Real property in New York state is regulated by local zoning codes. These codes designate what type of development and use can be made of property. Zoning laws generally aim to establish orderly communities in which incompatible uses are separated into districts that are exclusively either residential, commercial or industrial. A New York lawyer consultation would help a person understand the zoning codes in the municipality in which they live.
Zoning codes in every municipality in the state of New York establish the kinds of uses that are permitted on each tract of land within the borders of the municipality. These codes can be changed, and this can have a significant impact on the allowable uses of a parcel of property.
Occasionally, an amendment to a zoning code or map can change the use of a parcel from one that was permitted to what is called a “non-conforming use,” i.e., one that is no longer permitted. The question then becomes what the owner must do and what effect the change has on the economic value of the land.
Some of the kinds of changes in zoning codes that may lead to non-conforming uses are changes to the designations regarding how land can be used, e.g., changing residential property from multi-family residential to single-family residential, increasing allowed density or modifying architectural standards.
“Grandfathering” is the term used for the situation in which the use of real property that was once allowed has become impermissible with a change in zoning ordinances. It is a protection offered to property owners who invested in their property in a way that complied with the ordinances that applied at one time but have since changed.
When Is a Non-Conforming Use Considered a Zoning Violation in New York?
One way in which a non-conforming use can become a zoning violation is through abandonment. If an owner abandons a non-conforming use in a structure on some property or on the parcel itself, the local property zoning laws do not allow the owner to later resume the non-conforming use.
Most zoning ordinances do set a waiting period before a property can be judged to have been abandoned. The length of the waiting period varies from locale to locale, but it generally ranges from 6 months to 2 years. However, once some property on which a non-conforming use has been abandoned, continuing the use would be considered a zoning violation and would not be allowed.
In New York, property owners who fail to comply with zoning regulations regarding non-conforming uses and other zoning violations may face significant penalties. The consequences vary depending on the severity of the violation. Monetary fines may be imposed on the owner, and they may be substantial. Or the zoning authority may seek a cessation order and obtain permission to demolish a structure that violates zoning regulations.
Local zoning agencies view compliance with local zoning laws as crucial, as it helps maintain an orderly community structure, protects property values and the character of neighborhoods.
What Are the Legal Consequences of a Non-Conforming Use in New York?
The government agency – usually a planning board or planning commission – that enforces zoning regulations in a New York location may terminate a landowner’s right to continue a non-conforming use. The circumstances under which this may happen are as follows:
- Abandonment: As noted above, a landowner may abandon the property on which the use is made. This could lead to a zoning violation, if the owner tries to resume the use after a specified period of abandonment.
- Voluntary Cessation: The owner of a property on which a non-conforming use is conducted may voluntarily stop the non-conforming use and move to a use that conforms with current zoning ordinances. If this happens, the owner loses the right to carry on the non-conforming use. It cannot be resumed. No other owner would be able to carry on the non-conforming use, as it would be lost for good.
- Amortization: Some locales have adopted the process known as “amortization.” In amortization, the authorities allow an owner to continue a non-conforming use for a reasonable period, but then they must end it.
- Amortization is supposed to allow the phasing out of non-conforming uses over a set period of time. It allows municipalities to end non-conforming uses while giving the owner time to make the necessary adjustment. The amortization process usually begins with an assessment by local zoning boards, which establishes the period in which the non-conforming use can be brought to an end.
- Typically, the time allotted for amortization depends on several factors, including the nature of the use, the degree of non-conformity, and the effects on community development. Industrial uses may be allowed a longer amortization period than residential properties, because of the financial investment that may be involved.
- Several factors can influence the duration of amortization periods. These may include the economic viability of the non-conforming use, whether relocation is a viable option, and the impact of the use on adjacent properties.
The condition of any existing structures and the attitudes of surrounding neighbors towards change can prove critical in determining how quickly an owner must phase out a non-conforming use. It is not uncommon for local governments to adopt different approaches based on the desired growth and planning goals of the area.
Does New York Recognize Legal Non-Conforming Uses?
New York recognizes vested rights. These are legal entitlements that allow property owners to continue a non-conforming use or structure in spite of changed zoning codes. Vested rights are granted for non-conforming uses by property owners who began their uses legally as permitted by zoning codes that were in effect at the time.
To establish vested rights, property owners typically need to demonstrate that they began their non-conforming use when it was legal and continued it without interruption. Of course, the owner would have to provide evidence of having obtained required building permits and any other information that supports their claim of vested rights.
The duration of continuous use often plays a significant role in the decision about vested rights, with many municipalities setting specific time periods as benchmarks for vested rights. For example, a property owner might have to prove uninterrupted use for a certain number of years to qualify for a finding of having vested rights.
The process for formally establishing vested rights may involve submitting specific forms to the appropriate local zoning authority. These forms often demand detailed information, such as property descriptions, the nature of the non-conforming use, and evidence regarding when it began and how long it has continued.
There may be costs associated with consulting a New York lawyer, which may be advisable, collecting documents, filing fees and the like. An owner would want to consult municipal zoning codes regarding the process and the factors that control decisions on vested rights applications.
Reportedly, pursuing a vested right is often the solution that an owner or business needs in order to continue a non-conforming use after a zoning change.
What Is a Zoning Variance in New York?
A zoning variance is an exception that a local zoning authority grants to a property owner. It allows the owner to make a non-conforming use of their property without violating zoning ordinances.
Generally, zoning codes or ordinances regulate the size, location, type and use of structures within certain defined areas. An owner may request permission to vary the use they make of their property in some way. Usually, planning boards or zoning authorities review these requests on a case-by-case basis.
If the variance is approved, it does not represent a change to the zoning rules and regulations for all owners in a particular district. Rather, it represents the approval of only one exception to the applicable zoning laws. If an individual wants to apply for a variance, again, the guidance of a New York lawyer could be quite helpful.
It is also important to keep in mind that the owner of property in a gated community or homeowners association may have to contend with covenants in community governing documents that control the uses that can be made of their property. They may have to seek approval for any changes from the board of directors of the homeowners association.
What Is Spot Zoning Under New York Law?
Spot zoning occurs when an owner uses their property in a manner that is different from the way in which surrounding properties in their zone are used. For example, the owner of a single-family residence may be allowed to conduct business-related activities in their home.
All other homes in the surrounding zone may be residential in character only. The business use could be considered spot zoning. It is basically an exception, a “spot” in a zone that is exceptional.
Should I Hire a New York Land Use Lawyer for Help With Non-Conforming Use Issues?
If you have a non-conforming use issue in New York, you want to consult a New York real estate lawyer. There are options for obtaining permission to continue a non-conforming use, but each one depends on a variety of factors. Zoning law can quickly become complicated, and there are different processes for each option. You have the best chance of getting the outcome you want for your property with the help of a New York real estate lawyer.
