United Citizens of Mount Vernon v. Zoning Bd. of Appeals of City of Mount Vernon

• Decision Date: 23 July 1981
• Parties: UNITED CITIZENS OF MOUNT VERNON and Harold Airall, James Guaranieri, Gerald McKenna, Gladys Tishinat and David Turner, Petitioners, v. ZONING BOARD OF APPEALS OF the CITY OF MOUNT VERNON, New York and Ernest B. Davis, Commissioner, Department of Buildings, City of Mount Vernon, and Clinton Brown, Deputy Commissioner, Department of Buildings, City of Mount Vernon, Respondents, and the Wartburg Orphan Farm School of the Evangelical Lutheran Church, Intervenor-Respondent.
• Court: New York Supreme Court

Page 626

441 N.Y.S.2d 626

109 Misc.2d 1080

UNITED CITIZENS OF MOUNT VERNON and Harold Airall, James

Guaranieri, Gerald McKenna, Gladys Tishinat and David Turner, Petitioners, v. ZONING BOARD OF APPEALS OF the CITY OF MOUNT VERNON, New

York and Ernest B. Davis, Commissioner, Department of

Buildings, City of Mount Vernon, and Clinton Brown, Deputy

Commissioner, Department of Buildings, City of Mount Vernon,

Respondents,

and the Wartburg Orphan Farm School of the Evangelical

Lutheran Church, Intervenor-Respondent.

Supreme Court, Westchester County.

July 23, 1981.

Plunkett & Jaffe, White Plains, for petitioners.

Joseph S. Ragno, Corp. Counsel, Mount Vernon, for City of Mount Vernon; Kevin D. Crozier, Yonkers, of counsel.

Posner & Posner, Mount Vernon, for respondents; William P. Sirignano, Mount Vernon, of counsel.

DECISION & ORDER

ANTHONY J. FERRARO, Justice.

Petitioners maintain this proceeding pursuant to Article 78 CPLR for an order of this Court reviewing, reversing and annulling a determination of the Respondent Zoning Board of Appeals of the City of Mount Vernon which granted a variance to Intervenor-Respondents.

Intervenor-Respondents sought leave to construct 30 single-story attached units on 6 acres of open land remaining on their parcel of 29.5 acres in order to provide housing for the elderly.

The parcel in question was purchased in 1865 to establish a home for orphans. An orphan farm school was built in 1866. In 1869 a charitable corporation was formed with power to purchase and hold real estate and to "establish, maintain, control, govern and manage any orphan house, farm school, industrial school, hospital, asylum, retreat or other institution necessary and proper for the carrying out of the general object of the said corporation". In 1897 a home for the aged was constructed. Thereafter, Intervenor-Respondents, hereinafter referred to as "Wartburg", established a three-level concept of elderly care consisting of residences providing minimal care, intermediate facilities providing detailed care and a nursing home to provide intensive care. The proposed construction contemplates a fourth level of elderly care in single-family attached units. In each unit the wall behind the bed will be fitted with life-saving equipment and the wall opposite the bed will be equipped with a closed-circuit television camera. This arrangement will allow the administration of all needed care short of hospitalization without moving the patient and enable a healthy spouse to live with a sick partner. The attachment of the units enables the residents to be close to their neighbors yet independent and facilitates the rendering of care.

Petitioners contend on this application (1) that the Respondent Zoning Board had no jurisdiction to grant a use variance allowing attached and semi-detached residential units because semi-detached units are prohibited in any zoning district (2) that the proposed construction constitutes a "large scale planned unit development" which is within the exclusive jurisdiction of the City Council (3) that Wartburg failed to follow lawful procedure in processing its application (4) that Respondent Zoning Board failed to prepare its own Findings of Fact and Conclusions of Law (5) that the Findings and Conclusions provide no basis for the relief granted and (6) that Respondent Zoning Board failed to comply with the requirements of the Environmental Conservation Law of the State of New York.

Although the parcel in question is located in a one-family residential zone, it had been used for the purpose of providing housing and schooling for orphans and housing and health care for the elderly prior to the enactment of the zoning ordinance. In furtherance of its corporate purposes, Wartburg has already constructed multi-story buildings upon its property consisting of an orphanage, a home for the aged, cottages for the housing of orphans, a school, auditorium, administration building and a nursing home.

