Summary
In Matter of Prudco Realty Corp. v Palermo (93 A.D.2d 837, affd 60 N.Y.2d 656), the Second Department again conferred standing upon a petitioner because of its ownership of nearby realty, in this case 200 feet distant.
Summary of this case from Hoxsie v. Zoning BoardOpinion
April 11, 1983
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Brookhaven, dated June 24, 1981, which granted the application of the intervenor-respondent S.F. Shopping Center, Inc., for a certificate of existing use for the operation of a gasoline service station at the southeast corner of Middle Country Road and Washington Avenue, Centereach, located in a J-2 business district, petitioner appeals from a judgment of the Supreme Court, Suffolk County (D'Amaro, J.), dated January 15, 1982, which dismissed the proceeding. Judgment reversed, on the law, with costs payable to petitioner by intervenor-respondent S.F. Shopping Center, Inc., petition granted, determination annulled and application denied. Special Term erred in holding that petitioner lacked standing to bring the instant proceeding. As an owner of property located within 200 feet of the subject premises, petitioner was, as a matter of law, an "aggrieved" person on whom subdivision 7 of section 267 Town of the Town Law conferred the right to seek judicial review of the determination of the respondent Zoning Board of Appeals of the Town of Brookhaven ( Edward A. Lashins, Inc. v Griffin, 132 N.Y.S.2d 896; Bayport Civic Assn. v Koehler, 138 N.Y.S.2d 524; Matter of Gerling v Board of Zoning Appeals of Town of Clay, 11 Misc.2d 84, revd on other grounds 6 A.D.2d 247; Matter of Holowka v Zoning Bd. of Appeals of Town of Greece, 80 Misc.2d 738; Matter of Manor Woods Assn. v Randol, 29 A.D.2d 778; Matter of Tuxedo Conservation Taxpayers Assn. v Town Bd. of Town of Tuxedo, 69 A.D.2d 320; Freundlich v Town Bd. of Southampton, 73 A.D.2d 684, affd 52 N.Y.2d 921; Matter of Grasmere Homeowner's Assn. v Introne, 84 A.D.2d 778; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 A.D.2d 484; Matter of Douglaston Civic Assn. v Galvin, 36 N.Y.2d 1). Special Term erred further in holding that the determination of the respondent zoning board of appeals was legally correct and supported by the evidence before it. The town's zoning ordinance provides: "Whenever a nonconforming use has been discontinued, abandoned or not used for a period of one (1) year or more, such use shall not thereafter be reestablished and any future use shall be in conformity with the provisions of this Ordinance." (Code of the Town of Brookhaven, § 85-431, subd A, par [5].) The evidence showed that the subject premises had not been operated as a gasoline service station for a period of at least four years, and had been leased to parties who used them in conformity with the provisions of the ordinance. Under the circumstances, the owner's intent to maintain the nonconforming use is irrelevant, and such use has been abandoned as a matter of law ( Matter of Franmor Realty Corp. v LeBoeuf, 201 Misc. 220, affd 279 App. Div. 795, mot for lv to app den 279 App. Div. 874; Matter of Jahn v Town of Patterson, 23 A.D.2d 688; Gauthier v Village of Larchmont, 30 A.D.2d 303, mot for lv to app den 22 N.Y.2d 646; Village of Spencerport v Webaco Oil Co., 33 A.D.2d 634; Baml Realty v State of New York, 35 A.D.2d 857; Matter of Hanna v Crossley, 40 A.D.2d 577; Matter of Sun Oil Co. of Pa. v Board of Zoning Appeals of Town of Harrison, 57 A.D.2d 627, affd 44 N.Y.2d 995). Thus, the respondent zoning board of appeals was without power to grant a certificate of existing use for the operation of the subject premises as a gasoline service station, and its determination was erroneous as a matter of law. In consequence, the judgment must be reversed, the petition granted, the determination annulled and the application denied. Damiani, J.P., Titone, Mangano and Boyers, JJ., concur.