Diocese of Buffalo, N. Y. v. Buczkowski

• Citation: 446 N.Y.S.2d 1015,112 Misc.2d 336
• Parties: The DIOCESE OF BUFFALO, NEW YORK, Petitioner, The New York State Office of Mental Retardation and Developmental Disabilities, Intervening Petitioner, v. Helen A. BUCZKOWSKI, Albert A. Jarrett, Sr., Mary Pankow, Gerald P. Regan and Joseph J. Stefaniak, Constituting the Zoning Board of Appeals of the City of Buffalo, Respondents, Eileen DePaolo, Intervening Respondent.
• Decision Date: 29 January 1982
• Court: New York Supreme Court

Page 1015

446 N.Y.S.2d 1015

112 Misc.2d 336

The DIOCESE OF BUFFALO, NEW YORK, Petitioner The New York State Office of Mental Retardation and Developmental Disabilities, Intervening Petitioner, v. Helen A. BUCZKOWSKI, Albert A. Jarrett, Sr., Mary Pankow Gerald P. Regan and Joseph J. Stefaniak Constituting the Zoning Board of Appeals of the City of Buffalo, Respondents Eileen DePaolo, Intervening Respondent.

Supreme Court, Erie County.

Jan. 29, 1982.

Kennedy & Stoeckl, Buffalo, for petitioner; Kevin Kennedy, Buffalo, of counsel.

Robert Abrams, Atty. Gen., New York City, for intervening petitioner; James L. Kennedy, Buffalo, of counsel.

Joseph P. McNamara, Corp. Counsel for the City of Buffalo, Buffalo, for respondents; John J. Naples, Asst. Corp. Counsel, Buffalo, of counsel.

Albrecht, Maguire, Heffern & Gregg, P.C., Buffalo, for intervening respondent; Bruce Zeftel, Buffalo, of counsel.

MEMORANDUM

JOSEPH D. MINTZ, Justice.

Petitioner seeks an order pursuant to Article 78 overturning Respondents' denial of a use permit as applied for. Petitioner seeks to change the program of its building at 4 Vermont Street from one used as a residential care institution for predelinquent and delinquent young men age 16 to 21 to an intermediate care facility for the developmentally handicapped.

The building at 4 Vermont Street had been used for its prior purpose since 1940. From the time of its commencement until 1953, the building was in all manners in compliance with the Buffalo Zoning Ordinances. From 1953 to present, 4 Vermont Street has been zoned R3. Since 1953, the building was not in compliance with use ordinances, such use permitted in Zone R4, but not R3, nor has it been in compliance with the setback requirements for certain nonprofit institutions. Respondents found that the building had been operated as a permitted nonconforming use. There was no express finding that the nonconforming use was in any way discontinued, and the change to an Intermediate Care Facility was tested as a change of nonconforming use; thus, implicit in the Board's determination was a finding that the nonconforming use was not discontinued.

If the proposed change is to be tested as a change in nonconforming use alone, the use permit must be denied. Changes in nonconforming uses are governed by Section 18(2) of the Buffalo Zoning Ordinance, which provides in part:

Any land, premises, building or structure arranged or designed for or devoted to a nonconforming use, may be changed in use when changed to a more restrictive use classification, but where the nonconforming use of a building, structure, premises or land is hereafter changed to a more restrictive use classification it shall not thereafter be changed to a less restrictive use classification. For the purpose of this subdivision, a use shall be deemed changed to a more restrictive use classification if the new use be one that is permitted in a section of this chapter with a lower number than the section under which the former use was permitted.

Thus, a change in use from one nonprofit institution (permitted under R4) to another nonprofit institution, (also permitted in R4) is not a change to a "more restrictive use" but to an equally restrictive use. Changes to a more restrictive use do not include changes to an equally restrictive use pursuant to the interpretation of an identical Buffalo ordinance by the Court of Appeals in City of Buffalo v. Roadway Transit Co., 303 N.Y. 453, 104 N.E.2d 96 (1952). Petitioner argues that the proposed change involves the change from a use not permitted in any district to a use permitted in R4. It bases this argument on the failure of Buffalo Boys Town to comply with setback requirements, and a rather intricate argument that the proposed purpose does not require similar setback requirements. Although this may be the case, Ordinance Section 18(2) makes clear that a change in use must entail a change to a more restrictive use classification. Although the particular building when used as Boys Town might not be permitted in an R4 district, the use of a building as a Boys Town is permitted in R4. Thus, the use of the premises before was one permitted in R4 and the use proposed is permitted in R4. Such a change does not comply with Section 18(2) as a permissible change in use. As to the failure to comply with setback requirements, this may bear simply on the question of whether the nonconforming structure is permitted. As long as the structure is continuously nonconforming, it is permitted under Section 18(1).

Petitioner argues, however, that Section 18(2) may be inapplicable since the proposed change does not entail a "change in use." In this context, change in use is a term of art, and must be examined under applicable ordinances and judicial authority. If the proposed program does not involve a change in use, the nonconforming use may be continued under Section 18(1). In addition, Respondents' argument that the proposed change should properly have been brought before the Common Council under Section 15A(8), which requires Council approval for certain changes in use, would be ineffectual if there were no change in use.

The use classification for Buffalo Boys Town is found in Section 7(a)(3):

Nonprofit institutions for charitable, religious, cultural, or civic purposes, subject to that part of section 5(a)(8) regarding institutions primarily for contagious disease patients, mental patients, epileptics, drug or liquor addicts, insane or feebleminded, or for penal or correctional purposes; but not including the handling, repairing, processing, keeping or displaying or any merchandise or the rendering of merchandising services on the premises.

This use classification is the same one as that for the proposed use. In fact, all nonprofit institutions fall in the same use classification. However, this is not to say that a change from one type of nonprofit institution to another would not constitute a change in use. For example, the change of a building from one used for offices for a charitable organization to a city mission for derelicts, would certainly be a change of use although each use is of the same use classification. It is the particular use and not the general classification that governs. In determining if the proposed use entails a "change in use," each case must stand on its own facts. See, generally, Yokley, 4 Zoning Law and Practice, § 22-6 (4th Ed. 1979). In making this determination, the court is guided by two decisions: President & Trustees of Ossining v. Meredith, 190 Misc. 142, 73 N.Y.S.2d 897 (Spec. T. Westchester Co. 1947) and Rogers v. Association for the Help of Retarded Children, 308 N.Y. 126, 123 N.E.2d 806 (1954). In Rogers, the change from an institution for the care (including the schooling) of children suffering from cardiac disorders to a school for retarded children was deemed to be the continuation of the building's use as a school. In Meredith supra, the change from a lot for the storage of poles and cables to the storage of freight trucks and buses was considered a change in use. In oft-cited language, the court reasoned:

It seems, however, clear to me that the storage of a motor vehicle, i.e., a freight truck or a bus is a sufficiently different use from the storage of poles, cable and pipe to require an injunction against the defendants forbidding that use. It seems to me equally clear,...