Hotaling v. Zoning Board of Appeals

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (William R. Roy, J), entered November 21, 2002 in a proceeding pursuant to CPLR article 78. The judgment denied the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum; Supreme Court properly denied the CPLR article 78 petition challenging the determination requiring petitioner to obtain a use variance, rather than an area variance, in order to operate his “adult use” business. The zoning regulation applicable herein prohibits “adult uses” within 1,000 feet of property used for residential purposes, and thus a use variance is required (see Matter of Doran v Lewis, 309 AD2d 1183, 1184 [2003]). With regard to petitioner’s constitutional challenges, we note that a CPLR article 78 proceeding is not the proper procedural vehicle by which to challenge the constitutionality of a legislative enactment (see Press v County of Monroe, 50 NY2d 695, 702 [1980]; see also DiMiero v Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 AD2d 875, 876-877 [1993], lv denied 83 NY2d 756 [1994]). We have examined petitioner’s remaining contention and conclude that it is without merit. Present—Pigott, Jr., P.J., Green, Pine, Wisner and Lawton, JJ.