by Andrew Getty
There are plenty of old commercial businesses in residentially zoned areas. It’s not that uncommon.
As in any of the residential zones in the Town of Webb, a business that is nestled in a residential district AND has been there lawfully for many years, would be called a lawful, non-conforming use; more commonly called a ‘grandfathered’ situation.
When the local zoning ordinance was adopted back in 1965 there were different businesses all over the town.
Before the local ordinance was adopted, which created distinct zoning districts, a business could lawfully be anywhere.
It was unfair and unrealistic to have businesses move because they would now be in areas that prohibit a business. So they were all allowed to stay, and could even be expanded to a degree subject to some planning oversight and approval.
What those grandfathered businesses could not do was change the type of business.
In other words, a restaurant could not become a gas station. A marina could not become a restaurant.
They could continue the same business and ask to get a little bigger, but had to remain the same business.
Too many times someone assumes that just because a business was (or is) on a particular residentially zoned property, they could start any type of business. You know, commercial is commercial, right?
Nope, the actual use and type of business is what is grandfathered.
Another common misconception is when that old, lawful, pre-existing business in that residential neighborhood is sold, everything must then become compliant.
Nope again. The grandfathering of a lawful commercial use does not expire because there is a change in title. The use is what is grandfathered, not the owner.
The only time a lawful, pre-existing non-conforming use can be lost is if the use (the business) is stopped and discontinued for more than two years.
That could be by fire, death in the family, financial problems, or whatever… if the use ceases for more than two years, everything reverts back to the allowable uses in that zoning district.
These concepts almost always apply to some kind of commercial use in a residentially zoned area.
Not too often is it the other way around, because residential uses are allowed in commercially zoned areas.
This article was spurred by a recent application received where a lawful, existing business that is in a commercial zone has acquired the adjoining property, which is also zoned commercial.
But the newly acquired property is larger and deeper than what they have. The area of the newly acquired property that extends back farther than what they already have is zoned residential.
The applicants assumed that all of the newly acquired property could be used as commercial… besides, there was a business there anyway; but not the same business.
Fortunately for the applicant it is only a minor change in their proposal.
Unfortunately, this issue was not discovered by this office until after the application was submitted, on the deadline date.
Quick note: This is a textbook example of why a pre-application meeting with your code office for comprehensive applications to the Planning Board can be so helpful in identifying things before it goes to the board.
The Town of Webb’s rules for grandfathering is probably not too different than any town in New York State. If you own, or are thinking of purchasing a business in a residential zone, consider a meeting with the local code office.
Also, consult with your attorney regarding non-conforming uses.
Understanding what you can and cannot do is important.