
    In the Matter of Carleen Smith, Appellant, v Town of Penfield et al., Respondents.
   Judgment unanimously affirmed, without costs. Memorandum: For reasons stated in the decision at Special Term (Finnerty, J.), we agree that, once the nonconforming two-story commercial structure which housed a tavern and apartments was destroyed by fire, the Zoning Ordinance required that the restoration of the structure be actually commenced within one year after the destruction. The filing of an application for a building permit is not tantamount to the commencement of construction and the issuance of the permit was a prerequisite to the commencement of construction. The denial here of a building permit after the expiration of one year from the destruction of the structure was neither arbitrary nor capricious. This determination is without prejudice to petitioner’s application, if she be so advised, for a variance pursuant to Town of Penfield Zoning Ordinance article XI (Appeal from judgment of Supreme Court, Monroe County, Finnerty, J.—art 78.) Present— Dillon, P. J., Doerr, O’Donnell, Pine and Schnepp, JJ.  