D'Amico v. Felten

Appellate Division of the Supreme Court of New York

D'Amico v. Felten

122 A.D.2d 528, 504 N.Y.S.2d 911, 1986 N.Y. App. Div. LEXIS 59793

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 11, 1986

StatusPublished

This text of 122 A.D.2d 528 (D'Amico v. Felten) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

D'Amico v. Felten, 122 A.D.2d 528, 504 N.Y.S.2d 911, 1986 N.Y. App. Div. LEXIS 59793 (N.Y. Ct. App. 1986).

Pincite

Opinion

— Judgment unanimously affirmed, without costs. Memorandum: We cannot agree with Special Term that the Village Zoning Ordinance permitted the granting of the building permit to petitioner. Such an interpretation defeats the very purpose of the residential-1 zoning which is designed to be low density and the most restrictive use district within the village. Further, said interpretation would negate the area requirements of the Zoning Ordinance. We also disagree with Special Term’s conclusion that the conversion of this garage into two dwelling units did not violate Zoning Ordinance § 20.45. While the garage is a permitted accessory use in the R-l district, nevertheless it was a nonconforming use in that it failed to meet the rear- or side-lot regulations within an R-l district. As the granting of the building permit allowed the conversion of this nonconforming garage into a nonconforming dwelling, it violates Village of Lyons Zoning Ordinance § 20145 (B) (3d).

We agree, however, with Special Term’s holding that based on the compelling equities of this case, respondents are es-topped from enforcing the Zoning Ordinance (Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, affd 32 NY2d 796, [529]*529cert denied sub nom. Baum v Lefrak Forest Hills Corp., 414 US 1004; Reichenbach v Windward at Southampton, 80 Misc 2d 1031, 1040, affd 48 AD2d 909, lv dismissed 38 NY2d 912).

Further, the Village Board, rather than timely appealing the Building Inspector’s determination as required in the ordinance, directed the revocation of the permit, thus circumventing the statutorily mandated procedure. (Appeal from judgment of Supreme Court, Wayne County, Rosenbloom, J.— art 78.) Present — Dillon, P. J., Doerr, Pine, Lawton and Schnepp, JJ.

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— Judgment unanimously affirmed, without costs. Memorandum: We cannot agree with Special Term that the Village Zoning Ordinance permitted the granting of the building permit to petitioner. Such an interpretation defeats the very purpose of the residential-1 zoning which is designed to be low density and the most restrictive use district within the village. Further, said interpretation would negate the area requirements of the Zoning Ordinance. We also disagree with Special Term’s conclusion that the conversion of this garage into two dwelling units did not violate Zoning Ordinance § 20.45. While the garage is a permitted accessory use in the R-l district, nevertheless it was a nonconforming use in that it failed to meet the rear- or side-lot regulations within an R-l district. As the granting of the building permit allowed the conversion of this nonconforming garage into a nonconforming dwelling, it violates Village of Lyons Zoning Ordinance § 20145 (B) (3d).

We agree, however, with Special Term’s holding that based on the compelling equities of this case, respondents are es-topped from enforcing the Zoning Ordinance (Matter of Lefrak Forest Hills Corp. v Galvin, 40 AD2d 211, affd 32 NY2d 796, [529]*529cert denied sub nom. Baum v Lefrak Forest Hills Corp., 414 US 1004; Reichenbach v Windward at Southampton, 80 Misc 2d 1031, 1040, affd 48 AD2d 909, lv dismissed 38 NY2d 912).

Further, the Village Board, rather than timely appealing the Building Inspector’s determination as required in the ordinance, directed the revocation of the permit, thus circumventing the statutorily mandated procedure. (Appeal from judgment of Supreme Court, Wayne County, Rosenbloom, J.— art 78.) Present — Dillon, P. J., Doerr, Pine, Lawton and Schnepp, JJ.

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Bluebook (online)

122 A.D.2d 528, 504 N.Y.S.2d 911, 1986 N.Y. App. Div. LEXIS 59793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/damico-v-felten-nyappdiv-1986.

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