Forjone v. Bove

Feb 7, 2001
Versions:280 A.D.2d 948
720 N.Y.S.2d 869
2001 N.Y. App. Div. LEXIS 1042

—Judgment unanimously affirmed without costs. Memorandum: Petitioner commenced this proceeding to challenge respondents’ determination granting the owner of property adjoining petitioner’s property a certificate of nonconformance for the storage, maintenance and repair of dump trucks. Supreme Court properly dismissed the petition. Petitioner’s contention that respondents failed to comply with certain requirements of the zoning ordinance of the Town of Clarendon was not raised at the public hearing and may not be raised for the first time in the petition (see, Matter of Aldrich v Pattison, 107 AD2d 258, 269; Matter of Town of Candor v Flacke, 82 AD2d 951, 952). Contrary to petitioner’s contention, the applicant for the certificate of nonconformance met her burden of establishing that the nonconforming use of the property was legally created prior to the enactment of the zoning ordinance (see, Town of Ithaca v Hull, 174 AD2d 911, 913). Further, substantial evidence supports respondents’ determination that the nonconforming use was not discontinued or abandoned under the terms of the zoning ordinance (see, Matter of Calvi v Zoning Bd. of Appeals, 238 AD2d 417, 418). Finally, the condition imposed by respondents limiting the nonconforming use to six vehicles has a rational basis and is supported by substantial evidence (see, Matter of Clarkson Realty Holding Corp. v Scheyer, 172 AD2d 521, 522). (Appeal from Judgment of Supreme Court, Orleans County, Rath, Jr., J. — CPLR art 78.) Present — Pigott, Jr., P. J., Green, Hayes, Scudder and Kehoe, JJ.