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VILLAGE SPENCERPORT v. WEBACO OIL CO. (10/23/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


October 23, 1969

VILLAGE OF SPENCERPORT, RESPONDENT,
v.
WEBACO OIL CO., INC., ET AL., APPELLANTS

Appeal from judgment of Monroe Trial Term enjoining defendants from operating gasoline station.

Goldman, P. J., Del Vecchio, Witmer, Gabrielli and Bastow, JJ.

Memorandum: Although in the absence of special ordinance provision, intent to abandon a nonconforming use coupled with actual discontinuance of the use must be found in order to cause the loss of the right to maintain a nonconforming use (Gauthier v. Village of Larchmont, 30 A.D.2d 303, 305; City of Binghamton v. Gartell, 275 App. Div. 457; 8A McQuillin, Municipal Corporations [1965, revd.], § 25.192; 2 Rathkoff, Law of Zoning and Planning, p. 61-3, § 2; 101 C. J. S., Zoning, § 198), the ordinance in this case provides that discontinuance of a nonconforming use for a period of one year shall result in the loss of the right to resume it without a permit. Such a provision is deemed to supply as a matter of law the element of intent, so that discontinuance of the nonconforming use for such period, if reasonable in length, amounts to an abandonment of the use (Matter of Franmor Realty Corp. v. Le Boeuf, 201 Misc. 220, affd. 279 App. Div. 795, mot. for lv. to reargue, den., 279 App. Div. 874; Matter of Jahn v. Town of Patterson, 23 A.D.2d 688; see Gauthier v. Village of Larchmont, supra ; 8A McQuillin, Municipal Corporations [1965, revd.], § 25.190; Anderson, Zoning Law and Practice in New York State, §§ 6.45, 6.46; 2 Rathkoff, Law of Zoning and Planning, p. 61-4, § 3). This construction, we believe, is consonant with the objects of municipal zoning (see Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553; and see 8A McQuillin, Municipal Corporations, [1965, revd.] § 25.189; Anderson, Zoning Law and Practice in New York State, §§ 6.47, 6.48). We affirm the finding of fact by the Trial Justice that the nonconforming use was discontinued for more than one year.

Disposition

Judgment unanimously affirmed, with costs.

19691023

© 1998 VersusLaw Inc.



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