                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 1, 2016                    522438
________________________________

In the Matter of LUMBERJACK
   PASS AMUSEMENTS, LLC,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

TOWN OF QUEENSBURY ZONING
   BOARD OF APPEALS et al.,
                    Appellants.
________________________________


Calendar Date:    October 12, 2016

Before:    Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

                              __________


      Meyer & Fuller, PLLC, Lake George (Jeffrey R. Meyer of
counsel), for North High Realty Holdings, Inc., appellant.

      Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah
Everhart of counsel), for Town of Queensbury Zoning Board of
Appeals and another, appellants.

      Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John
D. Wright of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Krogmann, J.),
entered October 26, 2015 in Warren County, which granted
petitioner's application, in a combined proceeding pursuant to
CPLR article 78 and action for declaratory judgment, to annul a
determination of respondent Town of Queensbury Zoning Board of
Appeals finding that the use of a premises belonging to
respondent North High Realty Holdings, Inc. was permitted under
the Code of the Town of Queensbury.
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      In 2012, respondent North High Realty Holdings, Inc.
purchased real property in the Town of Queensbury, Warren County,
situated within a commercial intensive zoning district that
prohibits single-family residences (see Code of the Town of
Queensbury § 179-3-040 [B] [3]). The property consists of a
commercial building and a single-family dwelling that had been
permitted to be used as a residence because of its status as a
lawful preexisting nonconforming use (see Code of the Town of
Queensbury § 179-13-010). After purchasing the property, North
High sought a variance to enable it to continue to use the
single-family dwelling as a residence. In response, respondent
Town of Queensbury Zoning Administrator determined that a
variance was unnecessary because North High had submitted
evidence demonstrating that the single-family dwelling had been
occupied as a residence without an interruption of more than 18
consecutive months and, thus, the preexisting nonconforming use
had not been discontinued.

      Petitioner, the owner of commercial property located
adjacent to the subject property, appealed the Zoning
Administrator's determination, contending that the preexisting
nonconforming use should be deemed abandoned because the evidence
submitted to the Zoning Administrator showed that the dwelling's
use as a residence had been discontinued for more than 18 months
(see Code of the Town of Queensbury § 179-13-020). Following
public hearings, respondent Town of Queensbury Zoning Board of
Appeals (hereinafter the ZBA) ultimately upheld the Zoning
Administrator's determination. Petitioner then commenced this
combined CPLR article 78 proceeding and action for declaratory
judgment seeking, among other things, to annul the ZBA's
determination. Supreme Court, finding that the ZBA had applied
the wrong legal standard, granted the petition/complaint and
declared that the preexisting nonconforming use was discontinued.
This appeal by respondents ensued.

      We agree with respondents that Supreme Court erred in
finding that the ZBA applied the incorrect standard and in
substituting its judgment for that of the ZBA. It is well
settled that unless the issue presented is one of pure legal
interpretation, "[a] zoning board's interpretation of a local
zoning ordinance is afforded deference and will only be disturbed
                              -3-                522438

if irrational or unreasonable" (Matter of Lavender v Zoning Bd.
of Appeals of the Town of Bolton, 141 AD3d 970, 972 [2016],
appeal dismissed ___ NY3d ___ [Nov. 17, 2016]; see Matter of
Fruchter v Zoning Bd. of Appeals of the Town of Hurley, 133 AD3d
1174, 1175 [2015]; Matter of Avramis v Sarachan, 97 AD3d 874, 876
[2012], lvs denied 20 NY3d 852 [2012]). Here, the issue of
whether the preexisting nonconforming use was discontinued is
largely a fact-based inquiry, rather than a purely legal
interpretation of the zoning law. As such, the ZBA's
determination is entitled to deference (compare Matter of Town of
Johnsburg v Town of Johnsburg Zoning Bd. of Appeals, 299 AD2d
796, 800-801 [2002], with Matter of Winterton Props., LLC v Town
of Mamakating Zoning Bd. of Appeals, 132 AD3d 1141, 1142 [2015],
and Matter of Boni Enters., LLC v Zoning Bd. of Appeals of the
Town of Clifton Park, 124 AD3d 1052, 1053 [2015]).

      Turning to the Town Code, "abandonment" is defined in
pertinent part as "[a]n intent to abandon or to relinquish and
some overt act, or some failure to act, which carries the
implication that the owner neither claims nor retains any
interest in the building or use that is the subject matter of the
abandonment. A nonconforming use that is abandoned for more than
18 months shall be required to conform to the requirements of
this chapter" (Code of the Town of Queensbury § 179-2-010 [C]).
In addition to this general definition, the Town Code
specifically provides that, "[i]f a nonconforming use is
discontinued for a period of 18 consecutive months, such use
shall be deemed to be abandoned" (Code of the Town of Queensbury
§ 179-13-020).

      It is undisputed that the issue before the ZBA was the
application of the discontinuance provision, and our review of
the record confirms that the ZBA recognized that this was the
issue before it. Although the ZBA also addressed whether there
was an abandonment as that term is defined in the Town Code, the
record shows that this occurred only after the ZBA fully
considered the facts in light of the discontinuance provision.
In this regard, the Zoning Administrator correctly explained to
the ZBA that anything less than a complete cessation of use would
not constitute a discontinuance (see Matter of Town of Johnsburg
v Town of Johnsburg Zoning Bd. of Appeals, 299 AD2d at 799-800).
                              -4-                522438

In addition, we reject petitioner's assertion that the Town Code
requires proof that the dwelling was occupied continuously and
without any interruption for 18 months. Instead, the language of
the Town Code unambiguously sets forth that it is the cessation
of the preexisting nonconforming use – not the use itself – that
must occur continuously and without interruption for 18 months.
Further, we note that the ZBA's reading of this language is
consistent with the well-settled principle that an individual can
have more than one residence (see generally Yaniveth R. v LTD
Realty Co., 27 NY3d 186, 193 [2016]; Osterweil v Bartlett, 21
NY3d 580, 583 [2013]; People v O'Hara, 96 NY2d 378, 384-385
[2001]).

      Based upon our review of the record, we cannot say that the
ZBA's determination was irrational or unreasonable. In reaching
this conclusion, we note that "courts will not weigh the evidence
or reject the choice made by the [ZBA] where the evidence is
[merely] conflicting and room for choice exists" (Matter of
Sullivan v City of Albany Bd. of Zoning Appeals, 20 AD3d 665, 666
[2005] [internal quotation marks and citations omitted], lv
denied 6 NY3d 701 [2005]; see Matter of Squire v Conway, 256 AD2d
771, 772 [1998]). Here, conflicting evidence was put forth at
public hearings as to whether the preexisting nonconforming use
had been discontinued and, thus, abandoned. Significantly,
evidence was presented indicating that the owner's son stayed at
the dwelling with the apparent intent to retain it as a residence
with at least some degree of permanency, thus evidencing that a
complete cessation of the use had not occurred. Thus, in light
of the room for choice that exists based upon the conflicting
proof, we discern no basis to disturb the ZBA's determination
(see Matter of Bounds v Village of Clifton Springs Zoning Bd. of
Appeals, 137 AD3d 1759, 1760-1761 [2016]).

     Peters, P.J., McCarthy, Lynch and Mulvey, JJ., concur.
                              -5-                  522438

      ORDERED that the judgment is reversed, on the law, without
costs, petition dismissed, and it is declared that the
preexisting nonconforming use was not discontinued.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
