Weinrib v. Weisler

33 A.D.2d 923, 307 N.Y.S.2d 603, 1970 N.Y. App. Div. LEXIS 5659

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1970
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR to compel the issuance of a building permit and for related relief, officials of the Incorporated Village of Lawrence appeal from a second supplementary judgment of the Supreme Court, Nassau County, entered August 11, 1969, which granted petitioner’s motion to add certain provisions to the supplementary judgment in his favor. 'Second supplementary judgment affirmed, with costs. The purpose of zoning is to regulate the use of land, irrespective of who may be the owner of the land (Bernstein v. Board of Appeals of Vil. of Matinecock, 60 Misc 2d 470; Matter of Feneck v. Murdock, 16 Misc 2d 789; 1 Rathkopf, Zoning & Planning, 3d ed., 1968 Cumulative Supp., pp. 5-6 [supplementing original p. 1-8]). In this ease the building permit, being a function of zoning, would also affect property use (Yahnel v. Board of Adjustment of Jamesburg, 76 N. J. Super, 546; 101 C.J.S., Zoning, § 242). Accordingly, the prohibition against the assignment of building permits, set forth in section 231.4 of the Building Code of the Incorporated Village of Lawrence, is unconstitutional, as it is an attempt by the village to control the ownership and transference of property, rather than its use. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.