§ 85-883. Nonconforming uses.

A. 

The lawful use of any building, structure or lot(s) existing at the effective date of the zoning ordinances of the Town of Brookhaven may be continued although such use does not conform to the provisions of this chapter, provided that the following conditions are met:

(1) 

Establishment. The establishment of a nonconforming use shall require the review and approval of the Board of Zoning Appeals.

(2) 

Extension. A nonconforming use shall not be extended, but the extension of a lawful use to any portion of a nonconforming building or structure which existed prior to the effective date of the zoning ordinances of the Town of Brookhaven shall not be deemed the extension of such nonconforming use.

(3) 

Changes. No nonconforming building, structure or use shall be changed to another nonconforming use.

(4) 

Displacement. No nonconforming use shall be extended to displace a conforming use, nor shall any nonconforming use be moved in whole or in part to any other portion of the lot or parcel of land occupied by such nonconforming use at the effective date of the zoning ordinances of the Town of Brookhaven.

(5) 

Restoration.

(a) 

Buildings or structures, exclusive of those used as a one- or two-family dwelling, damaged by fire, explosion, acts of God or other causes, may be repaired or rebuilt to the extent of no more than 50% of the reconstruction cost of the total structure, exclusive of the foundation. Any changes to the facade or other features of the building or site shall be subject to review pursuant to § 85-113 of this chapter.

(b) 

Buildings or structures used as a one- or two-family dwelling, damaged by fire, explosion, acts of God or other causes, may be repaired or rebuilt.

(6) 

Discontinuance. The substantial discontinuance of any nonconforming use for a period of one year or more terminates such nonconforming use of a structure or premises and thereafter such structure or premises shall not be used, except in conformity with the provisions of the Town Code.

(7) 

Construction approved prior to change of zone or prior to any amendment or adoption of local law. Nothing herein contained shall require any change in plans, construction or designated use of a building or structure for which a building or use permit has been issued and a certificate of occupancy issued within one year from the date of the issuance of the permit.

(8) 

Subdivision. The subdivision of any parcel(s) on which a legal nonconforming use(s) exists terminates such legal nonconforming use of a structure or premises and, thereafter, said structure or premises shall not be used except in conformity with the provisions of this section.

(9) 

Exemptions. Property which is the subject of the change in use district classifications from B Residence District, B Residence 1 District and A Residence District to A Residence 1 District enacted by the Town Board during 1988 may continue to be developed in accordance with the zoning classification in effect immediately prior to the change in use district classification, provided that the following conditions are met:

(a) 

The property was subject to a preliminary subdivision application, final subdivision application, land division application, resubdivision application, residential site plan application or 281 application filed with and pending before the Planning Board on or before February 10, 1987.

(b) 

The property was the subject of any of the above applications filed after February 10, 1987, but prior to December 27, 1988, for which the following criteria are met:

[1] 

The average lot size is 40,000 square feet or greater, exclusive of road areas or recharge basin areas.

[2] 

The average lot size is less than 40,000 square feet, the application receives approval by the Suffolk County Department of Health Services for the means and manner of sanitary waste disposal and/or the applicant is upgrading or sharing in the upgrading of an existing sewage treatment plant, creating a modular subregional sewage treatment plant or is contributing to the management of a sewage treatment plant that has been upgraded where moneys are lacking for management and operation.

[3] 

Any map located within Suffolk County Sanitary Code Article VI designated Groundwater Management Zone VIII which receives Suffolk County Department of Health Services approval for the means and manner of sanitary waste disposal.

[4] 

Any map which does not comply with the preceding may be amended by the applicant at the preliminary or final hearing to comply with an average lot density of 40,000 square feet, exclusive of road areas or recharge basin areas.

