Harbison v. City of Buffalo

• Citation: 4 N.Y.2d 553,152 N.E.2d 42,176 N.Y.S.2d 598
• Parties: , 152 N.E.2d 42 In the Matter of Andrew HARBISON, Sr., et al., Respondents, v. CITY OF BUFFALO et al., Appellants.
• Decision Date: 25 June 1958
• Court: New York Court of Appeals Court of Appeals

Page 598

176 N.Y.S.2d 598

4 N.Y.2d 553, 152 N.E.2d 42

In the Matter of Andrew HARBISON, Sr., et al., Respondents, v. CITY OF BUFFALO et al., Appellants.

Court of Appeals of New York.

June 25, 1958.

Anthony Manguso, Corp. Counsel, Buffalo (William J. Ostrowski, Buffalo, of counsel), for appellants.

James J. White, Buffalo, for respondents.

FROESSEL, Judge.

Petitioner Andrew Harbison, Sr., purchased certain real property located at 35 Cumberland Avenue in the city of Buffalo on January 5, 1924. Shortly thereafter he erected a 30- by 40-foot frame building thereon, and commenced operating a cooperage business, which, with his son, he has continued to date. The building has not been enlarged, and the volume of petitioners' business is stated to be the same now as then. The only difference is that, whereas petitioners formerly dealt mainly with wooden barrels, they now recondition, clean and paint 'used' steel drums or barrels. No issue of that difference is made here. These drums, or barrels, are stacked to a height of about 10 feet in the yard, and on an average day about 600 or 700 barrels are stored there.

When petitioner Andrew Harbison, Sr., established his business in 1924, the street upon which it was located was an unpaved extension of an existing street, the city operated a dump in the area, and there was a glue factory in the vicinity. At the present time, the glue factory has gone, and there are residences adjoining both sides of petitioners' property and across the street. The change in the surrounding area is reflected by the fact that in 1924 the land was unzoned, but since 1926 (except for the period between 1949 and 1953, when it was zoned for business), the land has been zoned for residential use; and it is presently in an 'R3' dwelling district.

Thus it is clear that at the time of the enactment of the first zoning ordinance affecting the premises, petitioners had an existing nonconforming use, that is, the conduct of a cooperage business in a residential zone. In 1936, under an ordinance which included the operations of petitioners in a definition of 'junk dealers', petitioners applied for and received a license to carry on their business. Licenses were obtained by petitioners every year from 1936 through the fiscal year of 1956.

However, the ordinances of the City of Buffalo were amended, effective as of July 30, 1953, so as to state in chapter LXX ( § 18): '1. Continuing existing uses: Except as provided in this section, any nonforming use of any building, structure, land or premises may be continued. Provided, however, that on premises situate in any 'R' district each use which is not a conforming use in the 'R5' district and which falls into one of the categories hereinafter enumerated shall cease or shall be changed to a conforming use within 3 years from the effective date of this amended chapter. The requirements of this subdivision for the termination of non-conforming uses shall apply in each of the following cases: * * *. (d) Any junk yard'. (Defined in § 23, subd. 24.)

On November 27, 1956 the director of licenses of the City of Buffalo sent a letter to petitioners stating: 'At a meeting of the Common Council under date of November 13, 1956 * * * (it) evinced its intention not to amend to modify the provisions of Chapter 18, Subdivision I of Chapter LXX of the Ordinances relation to non-conforming uses by junk yards * * * in 'R' districts. * * * you are hereby notified to discontinue the operation of your junk yard * * * at once'. A subsequent application by petitioners for a wholesale junk license and one for a 'drum reconditioning license' were refused on the ground that 'said premises lie within an area zoned as 'R3' Dwelling District * * * and the operation of a junk yard and the outside storage of used materials is prohibited therein'. Petitioners then brought this article 78 proceeding in the nature of mandamus in which they sought an order directing the city to issue a wholesale junk license to them, and the lower courts sustained them.

On this appeal, the City of Buffalo argues (1) that petitioners did not have a lawful nonconforming use when the zoning ordinance was enacted in 1926, since at that time they had not complied with an ordinance enacted in 1892 requiring the licensing of wholesale junk dealers; (2) that petitioners are not entitled to the peremptory grant of a license since they have not enclosed their premises with a solid wood or sheet metal fence or masonry wall not less than 6 feet high, as required by section 194 of article XIII of chapter V of the ordinance, and (3) that the ordinance, held invalid by the courts below, is a valid exercise of the police power.

