SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1313 

CA 15-00967 

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ. 

 

IN THE MATTER OF TINA BOUNDS,

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

VILLAGE OF CLIFTON SPRINGS ZONING BOARD OF 

APPEALS, AND MARY ANNA MORROW, 

RESPONDENTS-RESPONDENTS. 

 

UNDERBERG & KESSLER LLP, ROCHESTER (RONALD G. HULL OF COUNSEL), FOR

PETITIONER-APPELLANT. 

LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (MARY JO S. KORONA OF

COUNSEL), FOR RESPONDENT-RESPONDENT VILLAGE OF CLIFTON SPRINGS ZONING

BOARD OF APPEALS. 

 

Appeal from a judgment (denominated order and judgment) of the

Supreme Court, Ontario County (Craig J. Doran, A.J.), entered January

29, 2015 in a proceeding pursuant to CPLR article 78. The judgment

dismissed the petition. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner appeals from a judgment dismissing her

petition to annul the issuance of a special use permit to respondent

Mary Anna Morrow. The record establishes that, for over 45 years,

Morrow and her husband operated a home improvement business out of a

building located on their residential property in the Village of

Clifton Springs. Following the enactment of the Village of Clifton

Springs Zoning Ordinance (Zoning Ordinance), the business became a

“grandfathered” nonconforming business use. Following the death of

Morrow’s husband in 2011, a former employee continued working out of

the building and completing work for the Morrows’ clients. As that

work was winding down, Morrow reached an agreement with another

individual to permit him to operate an HVAC business out of the

building, and that business moved in and began operations. When

Morrow applied for a building permit to make nonstructural changes to

the building to accommodate the HVAC business, the Code Enforcement

Officer denied the building permit on the ground that Morrow needed a

special use permit. Morrow thus applied for a special use permit and,

following public hearings, respondent Village of Clifton Springs

Zoning Board of Appeals (ZBA), granted the special use permit.
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CA 15-00967 

We reject petitioner’s contention that the ZBA misapplied section

120-55 of the Zoning Ordinance. Where, as here, the ordinance permits

the ZBA to interpret its requirements (see Zoning Ordinance § 120-46

[B] [3]), “ ‘specific application of a term of the ordinance to a

particular property is . . . governed by the [ZBA’s] interpretation

unless unreasonable or irrational’ ” (Matter of Libolt v Town of

Irondequoit Zoning Bd. of Appeals, 66 AD3d 1393, 1394, quoting Matter

of Frishman v Schmidt, 61 NY2d 823, 825). Section 120-55 of the

Zoning Ordinance provides, in pertinent part, that the ZBA may permit

“any nonconforming use of a structure” to “be changed to another

nonconforming use, provided that the [ZBA] . . . shall find that the

proposed use is equally appropriate or more appropriate to the

district than the existing nonconforming use”; however, “[w]hen a

nonconforming use of a structure . . . is discontinued or abandoned

for six (6) consecutive months or for eighteen (18) months during any

three-year period . . . , the structure . . . shall not thereafter be

used except in conformity with the regulations of the district in

which it is located” (Zoning Ordinance § 120-55 [C], [E]). The Zoning

Ordinance does not define the terms “discontinued” and “abandoned.” 

In such circumstances, an abandonment or discontinuance does not occur

“unless there has been a complete cessation of the nonconforming use”

(Matter of Marzella v Munroe, 69 NY2d 967, 968; see Glacial Aggregates

LLC v Town of Yorkshire, 72 AD3d 1644, 1646, appeal dismissed 16 NY3d

760; Matter of Town of Johnsburg v Town of Johnsburg Zoning Bd. of

Appeals, 299 AD2d 796, 799-800; cf. Matter of Toys “R” Us v Silva, 89

NY2d 411, 420). We conclude that the ZBA’s determination that Morrow

did not discontinue or abandon the nonconforming business use of the

property was a reasonable application of section 120-55, and we

therefore reject petitioner’s related contention that Supreme Court

erred in refusing to disturb that determination.

Contrary to petitioner’s further contention, we conclude that the

ZBA’s determination is supported by substantial evidence. We note

that the ZBA’s determination “must be sustained if it has a rational

basis and is supported by substantial evidence” (Toys “R” Us, 89 NY2d

at 419). In that respect, “ ‘[t]he duty of weighing the evidence and

making the choice rests solely upon the [administrative agency]. The

courts may not weigh the evidence or reject the choice made by [such

agency] where the evidence is conflicting and room for choice 

exists’ ” (id. at 424, quoting Matter of Stork Rest. v Boland, 282 NY

256, 267). “A record contains substantial evidence to support an

administrative determination when reasonable minds could adequately

accept the conclusion or ultimate fact based on the relevant proof”

(Matter of Brauch v Johnson, 19 AD3d 799, 800 [internal quotation

marks omitted]). Substantial evidence is “more than mere speculation

or conjecture, but less than a preponderance of the evidence” (Matter

of Joseph v Johnson, 27 AD3d 563, 563; see 300 Gramatan Ave. Assoc. v

State Div. of Human Rights, 45 NY2d 176, 180).

At the public hearings before the ZBA, Morrow stated that her

late husband’s home improvement business continued after his death in

November 2011 and that, as of September 2013, she was still in the

process of winding down the business. Morrow further stated that a

former employee of the home improvement business continued to work out
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CA 15-00967 

of the building on her property from November 2011 to January 2012,

when another individual moved his HVAC business into the building. In

light of that evidence, we discern no basis to disturb the ZBA’s

determination that there had not been a discontinuance or abandonment

of Morrow’s nonconforming business use.

Finally, we reject petitioner’s contention that Morrow’s failure

to present records of ongoing business activity constitutes a basis to

set aside the ZBA’s determination. Although it was appropriate for

the ZBA to request such records (see generally Toys “R” Us, 89 NY2d at

423-424), Morrow’s failure to produce them did not, as a matter of

law, render the ZBA’s determination arbitrary and capricious.

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court