Ardella v. Evershed
| Decision Date | 17 February 1959 |
| Citation | 16 Misc.2d 261,182 N.Y.S.2d 491 |
| Parties | Christopher ARDELLA et al., Constituting residents and owners of property on Culverton Drive, Town of Irondequoit, New York, Petitioners, v. William EVERSHED et al., Constituting the Zoning Board of Appeals of the Town of Irondequoit, New York, Respondents, and Angelo P. Tabone, Intervenor- Respondent. |
| Court | New York Supreme Court |
Peter C. Sulli, Sr., Rochester, for petitioners.
Emmett J. Schnepp, Rochester, for respondents.
Pilato & Pilato, Rochester, Samuel C. Pilato, Rochester, of counsel, for Angelo P. Tabone, intervenor-respondent.
This is a proceeding to review the action of the respondent Zoning Board of Appeals of the own of Irondequoit in granting to intervenor a permit to use his premises at No. 5 Culverton Road in said Town, located in a residential district, for tinsmith shop purposes for three additional years, subject to certain conditions. It appears that intervenor's shop building was erected before the area became built up with residences, and intervenor has used the premises as a tinsmith shop for upwards of ten years. In 1955 he was advised by representatives of the town that he was violating the town zoning ordinance; and so he made application to the Zoning Board of Appeals for a variance, and one was granted to him for three years subject to certain conditions. When that permit expired in 1958 he made the application which resulted in the issuance of the further three-year permit to which petitioners object.
Before granting this latter permit the Zoning Board of Appeals conducted a hearing, upon due notice, at which a great many neighbors objected to the continuance of intervenor's shop in this location. After the hearing the Board designated two of their members to view the premises and report back. This was donw and thereupon the Board granted the permit.
Petitioners assert that the Board have based their action on an erroneous conception of the facts and law, and that they have not stated findings of fact which will support their action.
Intervenor claims that he has a right to conduct the shop as a nonconforming use; and respondent Board in their findings seem to give weight to the fact that intervenor's building was used commercially for a great many years.
At the outset it must be clear that intervenor has not established that his non-conforming use is a continuance of such use antedating the enactment of the zoning ordinance wherein the area was zoned residential. There is some evidence that the building occupied by intervenor was erected at about or before the time the ordinance was first adopted; but the evidence is at best hazy in this regard, intervenor did not stand on such ground, but on the contrary assumed that he was subject to the ordinance, and respondent Board did not find that the premises were erected before the adoption of the zoning ordinance. Moreover, it appears that the use to which intervenor has put the property is different from and more extensive than that for which it was used prior to his occupancy, and hence he has no right to continue such use, except within the provisions of the ordinance. Zoning Ordinance of the Town of Irondequoit, §§ 25, 26, 29-b; Crossroads Recreation v. Broz. 4 N.Y.2d 39, 42, 172 N.Y.S.2d 129, 130; Bornscheuer v. Corbett, 6 A.D.2d 835, 175 N.Y.S.2d 913; French v. Incorporated Village of North Haven, Suffolk County, 1 A.D.2d 788, 148 N.Y.S.2d 151.
It appears that when intervenor first began using his premises as a tinsmith shop, there were few homes in the area, although it was zoned residential. It may be assumed that when the town officials notified intervenor in 1955 that he was violating the ordinance in using his premises commercially without a permit, more residences were being constructed in the area. Still upon intervenor's application that year for a variance under Section 32-c of the zoning ordinance, the Board granted the permit, for three years, subject to conditions and limitations. At that time the area was not nearly as fully built up with residences as it is now, and it appears that the Board acted upon the assumption that others in the tract would not be seriously harmed thereby.
Section 32-c of the zoning ordinance provides in part as follows:
...
To continue reading
Request your trial
-
Brundage v. Borchard
...297 N.Y. 937, 80 N.E.2d 342; Matter of Rosenbloom v. Crowley, 7 A.D.2d 193, 181 N.Y.S.2d 333 [4th Dept.]; Matter of Ardella v. Evershed, 16 Misc.2d 261, 264, 182 N.Y.S.2d 491, 493). The motion to annul and to vacate the decision of the Board of Appeals and the Special Permit granted thereun......
-
Hiscox v. Levine
...facts. They are wholly unsupported by substantiating facts. This defect is another reason to warrant reversal. cf. Ardella v. Evershed, 16 Misc.2d 261, 182 N.Y.S.2d 491. In view of all that has been said herein it is unnecessary to consider any other points raised by counsel. The determinat......
-
Libby, Application of
...purpose and intent of the ordinance in granting the limited permit to intervenor. An interesting contrast is found in Ardella v. Evershed, Sup., 182 N.Y.S.2d 491 wherein it is held that the Board exceeded their powers in granting a special permit which is out of harmony with the general pur......