Opinion
2002-05051
Submitted April 22, 2003.
June 2, 2003.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Southampton dated May 17, 2001, which, inter alia, denied his application for a use variance, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Jones, J.), entered April 16, 2002, which denied the petition and dismissed the proceeding.
Kelly Hulme, P.C., Westhampton Beach, N.Y. (James N. Hulme of counsel), for appellant.
David J. Gilmartin, Jr., Town Attorney, Southampton, N.Y. (Eileen A. Powers of counsel), for respondents.
Before: NANCY E. SMITH, J.P., HOWARD MILLER, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The appellant was operating an automobile repair shop without first obtaining a certificate of occupancy for that use. At a hearing before the Zoning Board of Appeals of the Town of Southampton (hereinafter the ZBA), the appellant contended, inter alia, that the building in question previously had been used as a automobile repair shop, and as such, continued operation of the shop as a pre-existing nonconforming use should be allowed. The ZBA denied the appellant's request for a use variance and this CPLR article 78 proceeding ensued. The Supreme Court denied the petition and dismissed the proceeding.
An applicant for a use variance must meet stringent requirements, inter alia, of showing practical difficulties and undue hardship (see Matter of Consolidated Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598, 606-607; see also Matter of Soho Alliance v. New York City Bd. of Stds. Appeals, 95 N.Y.2d 437). The appellant failed to make such a showing. Accordingly, the Supreme Court properly concluded that the ZBA's determination should not be set aside because there was no evidence of illegality, arbitrariness, or abuse of discretion (see Matter of Soho Alliance v. New York City Bd. of Stds. Appeals, supra at 440; Matter of Consolidated Edison Co. of N.Y. v. Hoffman, supra). Moreover, the evidence presented to the ZBA established that the building had not been used as an automobile repair shop. Thus, there is no merit to the appellant's argument regarding nonconforming use (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308; Matter of Fuhst v. Foley, 45 N.Y.2d 441; Human Dev. Servs. of Port Chester v. Zoning Bd. of Appeals of Vil. of Port Chester, 110 A.D.2d 135, affd 67 N.Y.2d 702).
The appellant's remaining contentions are without merit.
SMITH, J.P., H. MILLER, COZIER and RIVERA, JJ., concur.