Spring is once again approaching, and that means construction season is just around the corner. If the past is any guide, in some towns in Sullivan County some of those construction projects will mean the expansion of nonconforming uses.

What is a nonconforming use? It’s one that was allowed to exist in an area in the past, for instance at a time before local zoning was established, but would no longer be permitted to be established. In Sullivan County, examples of nonconforming uses would be racetracks, junkyards, summer camps or hospitals located in residential neighborhoods.

Most planning professionals agree that an important goal for zoning purposes is to have nonconforming uses diminish over time and eventually go away. In fact, that is what the New York State Court Appeals, the state highest court has ruled. The court wrote of nonconforming uses in 1996, “the highest priority of zoning is their reasonable restriction and eventual elimination.”

Municipalities don’t have the right to halt the operation of a nonconforming use, but they do have the right to restrict or prohibit their expansion. As explained on the website of the law firm of Sahn, Ward, Coschignano and Baker PLLC: “Clearly, the right to continue a nonconforming use is constitutionally protected and the courts will protect property owners’ rights to maintain said uses. However, expansion and/or modification of these uses may not be possible even when the additional use could be considered compatible with the authorized use. For example, in McDonald v. Zoning Board of Appeals of the Town of Islip, the court, citing a municipality’s right to restrict the expansion of nonconforming uses, upheld the determination of the zoning board to deny the expansion of a preexisting, nonconforming landscaping and excavation business to include a mulching and recycling operation. Thus, even though mulching and recycling is arguably an ancillary use of a landscaping business, it was still considered an impermissible expansion and the right to prohibit the expansion was upheld by the court.”

Planners have long considered nonconforming uses to be problematic. As an educator named Marvin Moore wrote in the William and Mary Law Journal in 1965. “Such uses reduce the effectiveness of zoning ordinances, depress property values, and directly contribute to urban blight.”

Some local officials take seriously the negative impacts of the expansion of nonconforming uses, and many municipalities in New York State have adopted zoning that restricts or prohibits expansion. The municipalities are almost always victorious if the related zoning regulations are challenged in court.

From the Pace Law School website, law.pace.edu/non-conforming-users: “Courts have upheld prohibitions on the construction of an awning over a courtyard outside a restaurant, on the theory that it would create additional space for patrons to congregate and, in this sense, increase the degree of the nonconforming use. Similarly, the prohibition of the conversion of seasonal bungalows to year-round residences has been upheld as an acceptable method of preventing the enlargement of a nonconforming use.”

In Sullivan County, two towns have adopted local laws that prohibit the expansion of nonconforming uses. The Town of Thompson passed legislation in 2005, and the Town of Bethel passed similar legislation in October 2014.

The Bethel regulation says simply, “An enlargement or expansion of a nonconforming use is expressly prohibited.” It also defines an enlargement or expansions as “(i) any increase in the height or area of any building or building footprint, including but not limited to the addition of any stories, dormers, rooms, porches, decks or similar improvements, (ii) the construction of any additional buildings or improvements on the real property comprising such nonconforming use or the addition of any accommodations thereto that could be used for dwelling purposes that are an extension of said nonconforming use or (b) an accessory use to said nonconforming use, (iii) the increase of any land area comprising such nonconforming use, or (iv) the increase of the intensity of the nonconforming use.”

The regulation also says, “A building or other structure containing residential nonconforming uses may be altered in any way to improve interior livability. No structural alterations shall be made which would increase the number of dwelling units.”

The zoning changes can easily be seen as the “reasonable restrictions” called for by the court of appeals in the regulation of nonconforming uses.

The choice about whether to restrict the expansion of nonconforming uses rests with elected town boards. Some planning boards in Sullivan County routinely grant special-use permits that allow for the expansion or enlargement of nonconforming uses. We would encourage elected officials to follow the lead of towns of Bethel and Thompson, and consider bringing their zoning codes in line with the goals outlined by many communities, professional planners and the highest court in the state.