The rule is fundamental that non-conforming uses in existence when a zoning ordinance is enacted are constitutionally protected and must be permitted to continue notwithstanding any contrary provisions of a subsequently enacted zoning ordinance. People v. Miller, 304 N.Y. 105, 106 N.E.2d 34.

Likewise, and equally fundamental is the rule that non-conforming uses may not be extended or expanded and once abandoned are forever forfeited. Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160, 331 N.Y.S.2d 397, 282 N.E.2d 299.

However, if the extension or expansion of the non-conforming use forms an integral part of the original contemplation for the entire parcel, then the right to such extension or expansion becomes vested from the inception and is likewise constitutionally protected. In the case of Syracuse Aggregate Corp. v. Weise et al., 72 A.D.2d 254, 424 N.Y.S.2d 556 aff'd 51 N.Y.2d 278, 279, 434 N.Y.S.2d 150, 414 N.E.2d 651, the Court allowed the owner to excavate his entire 25 acre parcel although only 5 acres had been excavated prior to passage of the prohibitory ordinance. The Court stated that the test for determining whether a non-conforming use may be extended depended on:

"Whether the nature of the incipient non-conforming use in the light of the character and adaptability to such use of the entire parcel manifestly implies an appropriation of the entirety to such use prior to the adoption of the restrictive ordinance.

Special Term erred in its application of the rule that non-conforming uses may not be expanded, implementing a blanket rule that no additional land, beyond that utilized as of the time the ordinance became effective, may ever be entitled." 72 A.D.2d pg. 257, 424 N.Y.S.2d 556.

The Court of Appeals in affirming, by Jasen, J., supra, concluded that where quarrying operations are conducted on a distinct parcel and the activities manifest a clear intent to appropriate the entire parcel for quarrying, the extent of protection afforded by the non-conforming use will extend to the entire parcel even though extensive excavation was limited to a small portion of the parcel.

Stating it in another way, Mr. Justice Gabrielli held in Matter of Dolomite Products v. Kipers, 39 Misc.2d 627, 241 N.Y.S.2d 748, that a non-conforming use can be extended:

"provided it can be shown that (1) it was an expansion of a non-conforming use on land previously owned by the petitioner ... and that (2) it has always been the intent of the petitioner to develop and use the entire lands owned by it, for the questioned purposes and that this was or should have been known to all involved".

Although not every expansion or extension of certain operations will be permitted, the view has been taken that it is not essential that a nonconforming use exercised at the time a zoning ordinance is enacted should embrace an entire tract in order to entitle an owner to subsequently employ it all for the use. To so hold would deprive owners of the use of their property as effectively as if an ordinance was so drawn as to be completely prohibitive of all use. 8 McQuillin Municipal Corporations, (3d ed.) § 25.208 p. 521. DeFelice v. Zoning Board of Appeals, 130 Conn. 156 Village of Ossining v. Meredith, 190 Misc. 142 "

This principle authorizing expansion of non-conforming uses has been enunciated in the following reported cases among others: Town of Somers v. Camarco, 308 N.Y. 537, 127 N.E.2d 327, where excavation of sand pit on two tracts was authorized as a constitutionally vested right before enactment of the ordinance; People v. Perkins, 282 N.Y. 329, 26 N.E.2d 278, wherein a conviction for violation of a zoning ordinance because defendant enlarged a business non-conforming use in a residential zone, was reversed; Matter of Fairmeadows Mobile Village v. Shaw, 16 A.D.2d 137, 226 N.Y.S.2d 565, involving an expansion of a trailer park to other parts of petitioner's lands; Telimar Homes v. Miller, 14 A.D.2d 586, 218 N.Y.S.2d 175, allowing continued development on quarter acre parcels after zoning ordinance was amended to require half-acre parcels; Empire City v. Yonkers, 132 Misc. 816, 230 N.Y.S.2d 457, wherein Court upheld the right to construct non-conforming barns in a residential area in conjunction with the continued and expanded operation of a race track.

Additionally, the principle has been adopted in...