Opinion
February 23, 1961
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed, petition granted, and determination annulled, without costs of this appeal to any party. Memorandum: This is an appeal from Special Term's order denying petitioner's application to annul the determination of the Board of Zoning Appeals which granted intervenors-respondents' application for a permit to erect a one-story addition "to rear of existing repair garage and dwelling to be used in conjunction with present automobile repair garage * * * in an R-1 Residential District". The respondent board's answer admits that the permit approved the extension and enlargement of a nonconforming use. It was stated upon the hearing that the proposed enlargement exceeded 25% of the floor area of the existing building. The plans filed by intervenors-respondents show the measurements of the proposed addition to be 60 feet by 41 feet 4 inches, or approximately the same size as the existing nonconforming structure. Such an enlargement is specifically prohibited by section 91-5-IX-D of the zoning ordinance for the proposed building is not only more than 25% larger than the existing one, but also extends "more than 50 feet from the existing nonconforming building". Even if it could be successfully urged that the proceeding sought a variance instead of an extension of a nonconforming use the record is barren of any showing of hardship sufficient to justify the granting of such a variance. The findings of the respondent board contain conclusory statements and insufficient facts to support the granting of the permit under any theory of application. We reaffirm what we wrote in Matter of Wehr v. Crowley ( 6 A.D.2d 214, 218) and Matter of Gerling v. Board of Zoning Appeals ( 6 A.D.2d 247, 251) that the action of the board must be supported by factual findings. The respondent Zoning Board of Appeals upon this record had no authority to issue the permit and the appellant's petition should be granted, the permit revoked and the determination of the board annulled.