Development

In neighbor's article 78 proceeding challenging the ZBA's determination that landowner was entitled to re-establish a nonconforming use, neighbor appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division affirmed, holding that the ZBA's conclusion that landowner had not discontinued the nonconforming use was entitled to deference.

Landowner operated a non-conforming gasoline filling station and convenience store across the street from neighbor's Dunkin Donuts franchise. On June 4, 2013, a tanker truck spilled 3,000 gallons of fuel on landowner's property. Landowner closed both the filling station and convenience store for remediation, which was completed in October 2014. When landowner inspected the system in preparation for reopening, landowner discovered a leak between the underground storage tanks and the pumps, requiring more remediation. Landowner then applied to the town building inspector for permission to reopen the filling station. The building inspector granted the application. Neighbor challenged the grant before the ZBA, contending that landowner had discontinued the nonconforming use. The ZBA upheld the building inspector's determination that landowner was entitled to invoke a provision of the local zoning law dealing with re-establishment of nonconforming uses after casualties. The ZBA gave landowner one year to re-establish the nonconforming use. Neighbor then brought this article 78 proceeding, but Supreme Court denied the petition, prompting appeal.