nightclub by regular mail and certified mail at the owner's address maintained by the Tax Assessor. The Planning Board will base its advisory report on an analysis of the criteria below as to whether the conditions on the site can be mitigated through the site plan process:

(1)

Prior and current Town Code violations and convictions;

(2)

Traffic and/or parking conditions that negatively impact the surrounding neighborhood;

(3)

Complaints from multiple residential neighbors resulting in the use of municipal resources relating to excessive noise, litter, criminal activity, including under-age drinking or violations of the New York State Uniform Fire Prevention and Building Code;

(4)

Noncompliance with or failure to obtain a certificate of occupancy or to comply within one year with site plan approval requirements;

(5)

Noncompliance with conditional discharge disposition requirements of the Town Justice Court.

If the Chief Building Inspector concludes that compulsory termination is appropriate, the Chief Building Inspector shall seek approval from the Town Board by resolution to forward a notice of intent to amortize. The Building Inspector will submit an advisory report to the Town Board with recommendations. The Chief Building Inspector in the same manner as directed in Subsection C above, must give the property owner notice of the date that the Town Board will be entertaining such resolution. Once the Town Board has concluded that compulsory termination is appropriate, then, prior to sending a notice of termination to the owner of such bar, tavern, or nightclub, the Chief Building Inspector shall first give owner, by sending a notice of intent to amortize, a period of six months within which to either: submit a complete application to the Zoning Board of Appeals seeking to change to another nonconforming use pursuant to § 330-167B(3) of the Town Code; or, if the Planning Board, in its advisory report to the Chief Building Inspector, has indicated that the site conditions can be mitigated, submit a complete site plan application to the Planning Board seeking to accomplish such mitigation; or the Chief Building Inspector, upon resolution by the Town Board, and the owner of the bar, tavern, or nightclub may enter into an agreement to eliminate the nonconforming use within three years measured from the date of the notice of intent to amortize. Said notice of intent to amortize shall also set forth the amortization period determined in accordance with Subsection B above.

If the owner is offered and elects to submit a site plan seeking such mitigation, the Planning Board shall evaluate such application based, again, upon the criteria set forth in Subsection C above. If the owner has met all of the requirements and conditions of site plan approval, the Planning Board will notify the Chief Building Inspector. The Chief Building Inspector must issue the certificate of qualified nonconforming use if all of the requirements and conditions of the site plan approval are met. All of the provisions in Subsection I below shall apply to the site plan approval process, except that the Planning Board shall schedule a public hearing where the owner is compelled by a notice of intent to amortize to submit a complete site plan application. A certificate of qualified nonconforming use shall insulate the owner from amortization.

The Planning Board may extend the date in which to submit a complete site plan application for a maximum of six months if it determines that the owner is diligently pursuing completion of such application. If the owner elects instead to seek a change to another nonconforming use before the Zoning Board of Appeals, no extension of the six-month period referred to in Subsection D above shall be granted.

If, within 30 days of its receipt of the notice of intent to amortize, the owner fails to notify the Chief Building Inspector of its intent to pursue the option or options available to it in Subsection D above, or having given timely notice of such election fails to timely complete, prosecute or satisfy the conditions of its site plan or Zoning Board of Appeals application, as the case may be, the Chief Building Inspector shall serve a notice of termination upon the owner. Said notice shall be sent by certified mail, return receipt requested, in the same manner as directed in Subsection C above, or, if such mailing is not accepted, a copy shall be affixed to the property where the nonconforming bar, tavern or nightclub is located and an additional copy shall be sent by regular mail to the address where the bar, tavern or nightclub use is located; provided, however, that in all events, personal service upon the owner shall be deemed sufficient notice. Further, the Town shall provide a copy of said notice to any lienholder or mortgagee of such property by certified mail, return receipt requested, or if the mailing is not accepted, a copy shall be sent by regular mail. All such notices shall set forth the location to be amortized and shall advise the owner that it has the right to appeal to the Zoning Board of Appeals the Chief Building Inspector's determination to issue the notice of termination and/or the sufficiency of the amortization period within 60 days of the date of said notice.

If, instead of seeking either a use change or, if applicable, mitigation of the offending site conditions, the owner timely files its appeal with the Zoning Board of Appeals as provided in Subsection G above, said Board shall schedule a public hearing at which the owner shall have the burden of establishing that the notice of termination was wrongfully issued and/or the amortization period is insufficient. In evaluating any such request to extend the amortization period, the Board may consider the following factors, among others:

(1)

The original purchase price of the property and improvements and any subsequent investments and improvements made, excluding improvements made without a building permit;

(2)

Tax depreciation;

(3)

Diminishment in value, as determined by an appraisal (at the owner's cost) of nearby properties (to be determined by the Zoning Board of Appeals) and nature of surrounding neighborhood;

(4)

Relocation and/or moving costs;

(5)

Environmental cleanup, if any;

(6)

Appreciation of value of land and buildings;

(7)

Loss of business good will;

(8)

Cost of advertising in a new location;

(9)

Any mortgages, liens or leases existing prior to the date of receipt of the notice of intent to amortize;

(10)

Annual income at the present location and at any future potential site; and

(11)

Value of land and improvements as a conforming use.

