Hyslip v. Sloan

Nov 10, 1986
Versions:124 A.D.2d 1060
508 N.Y.S.2d 732
1986 N.Y. App. Div. LEXIS 62421

Memorandum: Petitioner appeals the dismissal of his CPLR article 78 petition, in which he sought to overturn the decision of the Village of Alfred Zoning Board of Appeals which had upheld the denial of a building permit to construct a pizzeria, apartment and health spa in the village on the ground that petitioner did not meet the parking requirements of the zoning ordinance.

We must apply Local Laws, 1985, No. 1, since it is the law existing at the time of this decision (Matter of Boardwalk & Seashore Corp. v Murdock, 286 NY 494, 498-499; Park of Edgewater v Joy, 50 NY2d 946, 948, rearg denied 51 NY2d 770; Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 NY2d 921, 922). That ordinance requires parking adjacent to the proposed commercial use to be within 300 feet of the commercial use, measured along public thoroughfares. Petitioner failed to meet that requirement, as his parking was within 300 feet only if measured over privately *1061owned property which he had no right to use. His permit therefore was properly denied. Nor has petitioner met the "special facts” exception, which requires a showing that officials acted in bad faith by delaying or denying his application while they changed the law. Further, no showing was made that under the law in effect at the time of the original application, petitioner would have been entitled to a permit (see, Matter of Pokoik v Silsdorf, 40 NY2d 769, 772-773, rearg denied 42 NY2d 824). The zoning ordinance then in effect provided that parking must be within 300 feet but was silent with respect to how the distance should be measured. We agree with the trial court that it was reasonable to construe that ordinance as requiring measurement along public thoroughfares.

We have examined petitioner’s remaining arguments and find them to be without merit. (Appeal from judgment of Supreme Court, Allegany County, Sprague, J. — art 78.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.