Corning v. Town of Ontario

• Decision Date: 28 April 1953
• Citation: 204 Misc. 38
• Parties: William C. Corning et al., Plaintiffs,<BR>v.<BR>Town of Ontario, Wayne County, et al., Defendants.
• Court: New York Supreme Court

204 Misc. 38

William C. Corning et al., Plaintiffs,

v.Town of Ontario, Wayne County, et al., Defendants.

April 28, 1953.

Snyder & Snyder for plaintiffs.

J. S. Albright for defendants.

ROBERTS, J.

This is a motion by the plaintiffs for an injunction pendente lite to restrain the defendants from attempting to enforce the provisions of a town zoning ordinance as applied to a house trailer used for living quarters.

Plaintiffs in their complaint allege that prior to the use of such house trailer they were advised both orally and in writing by the town clerk and building inspector of the defendant town that they could place a trailer upon a lot located on Lake Road in said town and use it to live in if they made the necessary sanitary provisions and that there were no restrictions prohibiting plaintiffs from living in a trailer on said lot. It is further alleged that the plaintiffs thereafter sold their home, purchased a lot in said town, purchased a trailer, installed sanitary facilities including a well and septic tank and installed electricity; that thereafter they were notified that they could not occupy said trailer to live in as it contained less than 900 square feet and that a criminal proceeding has been instituted against one of the plaintiffs, William C. Corning, in Justice's Court based upon a violation of the Town Zoning Ordinance. Plaintiffs further allege that they have no place other than the trailer in which to live, that the house trailer is a movable vehicle and not a building within the meaning of the zoning ordinance, and that said ordinance is invalid and that the enforcement of the same as against the plaintiffs will result in irreparable injury.

Even though the town clerk and building inspector made the representations set forth in the complaint and the plaintiffs relied thereon, such words or acts on the part of the administrative officials of the town do not operate as an estoppel against the town so as to prevent it from enforcing the provisions of its zoning ordinance or justify the granting of a temporary injunction restraining such attempted enforcement. (Premium Bond Corp. v. City of Long Beach, 249 App. Div. 756; Matter of S. B. Garage Corp. v. Murdock, 185 Misc. 55, 60; Matter of Longo v. Eilers, 196 Misc. 909, 914.)

The right, if any, of the plaintiffs to injunctive relief must depend upon their establishing either that the zoning ordinance does not apply to the house trailer or that the ordinance is invalid.

The zoning ordinance provides in section 6 that "Every building used or designed to be used for residence purposes shall be built upon permanent foundation walls and shall occupy a minimum ground area size of 900 square feet for a structure of less than two stories in `A' Districts * * *." Plaintiffs concede that their trailer is located in an "A" District, that it is used for residential purposes, that it is less than two stories in height and that it contains less than 900 square feet. If this trailer is a building within the meaning of the ordinance, its use concededly constitutes a violation.

It is the contention of the plaintiffs that the trailer is not such a building. This presents the first question for determination.

The papers before the court do not indicate whether the trailer rests upon wheels, jacks, blocks, or some type of permanent foundation. The plaintiffs do however allege that sanitary facilities have been installed including a septic tank and well and that electricity has also been installed. It is apparent, therefore, that the trailer has been affixed to the land by such sanitary and electrical connections. The plaintiffs further say that they sold their house and bought the trailer and the lot upon which it stands for the purpose of their residence and that they now have no other place in which to live. It is therefore apparent that the plaintiffs intend to occupy this trailer and the lot on which it is located as a permanent residence.

Plaintiffs claim that the trailer is not a building because it is something mobile. Mobile it was when used upon the highway, but mobility ceased when it was removed from the highway, attached to the soil and occupied as living quarters. A metamorphosis has occurred; the mobile vehicle has become a fixed residence.

When traveling upon the highway it obviously was not subject to zoning regulations but that does not mean it may not become subject to such regulations when occupied as a residence at a fixed location. A hydro-aeroplane when flying through the air is not a vessel subject to admiralty jurisdiction but when floating upon navigable waters it becomes a vessel subject to such jurisdiction. (Matter of Reinhardt v. Newport F. S. Corp., 232 N.Y. 115.) Under our Tax Law a building or structure affixed to the land is taxable as real property. (Tax Law, § 2, subd. 6.) It has been held that a lunch wagon which had been moved intact upon a vacant lot and there placed upon a foundation and connected with power, gas and sewage facilities, was taxable as part of the real estate. (People ex rel. Herzog v. Miller, 170 Misc. 1063, affd. 258 App. Div. 724.) House trailers located in a camp, still resting on their wheels, with only temporary utility connections and owned by others than the owners of the land have been held not taxable as part of the real property. (Stewart v. Carrington, 119 N. Y. S. 2d 778.) But where they are affixed to the land by means of electric wires, water pipes or wooden supports and there is evidence that they are to be left permanently at the location they may be assessed and taxed as part of the real property (5 Opinion State Comptroller, File No. 3752, 1949, p. 158).

A house trailer occupied as living quarters and resting upon jacks has been held to be a building within the provisions of an accident insurance policy providing for double indemnity to one injured by the collapse of the walls or burning of a building. (Ætna Life Ins. Co. v. Aird, 108 F. 2d, 136, affg. 27 F.Supp. 141.) In this case the court said: "Streamlined, mounted on two wheels, and capable when connected with beast or vehicle having motive and tractor power, of swift and easy motion, though it was, it was not automotive, and it was not bought to be, nor was it, used, except incidentally, for locomotion. The only use made of its movability was to get it to the place where it was to be used, just as ready cut houses, if small enough, may be and sometimes are moved, and set up complete. * * * Thus, what had been built for a dwelling or place to live, movable from place to place, was at rest, and was being occupied as a dwelling, as completely as if, instead of a trailer, it were a ready cut or knocked-down house, transported to the field, either set up, or in units for setting up. As such, it was certainly a building, in the sense of a dwelling * * *. It was too, a building, in the generic sense of something built or constructed for use as a shelter or habitation for man or beast." In other cases construing the meaning of the word "building" it has been held that a movable sheep wagon was a building within the...