Western Stone Products Corp. v. Town Board

Appellate Division of the Supreme Court of New York

Western Stone Products Corp. v. Town Board

25 A.D.2d 493, 266 N.Y.S.2d 686, 1966 N.Y. App. Div. LEXIS 5139

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

DecidedJanuary 20, 1966

StatusPublished

Cited by3 cases

This text of 25 A.D.2d 493 (Western Stone Products Corp. v. Town Board) 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

Western Stone Products Corp. v. Town Board, 25 A.D.2d 493, 266 N.Y.S.2d 686, 1966 N.Y. App. Div. LEXIS 5139 (N.Y. Ct. App. 1966).

Pincite

Opinion

Judgment and order unanimously modified in accordance with memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: The Building Inspector of the Town of Lockport issued building and excavation permits which were revoked on the ground, among others, that the zoning ordinance prohibited the intended use of the area involved without a permit from the Board of Appeals. Plaintiff sought a declaration that the permits were valid; that the purported revocations of the permits by the Building Inspector and the Town Board were a nullity and that it had acquired a vested right to the use and buildings authorized by the permits. The complaint does not expressly seek a declaration that the zoning ordinance enacted in 1946 was invalid but plaintiff did mention the question in its cross motion for summary judgment. We conclude that Special Term correctly sustained the validity of the zoning ordinance and the revocation of the permits, issued in clear violation of such ordinance. It was error, however, to dismiss the complaint in this action for a declaratory judgment merely because plaintiff was not entitled to the declaration it sought. This is not a valid basis for dismissal of the complaint (Lanza v. Wagner, 11 N Y 2d 317, 334). Neither was it proper to dismiss on the ground that plaintiff was first required to exhaust the administrative remedy provided by the zoning ordinance. Insofar as the validity of the ordinance was attacked, the Board of Appeals had no power to make a determination on this issue (Anderson, Zoning Law and Practice in New York State, § 17.30; Matter of Cherry v. Brumbaugh, 255 App. Div. 880). Accordingly the order and judgment should be modified to the extent of directing judgment in favor of defendants declaring (1) that the ordinance was valid; (2). that the permits were properly revoked; and (3) that plaintiff had acquired no vested rights to use the property in violation of the ordinance. (Appeal from judgment and order of Niagara Special Term dismissing the complaint.)

Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ.

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Judgment and order unanimously modified in accordance with memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: The Building Inspector of the Town of Lockport issued building and excavation permits which were revoked on the ground, among others, that the zoning ordinance prohibited the intended use of the area involved without a permit from the Board of Appeals. Plaintiff sought a declaration that the permits were valid; that the purported revocations of the permits by the Building Inspector and the Town Board were a nullity and that it had acquired a vested right to the use and buildings authorized by the permits. The complaint does not expressly seek a declaration that the zoning ordinance enacted in 1946 was invalid but plaintiff did mention the question in its cross motion for summary judgment. We conclude that Special Term correctly sustained the validity of the zoning ordinance and the revocation of the permits, issued in clear violation of such ordinance. It was error, however, to dismiss the complaint in this action for a declaratory judgment merely because plaintiff was not entitled to the declaration it sought. This is not a valid basis for dismissal of the complaint (Lanza v. Wagner, 11 N Y 2d 317, 334). Neither was it proper to dismiss on the ground that plaintiff was first required to exhaust the administrative remedy provided by the zoning ordinance. Insofar as the validity of the ordinance was attacked, the Board of Appeals had no power to make a determination on this issue (Anderson, Zoning Law and Practice in New York State, § 17.30; Matter of Cherry v. Brumbaugh, 255 App. Div. 880). Accordingly the order and judgment should be modified to the extent of directing judgment in favor of defendants declaring (1) that the ordinance was valid; (2). that the permits were properly revoked; and (3) that plaintiff had acquired no vested rights to use the property in violation of the ordinance. (Appeal from judgment and order of Niagara Special Term dismissing the complaint.)

Present — Williams, P. J., Bastow, Goldman, Del Vecchio and Marsh, JJ.

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Bluebook (online)

25 A.D.2d 493, 266 N.Y.S.2d 686, 1966 N.Y. App. Div. LEXIS 5139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-stone-products-corp-v-town-board-nyappdiv-1966.

Opinion

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