Village of Spencerport v. Webaco Oil Co.

33 A.D.2d 634, 305 N.Y.S.2d 20, 1969 N.Y. App. Div. LEXIS 3042

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1969
• Status: Published

Opinion

Judgment unanimously affirmed, with costs. Memorandum: Although in the absence of - special ordinance provision, intent to abandon a nonconforming use coupled with actual discontinuance of the use must be found in order to cause the loss of the right to maintain . a nonconforming use (Gauthier v. Village of Larchmont, 30 A D 2d 303, 305; City of Binghamton v. Gartell, 275 App. Div. 457; 8A McQuillin, Municipal Corporations [1965, revd.], § 25.192; 2 Rathkoff, Law of Zoning and Planning, p. 61-3, § 2; 101 C. J. S., Zoning, § 198), the ordinance in this casé providés that discontinuance of a nonconforming use for a-period of one year shall result in the loss of the right to resume it without a permit. Such a provision is deemed to supply ás a .matter, of law the element of intent,' so that discontinuance of the nonconforming usé for such period, if reasonable in length, amounts to an abandonment of the use (Matter of Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, affd. 279 App. Div. 795, mot. for lv. to reargue, den., 279 App. Div. 874; Matter of Jahn v. Town of Patterson, 23 A D 2d 688; see Gauthier v. Village of Larchmont,. supra) 8A McQuillin, Municipal- Corporations [1965, revd.], § 25.190.; Anderson, Zoning Law and Practice in New York State, §§ 6.45, 6.46; 2 Rathkoff, Law of Zoning and Planning, p. 61 — 4, § 3). This construction; we believe,- is consonant with the- objects of municipal zoning (see Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; and see 8A McQuillin, Municipal-Corporations, [1965, revd.] § 25.189.; Anderson, .Zoning Law and Practice in New .York State, §§ 6.47, 6.48). We -affirm the ■ finding of fact by the Trial Justice that'the nonconforming use. was discontinued for inore than one year. (Appeal from judgment of Monroe' Trial Term enjoining defendants from operating gasoline station.) Present- — Goldman, P. J., Del Vecchio,' Witmer, Gabrielli and Bastow, JJ.