Town of Somerset v. Perry

115 A.D.2d 313, 495 N.Y.S.2d 875, 1985 N.Y. App. Div. LEXIS 54585

Opinion

—Judgment unanimously reversed, on the law, without costs, and application granted, in accordance with the following memorandum: Respondents’ conversion of their property from a bargain store to a diner constituted a change of a nonconforming use under the town’s zoning ordinance for which a variance was required (Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160). In granting the variance the town’s requirement that respondents obtain a use variance with conditions was warranted. The record indicates that two conditions imposed by the town were violated. Moreover, since respondents failed to timely file a CPLR article 78 proceeding to challenge the conditions contained in the variance, they are foreclosed from challenging them on appeal (see, Matter of Wolfram v Abbey, 55 AD2d 700; Town of N. Hempstead v De Feo, 27 AD2d 860). (Appeal from judgment of Supreme Court, Niagara County, Sedita, J.—permanent injunction.) Present— Dillon, P. J., Denman, Boomer, Green and O’Donnell, JJ.