June 7, 2023 – The Appellate Division, Second Department has annulled two decisions from the Town of Riverhead, in Andes v. Zoning Board of Appeals of the Town of Riverhead and Andes v. Planning Board of the Town of Riverhead.   

The first decision involved an application of the New York rules governing “nonconforming uses,” specifically with respect to a pre-existing, nonconforming marina that was located in a residential zoning district.  Although the Town’s ZBA had found that the marina was a pre-existing, nonconforming use, the Appellate Division concluded that the owners’ failure to obtain site plan approval for changes to the marina made after 2003 “casts doubt on whether any of the new structures built after 2003 fall within the Reeves’ nonconforming use….”  Consequently, the Appellate Division annulled the ZBA’s decision and remitted the matter back to the ZBA for a new determination.

The second decision involved the Town Planning Board’s decision to subdivide the subject property, specifically regarding the board’s failure to comply with the State Environmental Quality Review Act, commonly known as SEQRA.  The Planning Board had incorrectly classified the application as “Type II,” which would have made it exempt from SEQRA review.  The Appellate Division agreed with the lower court that “there was no rational basis in the record before the Planning Board to support its conlusion that the subject application was a Type II action requiring no environmental review pursuant to SEQRA.

EHADP represented the petitioners in both of these proceedings.