07/03/12 9:00pm

It’s good news that Suffolk County National Bank is exploring the idea of selling the 4-acre commercial remnant of the old Shelter Island Nursery as a residential parcel that might yield two building lots. The bank may, or may not, tear down the commercial buildings on the site and subdivide the property itself, depending on sales and marketing considerations, no doubt. But either way, it’s certain no one expects the bank to try to sell the parcel as commercial.

Two more houses along St. Mary’s Road will conform to the neighborhood’s residential zoning and probably would have far less impact than a commercial nursery would, even if it’s nothing more than an eyesore.

Aesthetic impacts have their effects, including the very significant effect of reducing adjacent property values. As for a successful nursery in full operation, it would probably use a lot of water, draw a lot of traffic and also reduce adjacent property values.

The Town Board zoned the area residential for a reason: Shelter Island’s core economy is the second-home real estate and service industry. The “highest and best use” of most properties here is as residential house lots because there’s a big demand for them. Development along St. Mary’s Road had been mostly residential before the town made it official in the zoning code. The area’s residential classification simply reflected reality, not just good planning.

While the law allows pre-existing, non-conforming businesses to operate in residential zones, it also provides for their legal status to change after one year of “discontinuance.” No one doubts that the Shelter Island Nursery hasn’t been operated for years now. Under the law, it simply can’t be reopened.

The zoning code does not specify who makes the decision that a pre-existing, non-conforming use has been discontinued or when they must do it. Should the building inspector track every non-conforming use on the Island, note any that have closed, watch the calendar and come by after a year to post a sign announcing that the property has not reverted to residential? Even in a small town like Shelter Island, that’s an impractical procedure fraught with legal perils. How can the building inspector keep track of all the details for multiple properties so he knows for sure exactly when a business closed? Or whether or not the owner conducted business for one weekend in August?

Nevertheless, there should come a time when someone in local authority can make it clear to all that a pre-existing, non-conforming use is no more. In the case of the Shelter Island Nursery, it’s troubling that it all seems up to the bank to decide how to market it and what its future use might be.

What if the bank suddenly found some bright-eyed optimist buyer who wanted to run a nursery? Neighbors would have a very good case in court challenging any future commercial use. But just as it shouldn’t be up to property owners to decide what their zoning is, it shouldn’t be up to the neighbors alone to enforce the law.