Wunder v. Macomber

CourtUnited States State Supreme Court (New York)
Writing for the CourtCHARLES LAMBIASE
Citation34 Misc.2d 281,228 N.Y.S.2d 552
Decision Date03 May 1962
PartiesGeorge J. WUNDER and Evelyn Wunder, Petitioner, v. Allen MACOMBER, George B. Gardner, Harold F. Grunert, John A. Baker and Barnet Levy, constituting the Planning Board and Board of Appeals of the Town of Brighton, Monroe County, New York Respondents.

Page 552

228 N.Y.S.2d 552
34 Misc.2d 281
George J. WUNDER and Evelyn Wunder, Petitioner,
v.
Allen MACOMBER, George B. Gardner, Harold F. Grunert, John
A. Baker and Barnet Levy, constituting the
Planning Board and Board of Appeals of
the Town of Brighton, Monroe
County, New York Respondents.
Supreme Court, Monroe County.
May 3, 1962.

Page 553

[34 Misc.2d 282] Berger, Kennedy & Keigher, Rochester, John J. Keigher, Rochester, of counsel, for petitioners.

Harold S. Coyle, Albany, Raymond F. Allen, Rochester, of counsel, for respondents.

CHARLES LAMBIASE, Justice.

On November 2, 1961, following a public hearing had on July 11, 1961, respondent Board of Appeals denied petitioners' application of July 7, 1961 for a variance of the provisions of Article V of the Zoning Ordinance of the Town of Brighton, New York, entitled 'Provisions Applicable to Residential Districts', and particularly Sections 19 and 20, in effect on said dates as it applies to the premises of the petitioners located at 2171 West Henrietta Road, in the Town of Brighton, Monroe County, New York. Specifically, petitioners requested that a variance be granted so as to grant them permission to extend their established nonconforming restaurant use by enlarging the dining room capacity, as well as an addition to the kitchen facilities, together with enlarged parking facilities, all in accordance with the plans submitted with said application.

In this Article 78 (Civ.Prac.Act) proceeding petitioners ask 'that this Court review said decision and resolution of the Board of Appeals of the

Page 554

Town of Brighton herein and reverse and annul the same and that an Order be made, directing the granting of the application for the variance as sought and further directing the Town of Brighton to issue a building permit for the erection of the proposed enlargement of the premises owned by the petitioners, and should this Court deem it necessary, to take further testimony and evidence upon this matter pursuant to Section 267 of the Town Law of the State of New York as well as the applicable sections of the Civil Practice Act, together with such other and further relief as to this Court may deem just and proper.' (Petition)

Petitioners acquired on November 22, 1946 the subject property which is situate on the west side of West Henrietta Road, in the Town of Brighton, New York, having a frontage of approximately 436 feet and varying in depth from 365.11 feet to 188.62 feet, the total area being 2.5 acres. It comprises one entire block between Furlong Road to the south and Doncaster Road to the north. At the time of said acquisition, real property on the east and west sides of West Henrietta Road, to a depth of 150 feet, was zoned commercial. Thereafter, in 1948 and in 1949, a permit to erect a restaurant was issued by the Town of Brighton to the petitioners, and the real property was improved and a restaurant constructed. Since that time petitioners have continuously conducted such restaurant business on the premises.

On October 20th, 1955 the Zoning Ordinance of the Town of Brighton, New York, was amended by virtue of which property [34 Misc.2d 283] on the west side of West Henrietta Road in the area wherein petitioners' restaurant is located was changed from a Commercial Zoning Classification to a Class B Residential District Classification, a classification in which land used for commercial or restaurant purposes was not a permitted use. There is no doubt that at the time of said enactment petitioners' business had been and now is a legal nonconforming use. In fact, respondents concede this, and there is no question, therefore, before us as to the right of petitioners now to operate the restaurant and to use the present structure and facilities therefor.

Upon the enactment of the amendment in October, 1955, the remaining portion of petitioners' property within the 150-foot strip not then utilized by them for their restaurant business could not lawfully be used for such purpose without a variance, nor could their then existing structure be enlarged for such purpose without a variance. Zoning Ordinance, Town of Brighton, Article IV, Section 8, subdivision (a), in effect at all times from the time of the filing of the application for a variance herein provided and now provides: 'Any lawful non-conforming use may be continued only on the same premises and in the same structure or structures where such use existed at the time the use became a lawful nonconforming use.' (Effective Jan. 16, 1961). (Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39, 43, 172 N.Y.S.2d 129, 131, 149 N.E.2d,

Page 555

65, 66; Matter of Gerling v. Board of Zoning Appeals, 6 A.D.2d 247, 250, 176 N.Y.S.2d 871, 873).

Zoning Ordinance, Article IV, 'General Provisions Applicable in all Districts', Section 12 (Application to Existing Premises or Structures), at all times from the time of the filing of the application for a variance herein, provided, and now provides:

'Whenever the provisions of this Ordinance in their application to an existing structure or existing premises at the time it takes effect, are unfair or inequitable to the owner or occupant thereof, such person may make a special application to the Planning Board for the exemption of his premises or the structure from all or a portion of the provisions of this Ordinance. The Board, after hearing all parties interested, may in its discretion, alter or vary in whole or in part, the strict application of the provisions of this Ordinance as applied to the structure or premises of the applicant, giving due consideration to the general purposes and intent thereof, and the structures or premises of surrounding owners or occupants. Such determination may be reviewed by the Town Board on the motion of any owner or occupant aggrieved thereby.'

