Delaney v. Zoning Board of Appeals of Cornwall

298 A.D.2d 584, 749 N.Y.S.2d 70, 2002 N.Y. App. Div. LEXIS 10272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2002
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Cornwall, dated November 20, 2000, which, after a hearing, granted the application of Paul Krafft, doing business as Mountainville Manor, inter alia, for permission to expand his preexisting, nonconforming commercial use, the petitioners appeal from a judgment of the Supreme Court, Orange County (Lange, J.), dated August 16, 2001, which denied the petition and dismissed the proceeding.

Ordered that the judgment is reversed, on the law, with costs, the petition is granted, the determination is annulled, and the matter is remitted to the Zoning Board of Appeals of the Town of Cornwall for further proceedings.

On November 20, 2000, the Zoning Board of Appeals of the Town of Cornwall (hereinafter the Zoning Board) granted Paul Krafft, the owner of the Mountainville Manor, a banquet facility, permission to expand his preexisting nonconforming use in an R-l residential district. This allowed the facility to be expanded from 1,810 square feet to 3,477 square feet for additional seating and handicapped accessible bathrooms, and permitted additional parking spaces with handicapped parking spaces, additional lighting, -ramps for handicapped individuals, and improvements to the septic system.

The Zoning Board failed to make a finding, as required by Cornwall Town Code § 158-29 (C) (1), that granting the application would “lessen any impacts associated with the nonconforming use.” Accordingly, the petition to annul the Zoning Board’s determination should have been granted (cf. Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683, 685). Smith, J.P., McGinity, Luciano and Crane, JJ., concur.