Smalls v. Board of Standards & Appeals

14 A.D.2d 548, 218 N.Y.S.2d 1005, 1961 N.Y. App. Div. LEXIS 9654

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1961
• Status: Published

Opinion

No opinion. Nolan, P. J., Pette and Brennan, JJ., concur; Kleinfeld and Christ, JJ., dissent and vote to reverse the order, to deny the motion to dismiss, and to grant the petition and to annul the board’s determination, with the following memorandum: In May, 1953, petitioner filed plans to convert her house from one-family to two-family occupancy; in Juno, 1953, these plans were approved. The house was then in a two-family house zone. Prior to September 17, 1953, almost all the alteration work was completed. On that date the city Zoning Resolution was changed to place petitioner’s house in a one-family house zone. On September 29, 1953, despite the zoning change on September 17, 1953, petitioner was granted a permit for two-family occupancy. In April, 1954, the permit was revoked. Upon petitioner’s failure to reconvert the house to one-family occupancy, she was convicted in October, 1955, of a violation of the Zoning Resolution. Nevertheless, she continued io maintain the building as a two-family house. On November 21, 1957, the Zoning Resolution was amended again so as to place petitioner’s house in a two-family house zone. On December 17, 1957, the Zoning Resolution was amended a third time, placing petitioner’s house back in a one-family zone. In May, 1958, petitioner filed a new alteration application. She was granted a permit for two-family occupancy on the ground that she had acquired a vested right to a nonconforming use during the period from November 21 to December 17, 1957, when the Zoning Resolution permitted such use. Thereafter, on the complaint of neighboring owners, the Board of Standards and Appeals revoked that permit. Petitioner thereupon instituted this proceeding to review and annul the board’s determination revoking her permit. Special Term sustained the determination and dismissed the petition. In our opinion, the Special Term erred, and the board's determination should be annulled. In view of the fact: (1) that two-family occupancy was permitted when the original plans were filed and approved and when alteration work was done; (2) that such work was done at considerable cost to petitioner; (3) that successive, confusing changes in zoning occurred in this area within relatively short periods of time; (4) that two-family occupancy between November 21, 1957 and December 17, 1957 was legal; and (5) that from 1953 to date the house has been continuously used and occupied as a two-family dwelling, we think petitioner has acquired a vested right to such nonconforming use, of which she may not now be deprived. [28 Mise 2d 147.]