Town of Onondaga v. Hubbell

Appellate Division of the Supreme Court of New York

Town of Onondaga v. Hubbell

9 A.D.2d 1024, 196 N.Y.S.2d 592, 1959 N.Y. App. Div. LEXIS 5459

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

DecidedDecember 23, 1959

StatusPublished

Cited by3 cases

This text of 9 A.D.2d 1024 (Town of Onondaga v. Hubbell) 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

Town of Onondaga v. Hubbell, 9 A.D.2d 1024, 196 N.Y.S.2d 592, 1959 N.Y. App. Div. LEXIS 5459 (N.Y. Ct. App. 1959).

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Opinion

Judgment affirmed, without costs of this appeal to any party. All concur, Halpern, J., in the following memorandum: While I join in affirming the judgment appealed from, I do so on a special ground which is wholly different from the reasons given by the trial court in its opinion. I believe that the change from a restaurant selling only food and nonalcoholic beverages to a restaurant selling beer, was a permissible change of use under the zoning ordinance, since the change was from one nonconforming use to another nonconforming use within the same classification (in fact, within the same subdivision of the use classification). This was expressly authorized by paragraph 7 of the section of the ordinance dealing with nonconforming uses. However, as a procedural matter, the defendant should have applied for a certificate of occupancy for the changed use (Ordinance, p. 39). It is undisputed that no such certificate was obtained by the defendant. The defendant did not have the right to change the use of the premises by her unilateral action, without applying to the town authorities for a certificate permitting her to do so. Solely upon that ground, I would affirm the judgment. (Appeals from a judgment of Onondaga Special Term restraining defendant Hubbell from sale of beer in violation of town ordinance.) Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ. [19 Misc 2d 999].

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Judgment affirmed, without costs of this appeal to any party. All concur, Halpern, J., in the following memorandum: While I join in affirming the judgment appealed from, I do so on a special ground which is wholly different from the reasons given by the trial court in its opinion. I believe that the change from a restaurant selling only food and nonalcoholic beverages to a restaurant selling beer, was a permissible change of use under the zoning ordinance, since the change was from one nonconforming use to another nonconforming use within the same classification (in fact, within the same subdivision of the use classification). This was expressly authorized by paragraph 7 of the section of the ordinance dealing with nonconforming uses. However, as a procedural matter, the defendant should have applied for a certificate of occupancy for the changed use (Ordinance, p. 39). It is undisputed that no such certificate was obtained by the defendant. The defendant did not have the right to change the use of the premises by her unilateral action, without applying to the town authorities for a certificate permitting her to do so. Solely upon that ground, I would affirm the judgment. (Appeals from a judgment of Onondaga Special Term restraining defendant Hubbell from sale of beer in violation of town ordinance.) Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ. [19 Misc 2d 999].

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Bluebook (online)

9 A.D.2d 1024, 196 N.Y.S.2d 592, 1959 N.Y. App. Div. LEXIS 5459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-onondaga-v-hubbell-nyappdiv-1959.

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