49 Misc. 2d 432 | N.Y. Sup. Ct. | 1966
This is an article 78 CPLR proceeding in which petitioner seeks an order setting aside the revocation of a building permit or, in the alternative, directing the respond
Thereafter, and on November 9, 1965, the Building Inspector of the Town of Greenburgh wrote a letter to the previous owner of the property, in whose name the building permit had been issued. That letter in part stated that the building permit ‘1 is hereby revoked due to the fact that an amendment to the provisions of the zoning ordinance of the Town of Greenburgh adopted October 26, 1965, prohibits gasoline service station use in Designed Shopping District which is the current zoning category of said property.” It appears that the petitioner has in all respects complied with the provisions of the special permit heretofore issued as well as the zoning ordinance as it existed prior to the enactment of the amendment.
Section 264 of the Town Law provides that an amendment to the zoning ordinance shall take effect 10 days after the required publication and posting but that it shall take effect “ from the date of its service as against a person served personally with a copy thereof If the petitioner had been served with a copy of the ordinance or if it had been given actual notice of the enactment of the ordinance, prior to closing of title, petitioner could not claim that it was misled by failure of the town officials to advise it of the change in the zoning ordinance. However, such is not the case.
The court determines that by reason of the work undertaken by the petitioner and the obligations which it incurred as the result of the $66,615 construction contract entered into on November 1, 1965, in reliance upon the special permit and the building permit which was still valid on that date, it acquired a vested right to erect and operate a gasoline service station on the property (see People ex rel. Ortenberg v. Bales, 224 App. Div. 87, affd. 250 N. Y. 598; New York State Investing Co. v. Brady, 214 App. Div. 592; City of Little Falls v. Fisk, 24 N. Y. S. 2d 460, 472; Willerup v. Village of Hempstead, 120 Misc. 485; Village of Sands Point v. Sands Point Country Day School, 2 Misc 2d 885, affd. 2 A D 2d 769).
The court has also considered the argument made by petitioner that the amendment in question is invalid because of failure to comply with the express requirements of sections 13 C, D and F of the zoning ordinance itself. There appears to be merit in this contention, but in view of the fact that it has been determined that petitioner acquired a vested right to develop its property in accordance with the building permit, the court does not deem it necessary to pass upon the validity of the amendment.
Accordingly, the relief sought by the petitioner is granted and the respondent is directed to reinstate the building permit heretofore issued.