Watral v. Scheyer

Appellate Division of the Supreme Court of the State of New York

Jan 29, 1996

Versions:223 A.D.2d 711

637 N.Y.S.2d 431

1996 N.Y. App. Div. LEXIS 659

In a proceeding pursuant to CPLR article 78 to review a determination of the respondents dated February 23, 1993, denying the petitioners’ application to establish a legal nonconforming use for an outdoor storage facility for certain raw materials, equipment, and vehicles related to their construction business, the petitioners appeal from a judgment of the Supreme Court, Suffolk County (Werner, J.), dated November 8, 1993, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The rule is well established that judicial review of a zoning *712board determination is limited to whether the determination has a rational basis and is supported by substantial evidence (see, Matter of Fuhst v Foley, 45 NY2d 441; Matter of Saladino v Fernan, 204 AD2d 554; Matter of Smith v Board of Appeals, 202 AD2d 674; Matter of Clarkson Realty Holding Corp. v Scheyer, 172 AD2d 521). In this case, the petitioners failed to establish that their present use of the property to store raw materials, equipment, and vehicles related to their construction business was a substantial use of the property prior to enactment of the 1937 ordinance (see, People v Miller, 304 NY 105, 107), as opposed to a mere incidental use associated with the property’s prior use as a dairy farm (see, Incorporated Vil. of Old Westbury v Alljay Farms, 100 AD2d 574, mod 64 NY2d 798; Matter of Winter v Guenther, 24 Misc 2d 537; Town of Mount Pleasant v Van Tassell, 7 Misc 2d 643, affd 6 AD2d 880). Moreover, substantial evidence was presented that the use of the property associated with the petitioners’ construction business is of more recent vintage (see, Town of Ithaca v Hull, 174 AD2d 911; Matter of Eger v Levine, 153 AD2d 998). Thus, the respondents’ determination to deny the petitioners’ application to certify their nonconforming use had a rational basis and was supported by substantial evidence. Balletta, J. P., Miller, O’Brien and Sullivan, JJ., concur.