One Pelham Road Co. v. Paduano

Appellate Division of the Supreme Court of New York

One Pelham Road Co. v. Paduano

123 A.D.2d 768, 507 N.Y.S.2d 242, 1986 N.Y. App. Div. LEXIS 60907

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

DecidedOctober 20, 1986

StatusPublished

Cited by2 cases

This text of 123 A.D.2d 768 (One Pelham Road Co. v. Paduano) 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

One Pelham Road Co. v. Paduano, 123 A.D.2d 768, 507 N.Y.S.2d 242, 1986 N.Y. App. Div. LEXIS 60907 (N.Y. Ct. App. 1986).

Pincite

Opinion

In a proceeding pursuant to CPLR article 78 to direct the issuance of a building permit to the petitioners and to enjoin the City of New Rochelle from amending its zoning ordinance until the permit is issued and the petitioners have acquired a vested right by way of a use nonconforming to any future amendment to the city zoning ordinance, the appeal is from a judgment of the Supreme Court, Westchester County (Jiudice, J.), dated June 4, 1985, which granted the petition.

Ordered that the judgment is modified, on the law, by deleting the provision thereof enjoining the City of New Rochelle from proceeding on the proposed zoning ordinance change. As so modified, the judgment is affirmed, without costs or disbursements.

The petitioners are the owners and leaseholders of property located within a CM-1 zone within the City of New Rochelle. A permitted use in a CM-1 district is an "Eating and Drinking Establishment excluding Fast Food Purveyors and Drive-In Restaurants.” The petitioners applied for a permit to build an outdoor restaurant on the site. The New Rochelle Bureau of Buildings denied the application on the ground that "[o]pen air dining-cafes are not allowed by right or by Special Permit in a CM-1 Zoned district”. We agree with Special Term that the determination of the bureau of buildings was erroneous and that the petitioners were entitled to the permit. Unlike the more restrictive C-3 zone, where the zoning ordinance specifically requires that restaurants be "fully enclosed”, there is no provision in the ordinance barring an open-air establishment in a CM-1 district.

However, the court erred when it enjoined the city from considering a proposal to rezone the property for residential use. At this juncture, it cannot be said that the City Council would have in fact approved the proposed amendment or that the rezoning would not be based upon legitimate zoning considerations. Moreover, it has not been shown, and cannot be shown, that the appellants unreasonably delayed action on the petitioners’ application, and consequently, the court’s reliance on Matter of Dubow v Ross (254 App Div 706) was misplaced. Brown, J. P., Weinstein, Lawrence and Kooper, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to direct the issuance of a building permit to the petitioners and to enjoin the City of New Rochelle from amending its zoning ordinance until the permit is issued and the petitioners have acquired a vested right by way of a use nonconforming to any future amendment to the city zoning ordinance, the appeal is from a judgment of the Supreme Court, Westchester County (Jiudice, J.), dated June 4, 1985, which granted the petition.

Ordered that the judgment is modified, on the law, by deleting the provision thereof enjoining the City of New Rochelle from proceeding on the proposed zoning ordinance change. As so modified, the judgment is affirmed, without costs or disbursements.

The petitioners are the owners and leaseholders of property located within a CM-1 zone within the City of New Rochelle. A permitted use in a CM-1 district is an "Eating and Drinking Establishment excluding Fast Food Purveyors and Drive-In Restaurants.” The petitioners applied for a permit to build an outdoor restaurant on the site. The New Rochelle Bureau of Buildings denied the application on the ground that "[o]pen air dining-cafes are not allowed by right or by Special Permit in a CM-1 Zoned district”. We agree with Special Term that the determination of the bureau of buildings was erroneous and that the petitioners were entitled to the permit. Unlike the more restrictive C-3 zone, where the zoning ordinance specifically requires that restaurants be "fully enclosed”, there is no provision in the ordinance barring an open-air establishment in a CM-1 district.

However, the court erred when it enjoined the city from considering a proposal to rezone the property for residential use. At this juncture, it cannot be said that the City Council would have in fact approved the proposed amendment or that the rezoning would not be based upon legitimate zoning considerations. Moreover, it has not been shown, and cannot be shown, that the appellants unreasonably delayed action on the petitioners’ application, and consequently, the court’s reliance on Matter of Dubow v Ross (254 App Div 706) was misplaced. Brown, J. P., Weinstein, Lawrence and Kooper, JJ., concur.

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Bluebook (online)

123 A.D.2d 768, 507 N.Y.S.2d 242, 1986 N.Y. App. Div. LEXIS 60907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/one-pelham-road-co-v-paduano-nyappdiv-1986.

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