July 14, 2014

The Supreme Court, Suffolk County has upheld a zoning board’s decision granting a variance to allow the replacement of a nonconforming guest house in Wambold v. Village of Southampton ZBA, Index No. 13-21238 (Hon. Arthur G. Pitts). The case involved a recurring but often misunderstood issue:  is a second dwelling on a residential property a nonconforming use (which would require a use variance to authorize its expansion) or a nonconforming structure with a conforming use (which would only require an area variance)?  The zoning board found the latter, and the Supreme Court, following a line of cases in New York on the issue, agreed.  The court explained that an “application for a variance to enlarge the floor area and density seeks an area variance because the essential use of the land is not being changed.”  Esseks, Hefter & Angel, LLP represented the recipients of the variance in the unsuccessful lawsuit brought by an objecting neighbor.