Wunder v. Macomber
| Citation | 34 Misc.2d 281,228 N.Y.S.2d 552 |
| Parties | 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. |
| Decision Date | 03 May 1962 |
| Court | United States State Supreme Court (New York) |
Berger, Kennedy & Keigher, Rochester, John J. Keigher, Rochester, of counsel, for petitioners.
Harold S. Coyle, Albany, Raymond F. Allen, Rochester, of counsel, for respondents.
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 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 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 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:
(Town Law, § 267, subd. 5 [both]). By Section 50 of Article X of said Zoning 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 north of the restaurant structure.
In proceedings for a use variance, there are general principles which the courts have followed, and in Matter of Otto v. Steinhilber et al., 282 N.Y. 71, 76, 24 N.E.2d 851, 853, they are stated as follows:
'Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality.'
Concededly, this is the law.
Furthermore, under the zoning ordinance herein, the owner must make the same showing of deprivation of reasonable use to justify an extension of an established nonconforming use as he would to justify a variance for a new use. In considering an application for permission to tear down an existing gasoline station and to erect in its stead a modern and much larger establishment, the original structure being an established nonconforming use, the Court in Matter of Crossroads Recreation, Inc. v. Broz, 4 N.Y.2d 39, at page 43, 172 N.Y.S.2d 129, at page 131, 149 N.E.2d 65, at page 66, (supra) reiterated the principles of Otto v. Steinhilber (supra), and held that all three of the conditions as outlined in said case must be shown to obtain such an extension, and at page 42, 172 N.Y.S.2d at page 130, 149 N.E.2d at page 66 says:
(See, also, Matter of Gerling v. Board of Zoning Appeals, 6 A.D.2d 247, 176 N.Y.S.2d 871, supra [4th Dept.]).
At the hearing on the application for the variance, petitioners submitted evidence that they had paid $3500.00 for their entire property involved herein which was unimproved at...
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