Calcagni Construction Co. v. Zoning Board of Appeals

56 A.D.2d 845, 392 N.Y.S.2d 86, 1977 N.Y. App. Div. LEXIS 11181

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1977
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review appellant’s determination, dated February 2, 1976 and made after a hearing, which denied petitioner’s application for a zoning variance, the appeal is from a judgment of the Supreme Court, Westchester County, entered August 27, 1976, which (1) granted the application, (2) annulled the determination and (3) directed the issuance of a building permit to the petitioner. Judgment reversed, on the law, without costs or disbursements, and petition dismissed. The petitioner was using the subject premises as a station to store, repair and service its construction and earth moving equipment at the time of the enactment of a 1974 zoning ordinance which prohibited such use and rezoned the premises into a professional business (PB) zone. Petitioner may not now remodel or reface the premises for the establishment of an automobile service station, also a nonconforming use, without demonstrating unnecessary hardship (see Matter of Otto v Steinhilber, 282 NY 71, 76). A new nonconforming use may not be substituted for an existing nonconforming use despite its generic similarity to such existing use. Hopkins, Acting P. J., Latham, Damiani and Hawkins, JJ., concur.