Justice James Pagones
DPL&B LLC sought a judgment declaring that determinations of building inspector Lewis and Zoning Board of Appeals (ZBA) were arbitrary and without substantial evidence. Betro & Pray Inc. moved for dismissal, and respondents, including the ZBA, moved for dismissal of the petition. DPL&B also sought to enjoin Betro from operating a restaurant/bar during the pendency of this action. DPL&B challenged the ZBA’s decision that Betro may operate a restaurant at property adjoining DPL&B’s. After a public hearing, ZBA denied DPL&B’s petition, upholding Lewis’ issuance of two building permits, certificate of occupancy and decision that the restaurant use of the property was in existence and operating on the property during the prior 12 months before the building permit. The court found, contrary to DPL&B’s contention, the records revealed the ZBA’s decision—that the nonconforming use of the premises was not abandoned—was not arbitrary, as the ZBA found the property had long been used as a restaurant and such use was before zoning was adopted in the village, and protected as a preexisting, nonconforming use. DPL&B failed to show the ZBA’s decision was illegal or arbitrary, entitling the decision deference. Hence, the petition was dismissed.
