Petitioners appeal denial of a permit to operate an automotive repair shop. On review, the Court first found that the trial court erred in transferring the proceeding pursuant to CPLR 7804(g). Despite this error, because the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, the Court held that pursuant to direction of law it would decide the matter on the merits.  The Putnam Valley Code provides that nonconforming use status is lost after such use “is inactive or ceases ... for a continuous period of more than two years.” Based on this language, the Court disagreed with the Zoning Board's contention that the minimal extent of the nonconforming use in this instance constituted either inactivity or cessation, and found that as there had been some automotive repair activity during the relevant time period, the property retained its status as a nonconforming use. The Court accordingly reversed the determination of the Town of Putnam Valley Zoning Board of Appeals, holding that its finding the property had lost its nonconforming use status did not have a rational basis, and was arbitrary and capricious.

The case is TAC Peck Equities, Ltd. v Town of Putnam Zoning Board of Appeals, 2015 WL 1915498 (NYAD 2 Dept. 4/29/2015) and it can be found here: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D45151.pdf