Development

Supreme Ct., Orange Cty.

(Pagones, J.)

Neighbor brought an article 78 proceeding challenging the determination by the zoning board of appeals that landowner was entitled to operate a restaurant as a pre-existing nonconforming use. The court denied the petition and dismissed the proceeding, holding that the ZBA's determination was not arbitrary and capricious.

Landowner sought a building permit for interior alteration of an existing restaurant and another permit for a freestanding sign replacement. Neighbor then appealed the issuance of the alteration permit, contending that use as a restaurant/bar had been abandoned. The ZBA upheld issuance of the permit, concluding that the restaurant and bar use of the property had been in existence and was operating during the 12 months before the building permit.' Neighbor then brought this article 78 proceeding.

In denying the petition, the court concluded that there was sufficient evidence in the record, including testimony of the building inspector, the restaurant operator, and the property owner, to support the conclusion that the premises had been operating as a restaurant. Moreover, the court noted that the renovations were now complete, and that neighbor had not sought injunctive relief before completion. As a result, the court concluded both that the ZBA's determination was not arbitrary and capricious, and that the petition was academic because of completion of the restaurant.

Non-Conforming Use Determination Upheld

DPL&B v. Village of Goshen

NYLJ 12/3/13

Supreme Ct., Orange Cty.

(Pagones, J.)

Neighbor brought an article 78 proceeding challenging the determination by the zoning board of appeals that landowner was entitled to operate a restaurant as a pre-existing nonconforming use. The court denied the petition and dismissed the proceeding, holding that the ZBA's determination was not arbitrary and capricious.

Landowner sought a building permit for interior alteration of an existing restaurant and another permit for a freestanding sign replacement. Neighbor then appealed the issuance of the alteration permit, contending that use as a restaurant/bar had been abandoned. The ZBA upheld issuance of the permit, concluding that the restaurant and bar use of the property had been in existence and was operating during the 12 months before the building permit.' Neighbor then brought this article 78 proceeding.

In denying the petition, the court concluded that there was sufficient evidence in the record, including testimony of the building inspector, the restaurant operator, and the property owner, to support the conclusion that the premises had been operating as a restaurant. Moreover, the court noted that the renovations were now complete, and that neighbor had not sought injunctive relief before completion. As a result, the court concluded both that the ZBA's determination was not arbitrary and capricious, and that the petition was academic because of completion of the restaurant.