The first point need not detain us long. The ordinance of 1892, upon which the city relies, related to 'the business of purchasing or selling old silver, iron, brass, copper scraps or other secondhand or partially ruined or damaged materials, (or) carry(ing) on * * * a junk shop'. It is argued that this ordinance does not clearly encompass petitioners' business of repairing and reconditioning barrels. In any event, I might note that petitioners operated a licensed wholesale junk business from 1936 to 1956, and the city never raised the foregoing objection on any of the applications for renewal of the license. Hence this argument has no merit.

Nor does the second point appear to be a sound ground for refusal to issue a license here. If, as appears, petitioners have not complied with the letter of the ordinance since their property is enclosed by a picket fence rather than one of solid wood or metal, an order directing the issuance of a license could readily be conditioned upon compliance with such provisions inasmuch as petitioners are quite willing to comply with this requirement. It may be noted that this defense was not interposed until the close of the hearings.

In the major point involved on this appeal, the city argues that the ordinance requiring the termination of petitioners' nonconforming use of the premises as a junk yark within three years of the date of said ordinance is a valid exercise of its police power. Its claim is not based on the theory of nuisance (see People v. Miller, 304 N.Y. 105, 107, 106 N.E.2d 34, and cases there cited; Noel, Retroactive Zoning and Nuisances, 41 Col.L.Rev. 457), and indeed this record contains little evidence as to the manner of operation of petitioners' business and the nature of the surrounding neighborhood. Rather, in this case, the city bases its claim largely on out-of-State decisions which have sustained ordinances requiring the termination of nonconforming uses or structures after a period of permitted continuance, where such 'amortization' period was held reasonable.

When zoning ordinances are initially adopted to limit permissible uses of property, or when property is rezoned so as to prevent uses of property previously allowed, a degree of protection is constitutionally required to be given owners of property then using their premises in a manner forbidden by the ordinance. Thus we have held that, where substantial expenditures were made in the commencement of the erection of a building, a zoning ordinance may not deprive the owner of the 'vested right' to complete the structure (People ex rel. Ortenberg v. Bales, 250 N.Y. 598, 166 N.E. 339; see City of Buffalo v. Chadeayne, 134 N.Y. 163, 165, 31 N.E. 443). So, where the owner already has structures on the premises, he cannot be directed to cease using them (see 440 East 102nd St. Realty Corp. v. Murdock, 285 N.Y. 298, 304-305, 34 N.E.2d 329, 331), just as he has the right to continue a prior business carried on there (Town of Somers v. Camarco, 308 N.Y. 537, 127 N.E.2d 327; Crossroads Recreation v. Broz, 4 N.Y.2d 39, 172 N.Y.S.2d 129; People v. Miller, supra).

However, where the benefit to the public has been deemed of greater moment than the detriment to the property owner, we have sustained the prohibition of continuation of prior nonconforming uses. These cases involved the prior use of property for parking lots (People v. Wolfe, 272 N.Y. 608, 5 N.E.2d 355, motion for reargument denied 273 N.Y. 798, 6 N.E.2d 422; People v. Kesbec, Inc., 281 N.Y. 785, 24 N.E.2d 476, motion for reargument denied 282 N.Y. 676, 26 N.E.2d 808). We have also upheld the restriction of projected uses of the property where, at the time of passage of the ordinance, there had been no substantial investment in the nonconforming use (e. g., New York Trap Rock Corp. v. Town of Clarkstown, 3 N.Y.2d 844, 166 N.Y.S.2d 82; Rice v. Van Vranken, 255 N.Y. 541, 175 N.E. 304; Fox Lane Corp. v. Mann, 243 N.Y. 550, 154 N.E. 600). In these cases, there is no doubt that the property owners incurred a loss in the value of their property and otherwise as a result of the fact that they were unable to carry out their prospective uses; but we held that such a deprivation was not violative of the owners' constitutional rights. In People v. Miller, supra, 304 N.Y. at page 108, 106 N.E.2d at page 35, we explained these cases by stating that they involved situations in which the property owners would sustain only a 'relatively slight and insubstantial' loss.

It should be noted that even where the zoning authorities may not prohibit a prior nonconforming use, they may adopt regulations which restrict the right of the property owner to enlarge or extend the use or to rebuild or make alterations to the structures on the property (Koeber v. Bedell, 280 N.Y. 692, 21 N.E.2d 200; Cordes v. Moore, 308 N.Y. 761, 125 N.E.2d 112; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 28 N.E.2d 856; Town of Hempstead v. Goldblatt, 4 A.D.2d 970, 168 N.Y.S.2d 609, motion for leave to appeal denied 4 N.Y.2d 674, 171 N.Y.S.2d 1027; see Crossroads Recreation v. Broz, supra).

As these cases indicate, our approach to the problem of permissible restrictions on nonconforming uses has recognized that, while the benefit accruing to the public in...