Retta v. Zoning Board of Appeals of the Village of Ossining

161 A.D.2d 193, 554 N.Y.S.2d 579, 1990 N.Y. App. Div. LEXIS 4956

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1990
• Status: Published

Opinion

Order of the Supreme Court, Westchester County (Donald N. Silverman, J.), entered on or about March 6, 1989, which denied petitioner’s application for vacatur of a decision of respondent Zoning Board bf Appeals of the Village of Ossining dated June 20, 1988, which denied an application for a building permit to refurbish a house for three-family use, is unanimously affirmed, without costs or disbursements.

Petitioner applied to respondent Board for a determination that the premises at issue was a preexisting continuing nonconforming use. Petitioner sought a building permit to engage in work as follows: "Complete renovation, new elect[ric], plumbing-kitchen-bathrooms-floors-sheet rock-windows-doors’ ’. Such work requires a variance (Zoning Ordinance of Village of Ossining § 6.1.1.1 [a] [1970]).

Petitioner asserts that his application to respondent was merely for a determination of a preexisting nonconforming use, not for a variance.

While the respondent Board held hearings and determined that the premises had a preexisting nonconforming use, it was determined that the use was not continuous, and was abandoned (Zoning Ordinance §6.1.1.1 [d]). The record indicates that the premises was a nonconforming use from 1961 to 1983, and such use was discontinued between 1983 and November 1987. Since the use was discontinued for more than one year, it is deemed abandoned under the terms of the Zoning Ordinance (Zoning Ordinance § 6.1.1.1 [d]).

Respondent’s determination was supported by substantial evidence adduced at the hearing, and had a rational basis (see, Matter of Consolidated Edison Co. v Hoffman, 43 NY2d 598, 608). Concur—Murphy, P. J., Sullivan, Milonas, Rosenberger and Asch, JJ.