(Town Law, § 267, subd. 5 [both]). By Section 50 of Article X of said Zoning [34 Misc.2d 284] Ordinance, 'The Planning Board and the members thereof are hereby vested with the powers and duties of the Board of Appeals as set forth in Chapter 634 of the Laws of 1932, Article 16, Section 267.'

The plans indicate that petitioners desire to change their existing restaurant structure by changing the entrance way and design of the adjacent windows, by modifying the roof and window design of the one-stroy northerly extension, by constructing a new southerly extension to match the one on the north, and by enlarging the structure in the rear.

An examination of the record and of the exhibits discloses that the property of petitioners lying to the south of the restaurant structure is vacant, as is their property to the north of said structure running to Doncaster Road. Part of petitioners' property has been blacktopped, and concededly has been used for the parking of automobiles incidental to the conduct of the restaurant business. However, up to the time of the application herein, all of petitioners' property to the north of the restaurant structure had not been used for the parking of automobiles or for any other use or uses incidental to the restaurant business. In fact, most of it had not been thus used. Petitioners claim, however, that from time to time prior to the date of the application for the variance, automobiles had been parked and at the time of said application were being parked on a grassy area, at least on a part thereof, to the...

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8 practice notes
  • Stein v. Board of Appeals of Town of Islip
    • United States
    • New York Supreme Court Appellate Division
    • March 19, 1984
    ...decision with the aid of new evidence which it had no right to consider under the circumstances presented (Matter of Wunder v. Macomber, 34 Misc.2d 281, 289-290, 228 N.Y.S.2d 552; Fulton v. Board of Appeals of Town of Oyster Bay, 152 N.Y.S.2d 974; Humble Oil & Refining Co. v. Board of Alder......
  • Holt-Lock, Inc. v. Zoning and Planning Commission of Town of Granby, HORT-LOC
    • United States
    • Supreme Court of Connecticut
    • May 11, 1971
    ...the facts upon which the board is asked to act. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149; Wunder v. Macomber, 34 Misc.2d 281, 290, 228 N.Y.S.2d 552; 2 Rathkopf, Law of Zoning and Planning,[161 Conn. 185] p. 44-2.' The correspondence which the plaintiff claims shou......
  • Norooz v. Inland Wetlands Agency of Town of Woodbury, No. 10148
    • United States
    • Appellate Court of Connecticut
    • February 4, 1992
    ...is asked to act. Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916 [1967]; Wunder v. Macomber, 34 Misc.2d 281, 290, 228 N.Y.S.2d 552 [1962]; 2 Rathkopf, Law of Zoning & Planning (3d Ed.), p. 44-2.' Wasicki v. Zoning Board, 163 Conn. 166, 172-73, 302 ......
  • 89JPS, LLC v. Joint Vill. of Lake Placid, No. 0029–11.
    • United States
    • United States State Supreme Court (New York)
    • June 25, 2012
    ...decision with the aid of new evidence which it had no right to consider under the circumstances presented ( Matter of Wunder v. Macomber, 34 Misc.2d 281, 289–290, 228 N.Y.S.2d 552;Fulton v. Board of Appeals of Town of Oyster Bay, 152 N.Y.S.2d 974;Humble Oil & Refining Co. v. Board of Alderm......
  • Request a trial to view additional results
8 cases
  • Stein v. Board of Appeals of Town of Islip
    • United States
    • New York Supreme Court Appellate Division
    • March 19, 1984
    ...decision with the aid of new evidence which it had no right to consider under the circumstances presented (Matter of Wunder v. Macomber, 34 Misc.2d 281, 289-290, 228 N.Y.S.2d 552; Fulton v. Board of Appeals of Town of Oyster Bay, 152 N.Y.S.2d 974; Humble Oil & Refining Co. v. Board of Alder......
  • Holt-Lock, Inc. v. Zoning and Planning Commission of Town of Granby, HORT-LOC
    • United States
    • Supreme Court of Connecticut
    • May 11, 1971
    ...the facts upon which the board is asked to act. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149; Wunder v. Macomber, 34 Misc.2d 281, 290, 228 N.Y.S.2d 552; 2 Rathkopf, Law of Zoning and Planning,[161 Conn. 185] p. 44-2.' The correspondence which the plaintiff claims shou......
  • Norooz v. Inland Wetlands Agency of Town of Woodbury, No. 10148
    • United States
    • Appellate Court of Connecticut
    • February 4, 1992
    ...is asked to act. Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916 [1967]; Wunder v. Macomber, 34 Misc.2d 281, 290, 228 N.Y.S.2d 552 [1962]; 2 Rathkopf, Law of Zoning & Planning (3d Ed.), p. 44-2.' Wasicki v. Zoning Board, 163 Conn. 166, 172-73, 302 ......
  • 89JPS, LLC v. Joint Vill. of Lake Placid, No. 0029–11.
    • United States
    • United States State Supreme Court (New York)
    • June 25, 2012
    ...decision with the aid of new evidence which it had no right to consider under the circumstances presented ( Matter of Wunder v. Macomber, 34 Misc.2d 281, 289–290, 228 N.Y.S.2d 552;Fulton v. Board of Appeals of Town of Oyster Bay, 152 N.Y.S.2d 974;Humble Oil & Refining Co. v. Board of Alderm......
  • Request a trial to view additional results

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