Eaton v. Sweeny

• Decision Date: 15 July 1931
• Citation: 257 N.Y. 176,177 N.E. 412
• Parties: EATON v. SWEENY, Commissioner of Public Safety.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 176

177 N.E. 412

EATON

v.SWEENY, Commissioner of Public Safety.

Court of Appeals of New York.

July 15, 1931.

Proceedings by Charles O. Eaton for a mandamus order against Edward C. Sweeny, as Commissioner of Public Safety of the City of Saratoga Springs. From a judgment of the Appellate Division (232 App. Div. 459, 251 N. Y. S. 246), affirming an order of Special Term, which denied a motion for peremptory mandamus requiring defendant to issue a permit for a business building, petitioner appeals.

Order of Appellate Division at Trial Term reversed, and proceeding remitted to Supreme Court, with directions.

Appeal from Supreme Court, Appellate Division, Third Department.

David W. Burke and William E. Bennett, both of Saratoga Springs, and Stephen H. Keating, of New York City, for appellant.

John A. Slade, of Saratoga Springs, for respondent.

Spencer B. Eddy, of Saratoga Springs, for the Saratoga Springs Commission, amicus curiae.

CRANE, J.

Broadway, in the city of Saratoga Springs, N. Y., runs north and south, and is the main street of the city. A zoning ordinance has divided it into four districts which, for the purposes of this case, may be referred to as zone A, a residence district for provate dwellings; zone B, for apartment houses; zone C, for hotels, boarding houses, or sanitariums; and zone D, unrestricted, a business district.

Zone D is north of Congress street, on the northwest corner of which is the Grand Union Hotel. South of Congress street is the C district. The relator, Charles O. Eaton, owns property on the block between Congress and William streets running back from Broadway to Hamilton street on the west. The property is now vacant, and he desires to use it for a lunch wagon or restaurant. He applied to the Supreme Court for a mandamus to compel the commissioner of public safety to issue to him a permit for such use. His prayer was for either a peremptory or alternative order. His previous application to the commissioner was denied.

Section 6 of the ordinance reads as follows: ‘Section 6. Amendments, Alterations and Changes. The City Council may from time to time, on petition, after public notice and hearing, amend or change the regulations and Zones herein established. Whenever the owners of 50 per cent or more of the frontage on any block front and the block front facing it, shall present a petition duly signed, to the City Council requesting an amendment, alteration or repeal of the regulations prescribed for such block front. It shall be the duty of the Council to vote upon said petition within 90 days after the filing of the same by the petitioners, with the Council. If, however, a protest against such amendment, alteration or repeal is presented signed by the owners of 20 per cent or more of the frontage in the rear or directly opposite the frontage proposed to be altered, such amendment, alteration or repeal shall not be passed except by the four-fifth vote of the Council.’

No other provision is made in the ordinance for the variation of a use or of the regulations, and no nethod for review of the action of the city council or of the commissioner of public safety is prescribed. Section 8 permits the continuation of nonconforming uses in the following words: ‘Section 8. A nonconforming use existing or authorized by a lease in writing duly executed at the time of the passage of this ordinance may be continued. But such non-conforming use shall not be extended, nor shall a structure designed, arranged or intended for a non-conforming use in whole or in a part be enlarged except for a conforming use.’

The relator recognizes that all zoning ordinances inflict a burden or irritating restriction upon some property owner, but he claims that in his case zone C prevents him from making any profitable use of his property, and deprives him of it without due process of law. He cannot build a sanitarium or a hotel, and the location is unsuited for a private dwelling or a boarding house. Business is the only profitable use to which the property can be turned. The situation gives substance to his claim. For twenty-five years the lot was used for business purposes. The Hudson Valley Railway Companyand the Delaware & Hudson Company used it as a freight and passenger terminal. Sheds and tracks were on the petitioner's premises when the zoning ordinance was enacted. In 1922 and 1923, a gasoline filling station and a parking stand for automobiles occupied portions of the property. Since the enactment of the ordinance in 1924, the lot has been used at various times for the sale of used automobiles and as a parking space for automobiles for hire, and as a taxi stand.

On the west side of Broadway, between William and Congress streets, there is a vacant lot, novelty store and refreshment business, a residence, the ground floor of which is used as an institution giving massage and irrigation treatments, a summer hotel, barber shop, petitioner's premises, and a trolley station containing a restaurant, cigar and...