ARTICLE II Nonconforming Structures and Uses
§ 3. Definitions applicable to article.

As used in this article, the following terms shall have the meanings indicated:



LEGAL NONCONFORMING USE - Any nonconforming use which, at the time such use was commenced, was maintainable as a matter of right under the statutes, ordinances and general rules of law then in effect in the Town of Hempstead.

NONCONFORMING USE - Any building or the use of any land or building which does not conform to the provisions of this ordinance for the use district in which it is maintained or any building or structure which does not conform to the Building Code of the Town of Hempstead or to the New York State Building Construction Code.



§4. Continuation or change of legal nonconforming uses. Any legal nonconforming use may be continued as provided in this article. Such legal nonconforming use may be changed to another use which is permitted in the district in which such legal nonconforming use is expressly permitted by this ordinance, and such other use may be continued as a legal nonconforming use in accordance with this article, provided that the Board of Zoning Appeals, after application, notice and hearing in the manner prescribed by §267 of the Town Law, shall determine that such other use will not have a greater adverse effect on other properties in the vicinity, considering the purposes in view defined by §263 of the Town Law, than the use it is proposed to replace.

§ 5. Abandonment.

Whenever a legal nonconforming use shall have been abandoned or changed to a use conforming to the provisions of this ordinance, the land, building or structure in which said legal nonconforming use shall have existed shall not thereafter be used for any nonconforming use.

§ 6. Authority to determine legal nonconforming uses.

The Manager of the Building Department may, on the written verified application of the owner of property claiming a legal nonconforming use thereon, confirm such use by determining that such use is, in fact, a legal nonconforming use.

§ 7. Evidence to accompany application to determine legal nonconforming use.

Every application under § 6 hereof shall state or be accompanied by an affidavit or affidavits stating the evidentiary facts claimed to establish such use as a legal nonconforming use and shall be filed in duplicate with the Building Department. The Manager of the Building Department may, in his discretion, require the production of additional evidence and make whatever independent investigation he may deem necessary.

§ 8. Confirmation or denial of legal nonconforming use.

The Manager of the Building Department, upon the evidence submitted to and obtained by him, shall make and file with the Town Clerk a written determination confirming or denying that such use is a legal nonconforming use and stating the facts which he finds to be established by such evidence, the basis of such findings and the conclusions he has drawn from such findings.

§ 9. Issuance or denial of certificate of occupancy.

A. Upon confirmation by the Manager of the Building Department of any legal nonconforming use pursuant to this article, he shall issue to the applicant a certificate of occupancy with an endorsement thereon specifying the legal nonconforming use so confirmed, and such certificate shall constitute presumptive evidence that such use is a legal nonconforming use in any action or proceeding brought to enforce this ordinance.

B. Every nonconforming use for which a certificate of occupancy has not been issued, as provided in this article, shall presumptively be an illegal nonconforming use for the purpose of any application to or proceeding before any officer or Board of the Town of Hempstead.

§ 10. Effect of Article.

Nothing in this article shall be deemed to make legal or to permit the confirmation of any nonconforming use which is not a legal nonconforming use or to invalidate the use of or require the confirmation of the use of any land, building or structure for which a valid certificate of occupancy has been issued prior to and is in effect on the effective date of this section.

§ 11. Severability.

If any clause, sentence, section, paragraph or provisions of this article shall be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate any other part of this article, but shall be confined in its operation to the clause, sentence, section, paragraph or provision directly involved in the action or proceeding in which the judgment or order so adjudging shall have been rendered.