Spinella v. Zoning Board of Appeals of Town of New Hartford

144 A.D.2d 927, 534 N.Y.S.2d 33, 1988 N.Y. App. Div. LEXIS 14384

Opinion

Judgment unanimously reversed on the law with costs, petition granted, and matter remitted to the respondent Board for further proceedings, in accordance with the following memorandum: The Zoning Ordinance of the Town of New Hartford, adopted in 1952, provided that a prior nonconforming use may be changed to another nonconforming use of the same or higher classification. Following a hearing to determine whether the owner had abandoned a prior nonconforming use, the Zoning Board of Appeals, without reciting the facts upon which it was based, concluded that the use being made of the property in 1952 was a use first permitted in a B-2 General Business District. Based on this premise, it concluded that the nonconforming use was abandoned when it was changed to a use first permitted in an M-l Manufacturing District. There is substantial evidence in the record to support the Board’s determination that for at least two years after 1952 the property was occupied for a use first permitted in an M-l Manufacturing District. The record, however, is insufficient for us to determine on review whether the use of the property at the time of the adoption of the zoning ordinance in 1952 was a use permitted in a B-2 General Business District or was, as the owner contends, a use first permitted in an M-l Manufacturing District.

We therefore remit the matter to the Zoning Board of Appeals for a further hearing and a new determination, and for a statement of the facts supporting the determination. (Appeal from judgment of Supreme Court, Oneida County, Tenney, J. — art 78.) Present — Callahan, J. P., Denman, Boomer, Green and Lawton, JJ.