Carlington Corp. v. Siegel , 61 A.D.2d 813 ( 1978 )

a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of North Hempstead which, after a hearing, denied petitioners’ application, inter alia, for a conditional use permit, petitioners appeal from a judgment of the Supreme Court, Nassau County, dated April 21, 1977, which denied the application and dismissed the petition. Judgment affirmed, with costs. We agree that the petition was properly dismissed and that the board’s denial of petitioners’ application was supported by substantial evidence. However, we note that the board indicated in its findings that the prior nonconforming use of the premises as a retail grocery store had been abandoned and that, as a result, pursuant to section 70-208L of the Town Code the nonconforming status had been lost. This finding was improper. The issue was neither raised at the public hearing nor included in the board’s notice of decision. Furthermore, there is no abandonment of a nonconforming use when the discontinuance involves a temporary cessation of business, over which the owner has no control, or the inability to find a tenant, as occurred here (see 2 Rathkopf, Law of Zoning and Planning [3d ed], pp 61-9, 61-10; City of Binghamton v Gartell, 275 App Div 457). Suozzi, J. P., Gulotta, Hargett and Hawkins, JJ., concur.