(c) 

Applications covered by Subsection A(9)(a) and (b) above shall be entitled to a two-year period in which to obtain final Planning Board approval and to be filed in the office of the County Clerk. Said two-year period is hereby extended for a period of time to expire on December 31, 1992. Notwithstanding the foregoing, any application subject to the automatic stay of Town Law § 282 as a result of SEQRA-based litigation challenges initiated by the Long Island Pine Barrens Society shall be entitled to an additional extension equal to the period of time during which the office of the Town Attorney had determined that the automatic stay applied to the application. Thereafter, said applications shall be entitled to building permits for the time limits contained in § 265-a of New York State Town Law.

(d) 

Any map approved pursuant to the above provisions shall contain a notation that relief from the new zoning categories has been granted pursuant to the provisions of this subsection.

(10) 

Exemptions from two-acre zonings. Property which is the subject of the change in use district classifications from A-1 Residence District to A-2 Residence District enacted by the Town Board on June 20, 1989 (Parcels D-4A, DD-5 and DD-7), October 17, 1989 (Parcel DD-2), and January 6, 1990 (Parcel DD-2A) may continue to be developed in accordance with the A-1 zoning classification in effect immediately prior to the change in use district classification, provided the project application was filed prior to the public hearing date of its respective upzoning and received preliminary approval or 281 approval prior to the effective date of said upzoning. In addition, the Map of Middle Field Woods in Center Moriches may continue to be developed as filed. Said applications shall be entitled to a two-year period in which to obtain final Planning Board approval and to be filed in the office of the County Clerk. Notwithstanding the foregoing, any application subject to the automatic stay of Town Law § 282 as a result of SEQRA-based litigation challenges initiated by the Long Island Pine Barrens Society shall be entitled to an additional extension equal to the period of time during which the office of the Town Attorney had determined that the automatic stay applied to the application. Thereafter, said application shall be entitled to building permits for the time limits contained in § 265-a of New York State Town Law. Any map approved pursuant to the above provisions shall contain a notation that relief from the new zoning categories has been granted pursuant to the provisions of this subsection.

B. 

Nonconforming buildings and structures.

(1) 

An existing nonconforming building or structure used as a one- or two-family dwelling with a certificate of occupancy or a certificate of existing use or its equivalent, located in a Residence District, whether located on a conforming lot or a nonconforming lot, may be structurally altered, restored, repaired or reconstructed, in whole or in part, except that the degree of nonconformity shall not be increased nor shall there be any increase in the floor area of the building or structure except as permitted elsewhere in this code.

(2) 

Existing nonconforming buildings or structures, exclusive of those used as a one- or two-family dwelling with a certificate of occupancy or a certificate of existing use or its equivalent, located in a Residence District, damaged by fire, explosion, acts of God or other causes, may be repaired or rebuilt to the extent of no more than 50% of the reconstruction cost of the total structure, exclusive of the foundation. Any changes to the facade or other features of the building or site shall be subject to review pursuant to § 85-113 of this chapter.

(3) 

Additions to existing buildings and structures with certificates of occupancy or a certificate of existing use or its equivalent in conformance with the zoning requirements at the time of construction shall be permitted, provided that said additions do not encroach deeper into any nonconforming front yard, side yard or rear yard than the distance into said front yard, side yard or rear yard that the existing foundation encroaches, exclusive of stoops, porches or patios.

C. 

Whenever the boundaries of a district shall be changed so as to transfer an area from one district to another district of a different classification, the foregoing provisions of Subsection A shall not apply to any nonconforming uses existing therein.

D. 

Nonconforming singly and separately owned lots.

(1) 

Proof of single and separate ownership shall be submitted in the form of:

(a) 

A title search prepared by a title company licensed to do business in the State of New York covering the subject premises and all contiguous property.

(b) 

A survey prepared by a licensed surveyor describing the subject premises.

(2) 

Separate ownership. A single-family dwelling may be erected on any lot 60 feet or more in width, within a zoning district where otherwise permitted, which was separately owned at the time of the passage of the ordinance or on any such lot separately owned at the time of any amendment thereto heretofore adopted, and which has not come into common ownership with adjoining property, and which conforms to the minimum dimensional requirements set forth hereinbelow at Subsection D(3)(a) and the area density requirements.

