§ 85-377. Conformance required; nonconforming uses; certificates of occupancy.

A. 

Conformity with article provisions. All buildings or land shall be used and all buildings shall be erected or structurally altered in compliance with the provisions of this article, except as follows:

(1) 

An existing nonconforming building used as a one- or two-family dwelling with a certificate of occupancy, a certificate of existing use or its equivalent, located in the Residential District, whether situated on a conforming lot or a nonconforming lot, if severely damaged, destroyed or rendered a hazard due to fire, natural disaster, abandonment or neglect, may be structurally altered, restored, repaired or reconstructed, in whole or in part, provided that said building does not encroach deeper into any nonconforming height, lot occupancy, front yard, side yard or rear yard than the distance into said height, lot occupancy, front yard, side yard or rear yard than the existing building encroaches and the degree of nonconformity shall not be increased.

(2) 

A nonconforming accessory building(s) or structure(s), when accessory to a one- or two-family dwelling with a certificate of occupancy, a certificate of existing use or its equivalent, situated in the Residential District, whether located on a conforming lot or a nonconforming lot, if severely damaged, destroyed or rendered a hazard due to fire, natural disaster, abandonment or neglect, may be structurally altered, restored, repaired or reconstructed, in whole or in part, provided that said accessory buildings or structures do not encroach deeper into any nonconforming height, lot occupancy, front yard, side yard or rear yard than the distance into said height, lot occupancy, front yard, side yard or rear yard than the existing building(s) or structure(s) encroaches and the degree of nonconformity shall not be increased.

B. 

Legal nonconforming use defined. The term "legal nonconforming use," as used in this article, shall mean any nonconforming use which, at such time such use was commenced, was maintainable as a matter of right under the code and general rules of law in effect in the Town of Brookhaven.

C. 

Continuation or change of nonconforming use.

(1) 

Any legal nonconforming use may be continued; provided, however, that a legal nonconforming use shall not be changed unless changed to a conforming use. A legal nonconforming use, if changed to a conforming use, may not thereafter be changed or returned to any nonconforming use.

(2) 

A legal nonconforming use, if discontinued by virtue of fire, explosion, acts of God or other causes to the extent of not more than 75% of the total use, shall not be deemed to have lost its legal nonconforming use status. Reconstruction and restoration of said use, where discontinued to more than 75% of the total use, shall be determined by the following guidelines:

(a) 

Those legal nonconforming uses established prior to October 17, 1984, shall be reconstructed in accordance with the building dimensions as stated in this article. Such legal nonconforming uses shall constitute developed improved property.

(b) 

Those legal nonconforming uses established subsequent to October 17, 1984, with the permission of the Town of Brookhaven, as evidenced by the acquisition of a valid variance from the Zoning Board of Appeals, shall be reconstructed in accordance with the dimensions as stated in this article.

(c) 

Those nonconforming uses established subsequent to October 17, 1984, without the permission of the Town of Brookhaven, as evidenced by the lack of acquisition of a valid variance from the Zoning Board of Appeals, shall be reconstructed in accordance with the dimensions as stated in this article.

(d) 

A legal nonconforming use, if discontinued by virtue of abandonment, shall be deemed to have lost its legal nonconforming use status and will be required to have any and all new structures or uses conform to the dimensions of this article.

(3) 

The aforementioned guidelines of this section shall be applicable in the RD Residential District, OFD Oceanfront Dune District and the CD Commercial District.

D. 

Extension within a building of a nonconforming use. Any existing building designed, arranged, intended or devoted to a use which is not permitted in the district in which such building is located shall not be enlarged, extended, altered or reconstructed unless such use is changed to a use which is permitted in the district in which such building is located. This Subsection D is subject to the provisions of Subsection C of this section.

E. 

Certificate of occupancy. Certificates of occupancy shall be issued in accordance with the provisions of this chapter.

F. 

Building permits. Permits for the erection or alteration of any building or structure shall be issued in accordance with the provisions of this chapter. In addition to all other requirements of the Zoning Chapter of the Town of Brookhaven and the Building Construction Code, no permit shall be issued by the Chief Building Inspector unless the owner of the property or his duly authorized representative meets the following conditions:

(1) 

That the premises upon which the structure is to be erected fronts on a Town-owned and Town-maintained boardwalk or that a boardwalk giving access to such proposed structure is shown upon a plat approved by the Planning Board as provided in §§ 276 and 277 of the Town Law and that a performance bond has been furnished to the Town by the owner of the property shown on said plat.

(2) 

That the premises upon which the structure is sought to be erected is located in an area on Fire Island which is west of the eight-mile district, as defined by the east line of Ocean Ridge, formerly known as "Sammis Lot No. 42, Section 3 (western boundary)," to the west boundary of Smith Point County Park (eastern boundary).

(3) 

That the erection of the proposed structure will not further contribute to the process of erosion on the Great South Beach and will not in any manner further damage the Great South Beach.