278 A.D. 974 | N.Y. App. Div. | 1951
— In a proceeding brought by petitioner under article 78 of the Civil Practice Act for an order to compel respondent to issue a permit for alterations to a building owned by petitioner in the city of Yonkers, petitioner appeals from a final order of the Supreme Court denying its application and dismissing its petition on the merits. Issuance of the permit requested was refused by respondent on the ground that the proposed use of the building, as altered, would be in violation of the Zoning Ordinance of the City of Yonkers. At the time the Zoning Ordinance was enacted, appellant’s property was part of a much larger tract owned by appellant’s predecessor in title and used as a nursery, a permitted principal use of such property under said ordinance. In addition to the principal uses which were permitted in the district in which the property was zoned, the ordinance also permitted accessory uses customarily incident thereto. The building in question was then used for storage, office, and other purposes on behalf of a retail florist business, which maintained several stores in New York City and which were operated by or through the corporation which owned the property and operated the nursery. Appellant contended that such use established a right to a nonconforming use of the premises, of which the proposed use, for storage of materials and equipment and for office space, by appellant’s tenant, a roofing contractor, would be a continuance. Appellant further contended that respondent and the City of Yonkers were estopped from denying its alleged right to such a nonconforming use by reason of an adjudication made in the Court of Special Sessions of the City of Yonkers in a criminal proceeding brought against appellant for violation of the Zoning Ordinance and by reason of their failure to object previously to similar use of other portions of appellant’s premises. Final order