IN RE: William SADLER (1997)

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Union Vale dated July 5, 1995, which adhered to a prior determination dated May 3, 1995, reversing a determination of the Code Enforcement Officer of the Town of Union Vale that a nonconforming use had been abandoned, the petitioners appeal from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated February 22, 1996, which denied the petition.

ORDERED that the judgment is affirmed, with costs.

The instant case involves a restaurant/bar establishment known as the Verbank Village Inn (hereinafter the Inn) which had been operating for many years as a lawful nonconforming use in a residential zone.  Section 90-108 of the Code of the Town of Union Vale (hereinafter the Code) provides that “[w]henever a nonconforming use has been discontinued for a period of one (1) calendar year, such use shall not thereafter be reestablished”.   In November 1994, the Inn, which had apparently been closed since about the beginning of 1994, was purchased by Frederick H. Aakjar, who began to take steps to reopen the Inn. In early 1995, the Code Enforcement Officer of the Town of Union Vale (hereinafter the Town), relying upon section 90-108 of the Code, issued a cease and desist order.   Aakjar appealed to the Zoning Board of Appeals of the Town of Union Vale (hereinafter the ZBA), and, after two hearings, the ZBA determined that the Inn had not lost its status as a nonconforming use pursuant to the Code as a result of abandonment.   The petitioners, who own neighboring homes, thereafter commenced this CPLR article 78 proceeding to annul the ZBA's determination.   The Supreme Court sustained the ZBA's determination and denied the petition.

 It is well settled that a determination of a zoning board will be upheld provided that it has a rational basis and is supported by substantial evidence (see, Matter of Shorelands, Inc. v. Matthew, 230 A.D.2d 862, 646 N.Y.S.2d 560;  Matter of New Venture Realty v. Fennell, 210 A.D.2d 412, 620 N.Y.S.2d 99).   Under such circumstances a reviewing court may not substitute its judgment for that of the zoning board, even if the court might have decided the matter differently (see, Matter of Toys “R” Us v. Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100, 676 N.E.2d 862;  Matter of Saladino v. Fernan, 204 A.D.2d 554, 612 N.Y.S.2d 182).

 While the petitioners are correct that the ZBA improperly considered the owner's intent to abandon or resume the nonconforming use, since intent is not a factor to be considered (see, Toys “R” Us v. Silva, 89 N.Y.2d 411, 421, 654 N.Y.S.2d 100, 676 N.E.2d 862;  Matter of Sun Oil Co. of Pa. v. Board of Zoning Appeals of Town of Harrison, 57 A.D.2d 627, 393 N.Y.S.2d 760, affd. 44 N.Y.2d 995, 408 N.Y.S.2d 502, 380 N.E.2d 328;  Matter of Pica v. Bennett, 164 A.D.2d 859, 559 N.Y.S.2d 369;  Village of Spencerport v. Webaco Oil Co., 33 A.D.2d 634, 305 N.Y.S.2d 20), there was sufficient other evidence before the ZBA which supports its determination.   The record shows that the Inn was used to stage a New Year's Eve party before the expiration of the statutory one-year period.   This was sufficient to sustain the ZBA's determination that the nonconforming use had not been abandoned (see, Matter of Marzella v. Munroe, 69 N.Y.2d 967, 516 N.Y.S.2d 647, 509 N.E.2d 342;  Town of Islip v. PBS Marina, 133 A.D.2d 81, 518 N.Y.S.2d 427;  Baml Realty v. State of New York, 35 A.D.2d 857, 314 N.Y.S.2d 1013).   The fact that the Inn operated without the necessary liquor license or health permit does not change the fact that the nonconforming use was continued (see, Matter of Kennedy v. Zoning Bd. of Appeals of Town of N. Salem, 205 A.D.2d 629, 613 N.Y.S.2d 264;  1 Anderson, New York Zoning Law and Practice, § 6.12, at 219-220 [3d ed.] ).

MEMORANDUM BY THE COURT.