This post was authored by Sebastian Perez, Esq.

Petitioner sought to annul the Village of Fayetteville Zoning Board of Appeal’s (the “ZBA”) determination that the zoning code of respondent Village of Fayetteville (the “Village”) permitted the reduction in size of a lawful nonconforming structure without loss of the structure’s lawful nonconforming status.

The structure at issue was a vacant 137,000-square-foot die-casting facility to be redeveloped into a 56,550-square-foot grocery store. The die-casting facility had been certified as a lawful nonconforming structure within the meaning of the zoning code since it preexisted the zoning code’s current prohibition of buildings more than 10,000 square feet in industrial zones. Section 187-14 of the Fayetteville Zoning Code (the “Code”) permits prior lawful nonconforming structures may continue to be “used, repaired and maintained” and, under certain circumstances, even be enlarged without losing their status as lawfully nonconforming. However, the Code is silent about any reduction in the size of the lawful nonconforming structure. The ZBA had decided that the significant alteration and redevelopment of the die-casting facility proposed by the developers, including the demolition of the existent walls and floors down to all or part of a concrete slab foundation, constituted a “use, repair, or maintenance” of that structure such that the resulting grocery store remained a lawful nonconforming structure within the meaning of the Code. 

The appellate court determined that the ZBA’s interpretation of the words “used,” “repair,” and “maintain,” as they are used in the Code, was not a matter of pure statutory construction but rather a determination that would benefit from the expertise of specialists in land use planning. Furthermore, the Court agreed with the ZBA that although the proposed grocery store would remain nonconforming, the redevelopment would reduce the degree of that nonconformity by over 50%, thereby improving the overall property under the intent of the Code. 

The Court held that the interpretation of the Code was neither irrational, unreasonable nor inconsistent with the governing statute and affirmed the judgment.   

Ross v Village of Fayetteville, 2023 WL 7982280 (NYAD 4 Dept. 11/17/2023)