(3) 

Bulk requirements.

(a) 

Notwithstanding the foregoing, structures or additions thereto may be erected on single and separate parcels, provided that the following dimensional and setback requirements are met:

Lot Width (feet)	Maximum House Size (square feet)	Total Side Yards (feet)	Minimum Side Yards (feet)	Maximum Building Height (feet)	Maximum Attached Garage Area (square feet)
60 but less than 70	First floor: 1,000 Second floor: 600	25	12	26	240
70 but less than 80	First floor: 1,200 Second floor: 800	30	14	28
80 but less than 90	First floor: 1,500 Second floor: 850	35	16	28
90 but less than 100	First floor: 1,600 Second floor: 850	40	18	28
100 but less than 150	Side yard, lot coverages and building height of the B Residence District
150 but less than 200	Side yard, lot coverage and building height of the A Residence District
200 or greater	Side yard, lot coverage and building height of the A Residence District

NOTE: If lot depth is greater than or equal to 120 feet, the maximum first-floor area may be increased by 100 square feet for each additional 10 feet of lot depth.

(b) 

A single-family dwelling may be erected on lots at least 60 feet in width, but less than 70 feet in width, subject to the following requirements:

[1] 

A minimum lot size of 6,000 square feet.

[2] 

Compliance with the dimensional requirements set forth hereinabove at Subsection D(3)(a), except that relief may be granted by the Zoning Board of Appeals at the Board's sole discretion from no more than one of said requirements where to do so would be consistent with the requirements set forth in this chapter and Town Law Article 16.

Note: If lot depth is greater than or equal to 120 feet, the maximum first-floor area may be increased by 100 square feet for each additional 10 feet of lot depth.

Editor's Note: See § 85-56C.

(c) 

The calculation of area for interior lots known as "flag lots" (lots with road frontage of 20 feet or less) shall exclude the area encompassed by or attributable to the portion of said lot which is 20 feet or less in width.

(d) 

On corner lots, for purposes of calculation of all other dimensional requirements, the shorter(est) road frontage shall be the designated lot frontage.

(4) 

Single and separately owned parcels may be merged with adjacent single and separate parcels to create larger parcels which more closely conform to the zoning requirements. In accordance with this policy, single and separate parcels located between adjacent single and separate parcels may be split and merged with the adjacent single and separate parcels. Also in order to encourage the merger of adjacent parcels to create larger parcels, the owner of a parcel of land which is in single and separate ownership may merge an adjacent parcel that is not in single and separate ownership with the subject parcel, provided the parcel not in single and separate ownership was a separate tax parcel on the June 1, 1978, Suffolk County Tax Map.

(5) 

The Chief Building Inspector shall forward applications for building permits to the Division of Environmental Protection in order to review the potential environmental impacts of site development on the water supply and sanitary disposal aspects of a project with regard to groundwater contamination.

(6) 

Minimum front yard/rear yard setbacks shall be as follows:

(a) 

Lots less than or equal to 125 feet in depth shall have a minimum front yard setback of 30 feet. The rear yard setback shall not be less than 35 feet. The Chief Building Inspector may permit front yard setbacks in conformity with the average setbacks in the immediate locale. In no event may the front setback be less than 25 feet.

(b) 

On lots greater than 125 feet in depth but less than 150 feet, the front yard and rear yard shall not be less than 40 feet in depth.

(c) 

On lots equal to or greater than 150 feet in depth but less than 175 feet, the front yard shall not be less than 50 feet in depth and rear yard not less than 60 feet in depth.

(d) 

On lots equal to or greater than 175 feet in depth, the minimum front yard and rear yard setbacks shall conform to the zoning district in which the lot is located.

(7) 

The Zoning Board of Appeals, when reviewing applications for variances on lots that are not in single and separate ownership, may restrict development to the standards contained herein.