Posner v. Wohlpart , 26 A.D.2d 830 ( 1966 )

In a proceeding under CPLR article 78 (1) to annul a determination of the respondent Zoning Board of Appeals affirming the respondent Building Inspector’s denial of petitioners’ application for the issuance of a building permit and (2) to compel the issuance of such permit, petitioners appeal from a judgment of the Supreme Court, Westchester County, entered May 11, 1966, which (a) dismissed the petition and the proceeding and (b) affirmed said determination. Judgment affirmed, with costs. No opinion. Brennan, Acting P. J., Rabin, Hopkins and Benjamin, JJ., concur; Hill, J., dissents and votes to reverse the judgment, to annul the determination and to direct the issuance of a permit, with the following memorandum: Petitioners showed that 88% of the revenues from the proposed establishment would be from merchandise sales and only 12% would be derived from incidental services. Less than 20% of the building is to be used for storage purposes. In my opinion, the limited services to be rendered in the proposed building are clearly incidental to the retail sales permitted in a Retail Business B-l District. If the percentage were reversed, or approximately so, I would agree that the sales of automotive accessories would be incidental to the service and storage of cars, rendering the structure a “public garage”, which is authorized only in a General Business B-2 District.