State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522438 

________________________________

In the Matter of LUMBERJACK

PASS AMUSEMENTS, LLC,

Respondent,

v MEMORANDUM AND ORDER

TOWN OF QUEENSBURY ZONING 

BOARD OF APPEALS et al.,

Appellants.

________________________________

Calendar Date: October 12, 2016

Before: Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

__________

Meyer & Fuller, PLLC, Lake George (Jeffrey R. Meyer of

counsel), for North High Realty Holdings, Inc., appellant.

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah

Everhart of counsel), for Town of Queensbury Zoning Board of

Appeals and another, appellants.

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John

D. Wright of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the Supreme Court (Krogmann, J.),

entered October 26, 2015 in Warren County, which granted

petitioner's application, in a combined proceeding pursuant to

CPLR article 78 and action for declaratory judgment, to annul a

determination of respondent Town of Queensbury Zoning Board of

Appeals finding that the use of a premises belonging to

respondent North High Realty Holdings, Inc. was permitted under

the Code of the Town of Queensbury.
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In 2012, respondent North High Realty Holdings, Inc.

purchased real property in the Town of Queensbury, Warren County,

situated within a commercial intensive zoning district that

prohibits single-family residences (see Code of the Town of

Queensbury § 179-3-040 [B] [3]). The property consists of a

commercial building and a single-family dwelling that had been

permitted to be used as a residence because of its status as a

lawful preexisting nonconforming use (see Code of the Town of

Queensbury § 179-13-010). After purchasing the property, North

High sought a variance to enable it to continue to use the

single-family dwelling as a residence. In response, respondent

Town of Queensbury Zoning Administrator determined that a

variance was unnecessary because North High had submitted

evidence demonstrating that the single-family dwelling had been

occupied as a residence without an interruption of more than 18

consecutive months and, thus, the preexisting nonconforming use

had not been discontinued. 

Petitioner, the owner of commercial property located

adjacent to the subject property, appealed the Zoning

Administrator's determination, contending that the preexisting

nonconforming use should be deemed abandoned because the evidence

submitted to the Zoning Administrator showed that the dwelling's

use as a residence had been discontinued for more than 18 months

(see Code of the Town of Queensbury § 179-13-020). Following

public hearings, respondent Town of Queensbury Zoning Board of

Appeals (hereinafter the ZBA) ultimately upheld the Zoning

Administrator's determination. Petitioner then commenced this

combined CPLR article 78 proceeding and action for declaratory

judgment seeking, among other things, to annul the ZBA's

determination. Supreme Court, finding that the ZBA had applied 

the wrong legal standard, granted the petition/complaint and

declared that the preexisting nonconforming use was discontinued.

This appeal by respondents ensued.

We agree with respondents that Supreme Court erred in

finding that the ZBA applied the incorrect standard and in

substituting its judgment for that of the ZBA. It is well

settled that unless the issue presented is one of pure legal

interpretation, "[a] zoning board's interpretation of a local

zoning ordinance is afforded deference and will only be disturbed
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if irrational or unreasonable" (Matter of Lavender v Zoning Bd.

of Appeals of the Town of Bolton, 141 AD3d 970, 972 [2016],

appeal dismissed ___ NY3d ___ [Nov. 17, 2016]; see Matter of

Fruchter v Zoning Bd. of Appeals of the Town of Hurley, 133 AD3d

1174, 1175 [2015]; Matter of Avramis v Sarachan, 97 AD3d 874, 876

[2012], lvs denied 20 NY3d 852 [2012]). Here, the issue of

whether the preexisting nonconforming use was discontinued is

largely a fact-based inquiry, rather than a purely legal

interpretation of the zoning law. As such, the ZBA's

determination is entitled to deference (compare Matter of Town of

Johnsburg v Town of Johnsburg Zoning Bd. of Appeals, 299 AD2d

796, 800-801 [2002], with Matter of Winterton Props., LLC v Town

of Mamakating Zoning Bd. of Appeals, 132 AD3d 1141, 1142 [2015],

and Matter of Boni Enters., LLC v Zoning Bd. of Appeals of the

Town of Clifton Park, 124 AD3d 1052, 1053 [2015]). 

Turning to the Town Code, "abandonment" is defined in

pertinent part as "[a]n intent to abandon or to relinquish and

some overt act, or some failure to act, which carries the

implication that the owner neither claims nor retains any

interest in the building or use that is the subject matter of the

abandonment. A nonconforming use that is abandoned for more than

18 months shall be required to conform to the requirements of

this chapter" (Code of the Town of Queensbury § 179-2-010 [C]). 

In addition to this general definition, the Town Code

specifically provides that, "[i]f a nonconforming use is

discontinued for a period of 18 consecutive months, such use

shall be deemed to be abandoned" (Code of the Town of Queensbury

§ 179-13-020). 

It is undisputed that the issue before the ZBA was the

application of the discontinuance provision, and our review of

the record confirms that the ZBA recognized that this was the

issue before it. Although the ZBA also addressed whether there

was an abandonment as that term is defined in the Town Code, the

record shows that this occurred only after the ZBA fully

considered the facts in light of the discontinuance provision. 

In this regard, the Zoning Administrator correctly explained to

the ZBA that anything less than a complete cessation of use would

not constitute a discontinuance (see Matter of Town of Johnsburg

v Town of Johnsburg Zoning Bd. of Appeals, 299 AD2d at 799-800). 
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In addition, we reject petitioner's assertion that the Town Code

requires proof that the dwelling was occupied continuously and

without any interruption for 18 months. Instead, the language of

the Town Code unambiguously sets forth that it is the cessation

of the preexisting nonconforming use – not the use itself – that

must occur continuously and without interruption for 18 months. 

Further, we note that the ZBA's reading of this language is

consistent with the well-settled principle that an individual can

have more than one residence (see generally Yaniveth R. v LTD

Realty Co., 27 NY3d 186, 193 [2016]; Osterweil v Bartlett, 21

NY3d 580, 583 [2013]; People v O'Hara, 96 NY2d 378, 384-385

[2001]).

Based upon our review of the record, we cannot say that the

ZBA's determination was irrational or unreasonable. In reaching

this conclusion, we note that "courts will not weigh the evidence

or reject the choice made by the [ZBA] where the evidence is

[merely] conflicting and room for choice exists" (Matter of

Sullivan v City of Albany Bd. of Zoning Appeals, 20 AD3d 665, 666

[2005] [internal quotation marks and citations omitted], lv

denied 6 NY3d 701 [2005]; see Matter of Squire v Conway, 256 AD2d

771, 772 [1998]). Here, conflicting evidence was put forth at

public hearings as to whether the preexisting nonconforming use

had been discontinued and, thus, abandoned. Significantly,

evidence was presented indicating that the owner's son stayed at

the dwelling with the apparent intent to retain it as a residence

with at least some degree of permanency, thus evidencing that a

complete cessation of the use had not occurred. Thus, in light

of the room for choice that exists based upon the conflicting

proof, we discern no basis to disturb the ZBA's determination

(see Matter of Bounds v Village of Clifton Springs Zoning Bd. of

Appeals, 137 AD3d 1759, 1760-1761 [2016]). 

Peters, P.J., McCarthy, Lynch and Mulvey, JJ., concur.
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ORDERED that the judgment is reversed, on the law, without

costs, petition dismissed, and it is declared that the

preexisting nonconforming use was not discontinued.

ENTER:

Robert D. Mayberger

Clerk of the Court