Spinella v. Zoning Board of Appeals

-Judgment unanimously reversed on the law with costs and petition granted. Memorandum: On a prior appeal (Matter of Spinella v Zoning Bd. of Appeals, 144 AD2d 927), we remitted the matter to the Zoning Board to determine whether the use of the property at the time of the adoption of the Zoning Ordinance was a use first permitted in a B-2 General Business District or was a use first permitted in an M-l Manufacturing District. The Board determined that, at the time of the adoption of the Ordinance, petitioner was conducting a landscaping and excavating business and that it stored its equipment, including dump trucks, in a garage on its property. The Board concluded that the use was permitted in a B-2 General Business District because it fit under the category of "fuel, feed, seed, fertilizer and nursery sales and storage”, and under the category of "public, storage or municipal garage”. The Board’s conclusion is arbitrary and capricious because petitioner did not engage in retail sales of feed, seed, fertilizer and nursery supplies, but used the premises to store the equipment it used to perform landscaping and grading work. The category of "public, storage or municipal garage” applies only to public storage or a municipal garage and not to petitioner’s use of the property, which was for the private storage of its vehicles and equipment. A more analogous use is that of "storage or warehouse facilities”, which encompasses private storage of vehicles and equipment, and which is a use first permitted in an M-l Manufacturing District. (Appeal from judgment of Supreme Court, Oneida County, Grow, J.&emdash;art 78.) Present&emdash;Denman, J. P., Boomer, Pine, Balio and Lowery, JJ.