Demisay, Inc. v. Petito

30 A.D.2d 663, 291 N.Y.S.2d 842, 1968 N.Y. App. Div. LEXIS 3843

Opinion

Judgment of the Supreme Court, Nassau County, dated November 28, 1967, modified, on the law, by (1) striking therefrom the second decretal paragraph, which directs remission of the matter for the sole purpose of determining whether petitioner’s present use is a lawful nonconforming use and (2) substituting therefor a provision remitting the matter to the appellant board for a plenary hearing in accordance with the views herein set forth. As so modified, judgment affirmed, with $10 costs and disbursements. No questions of fact were considered on this appeal. In our opinion, the conclusory findings made by the appellant Town Board were not supported by the facts adduced at the public hearing and, hence, the learned Special Term properly annulled the board’s determination. On the rehearing which has been ordered the pivotal consideration should be whether the town can demonstrate that the proposed use will be detrimental to or will adversely affect the public health, safety, morals or general welfare of the community. It is our view that the question of whether the present use is a lawful nonconforming use may be of some relevance to the ultimate determination of whether a special use permit ought to be issued, but it is not dispositive of that issue. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.