In the Matter of Atlantic Richfield Company et al., Respondents, v. Wayne Senn et al., Constituting the Zoning Board of Appeals of the City of Lockport, et al., Appellants

In the Matter of Atlantic Richfield Company et al., Respondents, v Wayne Senn et al., Constituting the Zoning Board of Appeals of the City of Lockport, et al., Appellants. [MAJORITY] Judgment unanimously reversed, without costs, and petition dismissed. Memorandum: Special Term erred in construing the provisions of the Lockport City Ordinance. That statute permits a property owner who enjoys a nonconforming use to switch to another nonconforming use of equal or more restrictive classification. This provision does not apply to petitioners, who operate their gas station pursuant to a variance, not pursuant to a nonconforming use (Matter of James v Town of New Hartford, 49 AD2d 247). Although Special Term did not reach the issue, we find petitioners’ proof inadequate to establish the “dollars and cents” proof necessary to support a use variance (Matter of Village Bd. v Jarrold, 53 NY2d 254). (Appeal from judgment of Supreme Court, Niagara County, Joslin, J. — art 78.) Present — Hancock, Jr., J. P., Doerr, Boomer, Green and Moule, JJ.