Bon Air Estates, Inc. v. Village of Suffern

• Decision Date: 02 July 1969
• Citation: 32 A.D.2d 921,302 N.Y.S.2d 304
• Parties: BON AIR ESTATES, INC., Appellant-Respondent, v. The VILLAGE OF SUFFERN, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 304

302 N.Y.S.2d 304

32 A.D.2d 921

BON AIR ESTATES, INC., Appellant-Respondent, v. The VILLAGE OF SUFFERN, Respondent-Appellant.

Supreme Court, Appellate Division, Second Department.

July 2, 1969.

David Coral, Suffern, for plaintiff-appellant-respondent; Reuben Ortenberg, David Coral, Suffern, of counsel.

Robert J. Stolarik, Suffern, for defendant-respondent-appellant.

Before CHRIST, Acting P.J., and BRENNAN, HOPKINS, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

In an action to declare certain provisions of the Zoning Ordinance of the Village of Suffern, as interpreted by the Building Inspector of the Village, unconstitutional and to recover money damages, in which action the Village counterclaimed for money damages, (1) plaintiff appeals from a judgment of the Supreme Court, Rockland County, entered November 4, 1968 after a nonjury trial, which dismissed the complaint, and (2) defendant cross-appeals from the judgment insofar as it omitted to grant relief on the counterclaims.

Judgment reversed, on the law and the facts, and new trial granted, with costs to abide the event.

Plaintiff is the owner of real property in the Village of Suffern. On several occasions prior to 1966 plaintiff erected garden apartment complexes on the property. On each occasion it was only required to pay the maximum sum of $1,000 for a building permit, pursuant to section 55--2 of the Zoning Ordinance of the Village of Suffern, even though each complex contained several building groups. On October 11, 1966 it tendered $1,020, representing $1,000 for a building permit and $20 for a certificate of occupancy. It was advised by the Building Inspector of the Village that henceforth each building group in a garden apartment complex would require a separate building permit and a separate certificate of occupancy. According to the Building Inspector, he had been advised by the Village attorney that this was the interpretation to be given section 55--2 of the Zoning Ordinance. This interpretation required that the fee for each building permit be computed separately and that the maximum of $1,000 per permit apply independently to each building group and not to the complex as a whole. Accordingly, the Building Inspector demanded $9,550 in payment for 22 building permits and certificates of occupancy. Plaintiff paid this sum and brought the present action. The trial court found that the ordinance as interpreted was constitutional and dismissed the complaint.

Insofar as applicable to this appeal, section 55--2 of the Zoning Ordinance of the Village of Suffern reads as follows:

'No building * * * shall be erected, * * * until there has been filed with the Building Inspector a plan in duplicate drawn to scale showing the actual dimensions of the lot to be built upon, the existing contours thereof at two (2) foot intervals, the exact size and location on the lot of the buildings or structures and accessory buildings already existing thereon and to be erected, each properly indicated, and such other information as may be necessary to determine and provide for the enforcement of this ordinance. * * *.

'Fees. Upon the filing of such papers, the applicant shall pay to the Building Inspector the following fees, * * *:

B. Two (2) or more family residence, commercial construction, accessory construction, industrial construction and all other building permits: A fee of ten dollars ($10.) for the first one thousand dollars ($1,000.) of construction cost, and a fee of five dollars ($5.) for every additional one thousand dollars ($1,000.) of construction cost or fraction thereof;

C. Maximum building permit fee for any building permit shall be one thousand dollars ($1,000.).'

We are of the opinion that the above ordinance is ambiguous and must be judicially interpreted. It does not make clear whether one...