Khare v. Incorporated Village of Massapequa Park

• Decision Date: 09 February 1970
• Citation: 62 Misc.2d 68,307 N.Y.S.2d 996
• Parties: Hebert A. KHARE and Lydia A. Khare, Plaintiffs, v. INCORPORATED VILLAGE OF MASSAPEQUA PARK, Defendant.
• Court: New York Supreme Court

Page 996

307 N.Y.S.2d 996

62 Misc.2d 68

Hebert A. KHARE and Lydia A. Khare, Plaintiffs, v. INCORPORATED VILLAGE OF MASSAPEQUA PARK, Defendant.

Supreme Court, Special Term, Nassau County, Part III.

Feb. 9, 1970.

Russ, Weyl & Levitt, Massapequa, for plaintiffs.

Murray Pudalov, Village Atty., Massapequa Park, for defendant.

BERNARD S. MEYER, Justice.

Plaintiffs in this declaratory judgment action own five contiguous 20 foot by 100 foot lots fronting on the north side of Jackson Avenue in Massapequa Park and known as lots 4660 to 4664 inclusive. Lots 4660, 4661 and 4662 were acquired by them on November 28, 1950 and were then improved by a one family dwelling. Lots 4663 and 4664 which are unimproved, were acquired by plaintiffs on March 5, 1952 from one Yeatman, who had held them since June 12, 1935. The lots are and since June 29, 1937 have been located in a Residential A District. Prior to June 29, 1937 the Zoning Ordinance required width of 40 feet and area of 4,000 square feet. On June 29, 1937, those requirements were increased to 60 feet and 6,000 square feet respectively, but an exception was provided for a lot with an average width of not less than forty feet 'in separate ownership at the time of the passage of this ordinance.' On January 26, 1959 the exception was repealed, but the ordinance still authorizes the Board of Appeals to grant a special exception where a 'parcel was separately owned on June 29, 1937 and is of such restricted area or exceptional topography that it cannot be appropriately improved' without modification of the yard, open space, lot area or lot width regulations, Ordinance § 19--10(c)(2). Plaintiffs have never owned any other property contiguous to the five lots referred to above.

Plaintiffs have never applied for a building permit for lots 4663 and 4664, nor have they sought a variance or special exception. They ask judgment declaring that as a matter of right they are entitled to erect a one-family dwelling on lots 4663 and 4664 and maintain the existing dwelling on the other three lots, or in the alternative that the ordinance as applied to their property is unconstitutional. The Village has set up as an affirmative defense plaintiffs' failure to exhaust administrative remedies, but the Court considers that defense precluded by the decision of the Appellate Division in Carnat Realty Inc. v. Town of Babylon, 33 A.D.2d 563(4), 306 N.Y.S.2d 402 and it is, therefore, dismissed.

The claim that plaintiffs are entitled as of right to a building permit for the 40 foot parcel rests upon (1) Matter of Mandalay Construction, Inc. v. Eccleston, 9 A.D.2d 918 ,195 N.Y.S.2d 84, and (2) the absence from the Zoning Ordinance of any merger provision. As this court has had prior occasion to note, the Mandalay Construction case did not involve a substandard parcel 'held in common ownership with sufficient adjoining land to meet the requirements of the ordinance. Constitutional rights are not infringed by discrimination between owners who have adjoining land and those who do not,' Matter of Fina Homes v. Beckel, 24 Misc.2d 823, 825--826, 204 N.Y.S2d 69, 73. Essentially, the Mandalay case is concerned with the law of nonconforming uses, Matter of Bexson v. Board of Zoning & Appeals, 28 A.D.2d 848, 281 N.Y.S.2d 569, affd. 21 N.Y.2d 961, 289 N.Y.S.2d 990, 237 N.E.2d 239. It is not helpful to plaintiffs, therefore, unless there is warrant for disregarding plaintiffs' common ownership of the 40 foot parcel and the contiguous 60 foot property.

Were there a merger clause in the ordinance or had it contained and continued an exception for substandard plots not in common ownership with contiguous land After the passage of the ordinance, plaintiffs clearly would have no right to a permit for the substandard portion, Matter of Vollet v. Schoepflin, 28 A.D.2d 706, 280 N.Y.S.2d 950 Matter of Faranda v. Schoepflin, 21 A.D.2d 801, 250 N.Y.S.2d 928; Matter of Fina Homes, Inc. v. Young, 14 Misc.2d 576, 177 N.Y.S. 535, affd. 7 A.D.2d 864, 182 N.Y.S.2d 300, affd. 7 N.Y.2d 845, 196 N.Y.S.2d 985, 164 N.E.2d 860; Matter of Stenzler v. Commerdinger, 50 Misc.2d 235, 269 N.Y.S.2d 865; Matter of Bonan Realty Corp. v. Young, 16 Misc.2d 119, 182 N.Y.S.2d 132; Matter of Cabral v. Young, 14 Misc.2d 550, 177 N.Y.S.2d 548. Here, however, the ordinance contained an exception for 4,000 square foot parcels in separate ownership On June 29, 1937 and, therefore, lots 4663 and 4664 constituted a buildable parcel as a matter of right at least until repeal of that exception on January 26, 1959, Matter of Soros v. Board of Appeals, 50 Misc.2d 205, 269 N.Y.S.2d 796, affd. 27 A.D.2d 705, 277 N.Y.S.2d 821; Matter of Feldman v. Commerdinger, 26 Misc.2d 221, 213 N.Y.S.2d 484; Matter of Bressler v. Williams, N.Y.L.J. 8/22/66, p. 9, col. 5. Plaintiffs argue that repeal of the exception does not terminate their right to build upon those lots; that only a specific merger clause can have that effect. There are, however, a number of fallacies in that argument. First, the Feldman and Soros cases, on which plaintiffs rely, do not support their argument. Those cases construed the language of specific exceptions; here the exception has been entirely deleted. Secondly, it is hornbook law that there is no vested right in the continuation of a particular provision of the zoning law, Cord Meyer Development Co. v. Bell Bay Drugs, 20 N.Y.2d 211, 282 N.Y.S.2d 259, 229 N.E.2d 44; Matter of Atlas v. Dick, 275 App.Div. 670, 86 N.Y.S.2d 231, affd. 299 N.Y. 654, 87 N.E.2d 55, and the reversal of the Special Term decision (39 Misc.2d 400, 241 N.Y.S.2d 138) in Matter of Faranda v. Schoepflin, Supra, as well as the affirmance by the Court of Appeals in Matter of Fina Homes v. Young, Supra, over the dissent in the Appellate Division, together establish that the rule is not different though the conforming portion of the commonly owned property has been built on and the substandard portion has not. Of course, the rule would be different if substantial investment had been made in building upon lots 4663 and 4664 prior to January 26, 1959, but such is not the case. Thirdly, the question is, in final analysis, one of legislative intent, in which the absence of a merger clause is but one factor to be considered. Overbearing factors here are (1) the prior existence and 1959 repeal of a matter of right exception which proscribed merger of properties separately owned on June 29, 1937, (2) the continuation in § 19--10(c)(2) of the more limited special exception privilege for properties separately owned on June 29 ,1937, (3) the statement in § 19--60(1)(a) of the 6,000 square foot area requirement in Residential A Districts, its restatement in § 19--61(1) and the reiteration in § 19--61(2) with respect to such Districts that 'No building permit shall be issued and no building shall be erected on a plot of less than six thousand (6,000) square feet as set forth herein, nor when the issuance of the same shall leave remaining a plot immediately adjacent less in size than required by this...