Rosbar Co. v. Board of Appeals , 412 N.Y.S.2d 641 ( 1979 )

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondent dated November 3, 1977, upholding the denial of a permit to the petitioner to repair fire damage to its building, the petitioner appeals from a judgment of the Supreme Court, Nassau County, entered April 20, 1978, which dismissed the petition. Judgment reversed, on the law, without costs or disbursements, determination annulled and matter remitted to respondent for a new hearing, to be held forthwith in accordance herewith. The petitioner is a partnership which owns a building on the boardwalk in the City of Long Beach called "The Breakers Hotel”. The building was originally constructed as an "apartment hotel” in which each room, or suite of rooms was furnished with a kitchen. The bathroom was located in the hall on each floor. Thereafter, a zoning ordinance was enacted and the Breakers became a nonconforming use. In 1967 the petitioner removed the kitchens, added a bathroom to each room, and demolished several apartments on the first floor where a central kitchen and dining room were added. By this time the clientele of the hotel consisted of senior citizens. In 1969 the petitioner obtained a State license to operate the Breakers as a private proprietary home for adults (PPHA). There was no change in the clientele of the Breakers. Throughout this time the Building Commissioner of the City of Long Beach had continually issued amended certificates of occupancy for the building and the City of Long Beach had continually issued licenses to operate the premises as an apartment hotel, as a hotel and then as a home for adults. In March, 1977 the building was damaged by fire and petitioner applied to the building commissioner for a permit to make repairs. The permit was denied upon the ground, inter alia, that the legal nonconforming use was lost when the use of the building changed. The other grounds relied upon by the building commissioner have either been resolved in favor of the petitioner or have been abandoned by the respondent board of appeals. The board agreed with the building commissioner that there had been a change of use and it also held that the fire damage was so extensive that petitoner was actually seeking to renovate the building and that therefore full compliance with the off-street parking requirements of the zoning ordinance was required. In our opinion the finding of the board that the repairs sought by petitioner were so extensive as to amount to a renovation of the premises is not supported by substantial evidence and therefore its determination on this issue must be annulled. The main issue presented is whether the alteration of the building from an apartment hotel to a so-called "American Plan” hotel to a PPHA constituted a change of the nonconforming use. The testimony at the hearing before the board was primarily concerned with other issues and the evidence pertaining to this question was insufficient to support a factual finding with respect thereto. Accordingly, the matter must be remitted to the board for a new hearing solely on the issue of change of use. At the hearing an in-depth inquiry should be made as to the nature of petitioner’s business when it was conducted as an apartment hotel, "American Plan” hotel and a PPHA, with a view to establishing whether the alterations to the building resulted in the addition or elimination of bed space, a lessening or heightening of a demand for municipal services, greater or lesser use of the surrounding streets for automobile parking by the guests of the hotel, an increase or decrease in trafile to and from the building, etc. More than a mere change in name or a slight variation in clientele must be shown (see Shegda v Village of Lancaster, 192 Mise 560, affd 274 App Div 1087). In view of the protracted delay in this proceeding the new hearing should be held forthwith. Damiani, J. P., Titone and Rabin, JJ., concur.