By Kathryn G. Menu
The question: Should a non-conforming business — like an ice cream shop — be able to become a non-conforming auto repair shop through the zoning board of appeals simply by proving it is beneficial to the community and comes with “reasonable conditions or safeguards”?
Or should a property owner seeking to make that change go through a more arduous process by proving to the town board he or she should be allowed to change the zoning on that property?
At its root, this is the most basic question being asked in a new draft law in Southampton Town. The legislation has yet to be introduced officially, but board members like Councilman Chris Nuzzi are bringing it to the public, businesses and civic groups alike in order to garner their opinions before submitting a formal law for consideration.
On Monday night, Nuzzi briefed the Bridgehampton Citizens Advisory Committee (CAC) about the draft law. He said he hopes the law — whatever its final form — brings the town closer to a policy of working on properties complying with the town code, rather than moving further away from it.
Currently, under the town code, the ZBA is given the authority to allow an applicant with a pre-existing, non-conforming use on a property — for example a commercial use on a residentially zoned parcel — to gain a new certificate of occupancy for another non-conforming use.
On Monday, Nuzzi said that board has the ability to do so on what he considers a “lax” standard. Under the code, the ZBA can grant the certificate of occupancy if it makes “a determination that such a change will be beneficial to the general neighborhood” and if “such a change is made subject to such reasonable conditions and safeguards as the Board of Appeals may stipulate.”
“The perception of what is beneficial or not to the neighborhood is subjective at best,” he said.
Nuzzi added the proposed law is in no way meant to criticize the existing ZBA or applications it has heard. Rather, the purpose is to change the spirit of zoning to eventually bring properties into compliance with the town’s land use and comprehensive plans.
Under the draft law, two options are posed. Both would strike the ZBA’s authority to handle these changes in certificates of occupancy under the existing standards.
One option would allow that board to continue to have that authority, but would require applicants to seek a use variance from the ZBA. Such a variance would come with very stringent requirements for approval, including proof the property cannot financially continue to be viable without the change. The other option would give the authority to the town board, and consider it a change of use application, which also comes with higher standards. These include having to comply with the State Environmental Quality Review Act (SEQRA) and several points where the application could be aired via a public hearing.
Nuzzi noted there are a number of pre-existing, non-conforming uses — uses that predate zoning — throughout the town and those uses are entitled. The question now, he said, is whether or not the town board, or the ZBA with stricter guidelines, should be reviewing a request to change those uses to another non-conforming use.
“Ultimately, the decision is one for the board and the community to decide,” he said. “Whether you want an appointed ZBA to continue to allow for these changes in uses or would you like them to have to go to the town board and force more compliance through the land use and comprehensive plans that define what we would like the town to look like or what uses we would like to see.”
On the counter side of the argument, agreed Nuzzi, is the concept that this mechanism has been used to change one potentially obnoxious, non-conforming use — like a nightclub — to a use with less of an impact on a community — like a restaurant.
“So it is not to say it has not been used in a good way, but it does allow for great discretion and that has caused some concern among community members,” he said.
According to Nuzzi, locally while East Hampton has not adopted a similar change in legislation, Sag Harbor Village’s zoning code rewrite did change the standards for the ZBA to grant this kind of relief to a use variance, making it more difficult to achieve when compared to Southampton Town standards.
“I think people do fear, and I can appreciate that, the process, the cost and the time of a change of zone in front of the town board and that is something we need to address,” admitted Nuzzi.
He added perhaps adopting a similar model to Sag Harbor Village could be in the town’s best interest.
Bridgehampton CAC member Janice Delano wondered if the board could specifically look at the larger applications.
“It is a good point and that is why we are open to bettering the standards but not completely removing the provisions so we are not in the position where an ice cream stand to a hot dog stand is a big deal,” he said.
“But that would not put it in front of your elected officials, which is a big point,” noted CAC member Jeffrey Mansfield.