77 A.D.2d 784 | N.Y. App. Div. | 1980
Lead Opinion
Judgment reversed, without costs, and matter remitted to the Zoning Board of Appeals of the Village of Oakfield for further proceedings in accordance with the following memorandum: In this CPLR article 78 proceeding respondents appeal from a judgment directing them, as the Zoning Board of Appeals of the Village of Oakfield, to grant petitioner a building permit for the construction of a self-service gasoline island to be operated on petitioner’s premises in conjunction with its ongoing operation of a dairy goods store. The trial court found that the proposed use did not constitute a service station, as defined by the ordinance, and that the proposed use was an accessory use to the operation of the dairy goods store. We reject both conclusions. The village zoning ordinance defines "service station” and "accessory use” as follows: "service station [gas station]: Any area of land including structures thereon, or any building or part thereof that is used for the sale of motor fuels or motor vehicle accessories and which may include facilities for lubrication, washing, or otherwise servicing motor vehicles, but not including body work, major repair, or painting thereof by any means, accessory use: A use customarily incidental and subordinate to the principal use of building or land and located on the same lot with such principal use of building or land.” Petitioner proposes to construct a three-pump gasoline island and to install
Dissenting Opinion
I respectfully dissent and vote to affirm. We cannot view this record blindly to see the petitioner’s store as a gas station operation simply because gasoline is dispensed and ignore the modern trend in merchandising other consumer products. We must take judicial notice of the recent "stop and go” type stores which have self-service gas pumps incidental to selected convenient items, principally dairy products. There is sufficient proof in this record to substantiate the gasoline sales herein as an "accessory use” within the purview of the village ordinance. The'majority take too restrictive a view of the "accessory use” provision, which must be interpreted flexibly to accommodate developing commercial practices (Dellwood Dairy Co. v City of New Rochelle, 7 NY2d 374). In my view, Special Term properly directed that the board of appeals issue a permit for the construction of a self-service gas island on the premises of petitioner Genesee Farms’ convenience food dairy store located in a commercial zone. It is arbitrary and capricious to deny building permits when the contemplated use, not otherwise violative of the ordinance, is substantially the same as the zoned character of the neighborhood (see, e.g., Cove Pizza v Hirshon, 61 AD2d 210; Fox v City of Buffalo Zoning Bd. of Appeals, 60 AD2d 991). (Appeal from judgment of Genesee Supreme Court—art 78.) Present—Dillon, P. J., Simons, Hancock, Jr., Callahan and Witmer, JJ.