Chautauqua Investment Company, Respondent, v. Town of Chautauqua, Appellant

Chautauqua Investment Company, Respondent, v Town of Chautauqua, Appellant. [MAJORITY] Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Defendant town appeals from a judgment declaring the Town of Chautauqua zoning ordinance ineffective to prohibit the use of plaintiff’s property as a commercial campground. Plaintiff purchased the property near Chautauqua Lake on October 28] 1977 from the Bethany Fellowship of Independent Baptist Churches, Inc., for use as a commercial campground to accommodate up to 200 temporary residences or trailer sites. On the property at the time of purchase were one main building, nine smaller buildings and a cottage which had been used as a nonprofit summer youth facility and a family religious camp. On December 27,1977 a. zoning ordinance was adopted which placed the property in the residential-lakeside (R-L) district, a zone in which the commercial campground use would be prohibited. There is uncontradicted evidence that plaintiff was aware prior to the purchase of the effect that the proposed zoning ordinance would have upon the property. Although plaintiff made repairs and improvements to the existing summer camp buildings prior to the adoption of the ordinance, there is no evidence that the property was on that date or at any other time in use as a commercial campground for temporary residences or trailers. Thus, there was no’ legal nonconforming use as a commercial campground and the court’s contrary holding was in error. Accordingly, the first decretal paragraph of the judgment is modified so as to declare that the zoning ordinance prohibits the contemplated use of the property in accordance with the New York State Health Department permit as a commercial campground for temporary residences and trailers. The second decretal paragraph is stricken. (Appeal from judgment of Chautauqua Supreme Court, Cass, J. — declaratory judgment.) Present — Hancock, Jr., J. P., Callahan, Doerr, Den-man and Schnepp, JJ.