Genesee Farms, Inc. v. Scopano , 431 N.Y.S.2d 219 ( 1980 )

Callahan, J. (dissenting).

I respectfully dissent and vote to affirm. We cannot view this record blindly to see the petitioner’s store as a gas station operation simply because gasoline is dispensed and ignore the modern trend in merchandising other consumer products. We must take judicial notice of the recent "stop and go” type stores which have self-service gas pumps incidental to selected convenient items, principally dairy products. There is sufficient proof in this record to substantiate the gasoline sales herein as an "accessory use” within the purview of the village ordinance. The'majority take too restrictive a view of the "accessory use” provision, which must be interpreted flexibly to accommodate developing commercial practices (Dellwood Dairy Co. v City of New Rochelle, 7 NY2d 374). In my view, Special Term properly directed that the board of appeals issue a permit for the construction of a self-service gas island on the premises of petitioner Genesee Farms’ convenience food dairy store located in a commercial zone. It is arbitrary and capricious to deny building permits when the contemplated use, not otherwise violative of the ordinance, is substantially the same as the zoned character of the neighborhood (see, e.g., Cove Pizza v Hirshon, 61 AD2d 210; Fox v City of Buffalo Zoning Bd. of Appeals, 60 AD2d 991). (Appeal from judgment of Genesee Supreme Court—art 78.) Present—Dillon, P. J., Simons, Hancock, Jr., Callahan and Witmer, JJ.