GARDNER v. Thomas H. Frauenhofer, Willis K. Penner and Elizabeth W. Penner, Intervenors-Respondents. (1999)

Petitioners, the owners of an access easement providing for the use and enjoyment of lakefront property on Canandaigua Lake, were granted a certificate of existing nonconforming use to continue their use of an existing nonconforming mooring, dock and boat structure.   After petitioners expanded their existing nonconforming use by installing a boat hoist with a new dock, respondent Town of Canandaigua Code Enforcement Officer, Jerry R. Repard (Code Enforcement Officer), discovered that the certificate of existing nonconforming use had been issued in error and revoked the certificate.   Petitioners appealed the revocation to respondent Town of Canandaigua Zoning Board of Appeals (ZBA) and simultaneously applied for area variances to allow for the continuation of the newly built structure.   The ZBA upheld the determination of the Code Enforcement Officer and denied petitioners' application for area variances.   Petitioners then commenced this CPLR article 78 proceeding seeking to annul the ZBA's determination on the grounds that it is arbitrary and capricious and not supported by substantial evidence.

 Supreme Court properly dismissed the petition.   Because the certificate of existing nonconforming use was issued on the basis of petitioners' misleading representations, it was properly revoked (see, Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372, rearg. denied 71 N.Y.2d 995, 529 N.Y.S.2d 278, 524 N.E.2d 879, appeal dismissed and cert. denied 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9;  Matter of Brock v. Zoning Bd. of Appeals, 237 A.D.2d 670, 672, 653 N.Y.S.2d 988).   The ZBA's determination denying the area variances requested by petitioners is not arbitrary and capricious (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384-386, 633 N.Y.S.2d 259, 657 N.E.2d 254).   Although petitioners also contend that the determination is not supported by substantial evidence, that standard of review is not applicable here (see, Matter of Sasso v. Osgood, supra, at 385, n. 2, 633 N.Y.S.2d 259, 657 N.E.2d 254).

Judgment unanimously affirmed without costs.

MEMORANDUM: