Darcy v. Zoning Board of Appeals of Rochester

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the petition and annulled the Zoning Board’s determination that the nonconforming restaurant use at 75 Marshall Street had not been discontinued or abandoned. Section 115-96 (9) (a) of the Rochester City Code provides: "When a nonconforming use * * * is discontinued or abandoned for a period of six (6) consecutive months, regardless of any reservation of an intent to resume or not to abandon such use, such use shall not thereafter be reestablished or resumed.” It is undisputed that the property had not been used as a restaurant for at least 20 months. Thus, the nonconforming use had been discontinued well beyond the specified period, and the ordinance expressly forecloses inquiry into the owner’s intent to resume or not to abandon (see, Matter of Sun Oil Co. v Board of Zoning Appeals, 57 AD2d 627, affd 44 NY2d 995; Village of Spencerport v Webaco Oil Co., 33 AD2d 634; 1 Anderson, New York Zoning Law and Practice §§ 6.46-6.47 [3d ed]). (Appeal from Judgment of Supreme Court, Monroe County, Strobridge, J.—Article 78.) Present—Callahan, J. P., Green, Lawton, Boehm and Davis, JJ.