132 Misc. 816 | N.Y. Sup. Ct. | 1928
The Empire City Racing Association is the owner of the premises in question, and has conducted and maintained thereon for twenty-eight years a race track where race meets are held twice a year. In November, 1927, three barns belonging to the petitioner were destroyed by fire, and the petitioner applied to the building inspector for a permit to erect two new barns in place thereof, not upon the same location, but within the boundary of the premises used as the track.
The application was first granted and, when work had proceeded to a considerable extent, the application was revoked. Petitioner seeks an order of mandamus to compel the issuance of the permit. The permit was revoked upon the ground that, apart from the frontage upon Central avenue and Yonkers avenue, the property has been placed in a residential zone and the erection of barns prohibited.
In view of the fact that at the time of the passage of the ordinance these premises were used as a race track, and the use has not been abandoned, the petitioner could not be denied the right of erecting on the premises buildings designed and used for the conduct of the business. If this property ceases to be used for race track purposes, it is in a residential zone, and none but residences may be erected thereon, but, until its present use is abandoned, buildings of the character in question may be erected within the confines of the property used for track purposes.
It follows that the order should be granted.