Article 78 appeal for expansion of multifamily barn denied
Matter of Michael Mimassi v Town of Whitestown Zoning Board of Appeals
Petitioner brought about this Article 78 proceeding to challenge a judgment of the Supreme Court dismissing a petition to review a determination of the Whitestown Zoning Board of Appeals (ZBA). Petitioner purchased property in the Town of Whitestown that included a farmhouse that had been converted into a three-family dwelling. The Town’s Code does not permit multifamily dwellings but since this farmhouse was converted prior to the passage of the current Code, the building was permitted to remain as a preexisting nonconforming use. Petitioner proceeded to convert the barn into eight apartment units which prompted the Town’s Codes Enforcement Officer to issue an “order to remedy violation” and ordered the tenants to vacate. Petitioner then appealed to the ZBA which affirmed the order to remedy violation and determined that the construction of the apartment units violated the Code. Petitioner then filed an Article 78 appeal to annul the determination in Supreme Court. The petition was dismissed prompting this appeal.
The Court felt that since the Code prohibits multifamily dwellings, the expansion of the barn would nullify the acceptable preexisting nonconforming use and therefore the ZBA’s determination was not arbitrary and capricious. Petitioner did not take into account the ordinances addressing the issue of a nonconforming use and his discrimination argument lacked extrinsic evidence of clear and intentional discrimination sufficient to require a trial.
Accordingly, the Supreme Court affirmed the judgment so appealed from, without costs.
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