Petitioner appeals from a decision of the state Supreme Court dismissing his Article 78 claim challenging the determination of the Town of East Hampton Zoning Board that Owner could build a single family residence in addition to the existing commercial building on the Property.

Wainscott Wombles, LLC, purchased a Property in a residential zoning district, which prior to 1975 was a pre-existing nonconforming diner. In 1975, the Zoning Board approved the previous owner’s application to change the nonconforming use from a diner to a real estate office and antique shop. In 2011, a Town Building Inspector determined that the Town Code permitted construction of a single-family residence on the property in addition to the existing commercial building. The Planning Board then approved an application by the Wainscott to construct a separate 600 square foot single-family residence on the Property. In June 2012, the ZBA upheld the Building Inspector's determination, and the state Supreme Court denied petitioner’s resultant Article 78 claims.

On appeal, the Appellate Division found the East Hampton Town Code defines commercial property as “any lot containing a nonconforming business use” and permits “any one commercial property in any district” to have “two uses.” Accordingly, the Court found the ZBA and Planning Board's determinations approving the application of Wainscott to build the single-family residence were not arbitrary and capricious. The judgment dismissing petitioner’s claims was therefore affirmed.

The case was Concerned Citizens of Wainscott v Planning Board of the Town of East Hampton, 129 A.D.3d 716 (App. Div. 2015). The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D45540.pdf