Petitioner applied for a building permit to undertake certain renovations to an existing building on the property so that it could continue to operate as a boarding house. Corporation counsel for Respondent City of Kingston Building Safety Division informed Petitioner that a boarding house was not a lawful preexisting nonconforming use, and denied the petition. Petitioner brought a CPLR Article 78 proceeding to review the determination, but the Supreme court remitted pending a final determination. Once the denial was official, Petitioner appealed to the City of Kingston Zoning Board of Appeals, which affirmed the denial. Petitioner again filed an Article 78 proceeding to challenge the determination, and the Supreme Court partially vacated the decision to the extent it required the nonconforming user to obtain a permit or license to operate, and otherwise upheld the determination. Petitioner appealed.
On appeal, the Third Department agreed with Petitioner that the Supreme Court acted in error by substituting its judgment for that of the ZBA by basing its decision on a rationale not cited by the ZBA in its determination. However, the Court found that despite this error, the only issue before it was whether the ZBA’s decision as arbitrary and capricious.
It was not in dispute that the property operated as a boarding house and had previously been used as a nursing home, however the City's zoning law expressly prohibited the substitution of nonconforming uses. In determining that the boarding house was a change from the prior use, the ZBA relied in part on the affidavit of a relative of the owner and operator of the property from the 1950s through the 1970s, and who also lived on the premises with her family. This woman stated that the property was operated as “Garry's Nursing Home,” which was corroborated by other documents in the record. Nurses assisted residents with dressing, bathing and shaving, and dispensed medication. A 1958 compliance letter also established that the property was subject to the Social Welfare Law, and advised Garry's Nursing Home that it must provide around-the-clock coverage by a licensed nurse, maintain appropriate medical records, and dispose of narcotics properly.
Based on this testimony and accompanying documentation, the Court found there was sufficient evidence in the record for the ZBA to rationally conclude that the property was no longer being used as a nursing home. The Court also held, without discussion, that Petitioner’s remaining arguments lacked merit. Accordingly, the Court affirmed the judgment of the lower court.
The case was Tri-Serendipity, LLC v. City of Kingston, 145 A.D.3d 1264 (3d Dep’t 2016).