An owner of a bar, tavern, or nightclub may insulate such use against amortization by voluntarily applying to the Planning Board for a certificate of qualified nonconforming use. The Planning Board shall waive a public hearing for an application for a certificate of qualified nonconforming use. If the owner has met all of the requirements and conditions of site plan approval, the Planning Board will notify the Chief Building Inspector. The Chief Building Inspector must issue the certificate of qualified nonconforming use if all of the requirements and conditions of the site plan approval are met. The Planning Board shall publish a notice of complete application in the official newspaper stating the final date and place for submission of written comments on the application. The applicant shall erect a black-and-white-lettering sign or signs measuring not less than two feet long and one foot wide; it shall be prominently displayed on the premises facing each public street on which the property abuts, giving notice that an application for a certificate of qualified nonconforming use is pending, the final date and the place for submission of public comments. Such sign shall be displayed for a period of not less than 10 days immediately preceding the last day for submission of public comments. The applicant shall file an affidavit that he or she has complied with the provisions of this section. The applicant shall also mail a notice of application which shall indicate the final date and the place for the submission of comments with a copy of the application and survey submitted to the Board, by certified mail, return receipt requested, to every property owner, as shown on the current Town of Southampton assessment roles, of parcels abutting and directly opposite (by extension of lot lines through a street or right-of-way) of the property which is the subject of the application, proof of which shall be submitted to the Planning Board on the date that the application will be heard in the form of an affidavit, with postal receipts annexed thereto confirming mailing of said notices, at least 10 days prior to the expiration of the public comment period. The Planning Board shall review all written comments received in connection with any notice of application at its next regularly scheduled meeting following the expiration of the comment period. The site plan application will be reviewed pursuant to §§ 330-182 and 183 and satisfying the criteria below:

(1)

Noise abatement measures, such as soundproofing and insulation;

(2)

Mitigation of parking by providing for additional spaces, taxi queing, and turn-around areas;

(3)

Providing for additional buffers and landscaping;

(4)

Mitigation of lighting where inadequate or providing lighting where needed;

(5)

Containment of litter and waste;

(6)

Submission of a management plan that provides, among others, the following: a schedule when the establishment would patrol for litter (i.e., the beginning and conclusion of hours of operation), employees to direct patrons to parking areas, and use of personnel to patrol the premises for safety purposes;

(7)

Remediation of all issues identified by the Building Inspector under Subsection C above.

If the Planning Board recommends certain mitigation measures, as delineated in Subsection I, that necessitate an area variance, the Planning Board may waive the necessity for such variance if it is directly related to the mitigation measure.

If the owner elects any of the remedies in Subsection D above, such election remedy shall not be deemed a waiver of authority of the Town to enforce its Zoning Code.

Billboards.

(1)

Anything to the contrary in this chapter notwithstanding, any nonconforming billboard or any flashing or moving sign, except as provided in § 330-90C, wherever located, shall become an unlawful structure on June 1, 1975, and shall thereupon be removed.

(2)

Any owner of any such nonconforming billboard or flashing or moving sign, except as provided in § 330-90C, who alleges that the period herein provided for the amortization of such sign is unreasonable as to a particular sign may apply to the Town Board for an extension of time for amortization of such sign. If the Town Board finds that the construction cost of a particular sign would not be reasonably amortized by the aforesaid date, then the Town Board may extend the amortization period to a date which it finds would provide a reasonable amortization period. In no event, however, shall the total amortization period for a particular job extend beyond a date which would result in amortization of the construction cost of a particular sign at a rate of less than $100 per year, computed on a straight-line basis.

[1]

Editor's Note: Section 3 of this local law stated the following regarding supersession of state law: "Pursuant to Municipal Home Rule Law § 10(1)(d)(3), this section expressly supercedes the provisions of Town Law § 138 wherein no provision is made in Town Law for the Chief Building Inspector to forward a "notice of intent to amortize" or "notice of termination" upon the property owner of a nonconforming bar, tavern or nightclub, or to enter into a contract with the owner of the bar, tavern, or nightclub to terminate such use within three years. Pursuant to Municipal Home Rule Law § 10(1)(d)(3), this section expressly supercedes the provisions of Town Law §§ 267-a, 271 and 274-a, wherein no provision is made in Town Law for the Planning Board to waive the requirement of an area variance if the Planning Board request mitigation measures at the site that necessitate the need for a variance request."