Agenda - Planning Commission - 02/03/1998

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Page 8- January 25, 1998 Z.B. families in "coworker apartments" on the property. Although apartment units weren't permitted, even by special permit, the town never required the foundation to get use variances for them. The foundation built the apartments without objection from the town. One such apartment was located in "Building 10." In 1986, the village of Chestnut Ridge, which included the foundation's property, was incorporated. Under the village's new zoning ordinance, the foundation's property was in a residential district that a..llowed nursing homes to operate by special permit. In 1994, the foundation applied to the village board for a use variance to add a second coworker apartment to Building 10. The board denied the permit. The foundation asked a court to force the board to annul the permit denial. It said the coworker apartment in Building 10 was a legal nonconforming use, and it had a vested right to expand that use because the apartments had been allowed since the 1960s. The foundation also argued the denial of a permit was arbitrary and capricious. The court annulled the denial, finding the foundation had a vested right to expand its nonconforming use. The court also found the board couldn't require a use 'variance because there., had been an understanding that coworker apartments would be developed throughout the foundation's property. Finally, the addition of a new coworker apartment wouldn't be detrimental to the community. The board appealed, and the appeals court affirmed. Neither court addressed whether the denial was arbitrary and capricious. The board appealed again. The foundation argued that Building 10 was one of the "adjunct services and facilities" allowed in the original 1963 special permit. DECISION: Reversed and returned to the trial court. The foundation wasn't entitled to expand its coworker apartments - a nonconforming use. Because the foundation failed to submit a master plan from 1963, there was no proof coworker apartments could be considered "adjunct services and facilities" allowed under the 1963 special permit. Because the foundation built coworker apartments after getting the 1963 permit, and because they already existed when the village was incorporated, it was possible the foundation had a vested right to expand the apartments. However, nonconforming uses typically couldn't be expanded unless denial of a use variance would prevent the property owner from using its property at all. That wasn't the case for the foundation: It could continue operating a nursing home without building a second coworker apartment in Building 10. Despite the lohg-standing existence of the coworker apartments, there was no "understanding" the foundation could expand them throughout the property. The 1963 permit limited the nursing home and its related uses to 10 percent of the property. Construction of apartment units in a single-family residential zone already opposed the village's zoning scheme. Adding another apartment would be an impermissible expansion of a nonconforming use.