181 Misc. 546 | N.Y. Sup. Ct. | 1943
The action is to terminate a sawmill built and operated by defendant Edwin- N. Bauber upon leased land, in the village of North Hornell, Steuben County, New York. Defendants Wells, owners of the land, have consented to the granting of the relief prayed for in the complaint. Bauber, who has answered and contests the action, is in rightful occupation, according to the complaint, which states that he is the lessee in possession of the land and the owner of the buildings, machinery, tools and equipment now located thereon, The mill is near the edge of the village and adjoins land owned by New York State for flood abutment dikes. It was built in July, 1935, after Bauber’s previous mill located elsewhere had been inundated by a flood.
The second and third causes of action will be decided before considering the effect of the zoning ordinance.
It appears from the map (Plaintiff’s Ex. 1) that no portion of the sawmill or the smaller building designed as “ plane mill ” encroaches upon Cleveland Avenue. The zoning ordinance provides for setback lines but these apply only to structures thereafter erected. They can have no application to Rauber’s buildings as originally constructed. Lumber and ties have been piled within the limits of Cleveland Avenue which should be removed.
The sawmill does not constitute a nuisance. It is true that the Village of North Hornell, adjoining the City of Hornell, is largely a place of residence for people working in the city. The presence of any industrial establishment adversely affects the value of neighboring property.
The case of McCarthy v. Santa Clara Lumber Co. (241 N. Y. 565), cited by plaintiff, involved a different type of mill, employing 100 men at the plant, and having a total pay roll of $250,000 per year. The unreported opinion of the trial court, whose judgment was affirmed without opinion on appeal (Record on Appeal, fols. 1338, 1339) states: “ The former owners had used it only as a sawmill and, while it was so used, there was little or no complaint.” Defendant therein afterward built a rossing mill and one for the manufacture of sulphite chips. The opinion continues: “Before that, sawdust had been the fuel and, while a fine soot was emitted, the conditions were not such as to cause complaint.” Rauber’s mill is much smaller, measuring sixty-five feet by twenty-four feet, operated by himself and a few helpers.
That brings us to the more difficult question whether the mill should be enjoined under the zoning ordinance on account of the fire which occurred in December, 1941. No point has been raised of any voluntary abandonment of the existing use by Rauber. He repaired his mill as soon as practicable after the fire in view of his limited assistance and the difficulties placed in his way by the Village authorities. The pertinent part of the zoning ordinance reads as follows:
*550 “ Section 7 — Reversion of Use. If a non-conforming building or use, existing at the time this ordinance shall become effective, is subsequently changed to a conforming use, or is destroyed by fire, explosion, Act of God, or the public enemy to the extent of more than seventy-five per cent of its assessed valuation, such building or use shall not again be altered or rebuilt, except in conformity with the rules and regulations of the district in which such building is located.”
The 1941 assessment roll contains the following entry: “ Wells, J. B. and wife sawmill on leased land $300.00.” The damage by fire was $350. The true value before the fire of the building and fixtures belonging to the realty was $1,500. It was destroyed to the extent of more than 75% of the $300 appearing upon the roll as the assessed valuation, but less than 25% of the true value of the structure. Does this render the application of the zoning ordinance to the Rauber sawmill unreasonable, arbitrary and confiscatory? That is the question which the court is called upon to decide. (Fire Department of New York v. Gilmour, 149 N. Y. 453, 458, 459; People v. Kaye, 212 N. Y. 407, 417.)
To enforce this provision of the zoning ordinance against the defendant Rauber in the manner contended for by plaintiff would be oppressive. The mill was built before the adoption of the ordinance. Even after its enactment, he was permitted by the Village Board to make alterations in 1939. The members of the Board met at the mill in person and orally permitted' the changes which Rauber requested and afterward made at substantial cost. Rauber had a vested property right, which- the Village Board recognized, to maintain and operate his Sawmill as a pre-existing use which could not be destroyed by any subsequent zoning ordinance. (People ex rel. Ortenberg v. Bales, 224 App. Div. 87, affd. 250 N. Y. 598; Village of Mill Neck v. Nolan, 233 App. Div. 248, affd. 259 N. Y. 596; City of Buffalo v. Chadeayne, 134 N. Y. 163; People v. Miano, 234 App. Div. 94; Dobbin v. Los Angeles, 195 U. S. 223; Matter of Pelham View Apts. v. Switzer, 130 Misc. 545; People v. Stanton, 125 Misc. 215; Rathkopf on Zoning & Planning, § 21.) Did the fire terminate this vested right? Would an injunction deprive Rauber of property without due process of law? However much was destroyed in the fire, a substantial amount in value remained. The wooden floor, walls and roof of the building were burned, but the principal part of the sawmill consisted in the concrete foundation, which was mostly left intact, and the machinery, which suffered no injury to the metal parts. The boilers did
If plaintiff’s position were sound, the undamaged portion of this sawmill would be confiscated. It is no answer to say that some of the unburned part could be salvaged and reconstructed elsewhere. That would not be true, in any event, of the forty-two or forty-three uninjured concrete piers supporting
This has been said upon the assumption that plaintiff is correct in its interpretation of Matter of Koeber v. Bedell (280 N. Y. 692, supra). It is seriously questioned that the Court of Appeals rested its decision upon that ground, or intended without an opinion, to announce a general rule that 25% of the investment of an owner might be expropriated. In the record and briefs on appeal emphasis was laid upon the inflammable nature of celluloid manufacturing involving danger from fire to surrounding property, which may have affected the decision. An exercise of the police power to destroy existing buildings when the public safety or the public health is in imminent danger is different from the zoning of land and buildings for trade, industry, residence and other purposes to promote the orderly development of municipalities. No compensation to the owner is required in the former instance (Tenement House Dept. v. Moeschen, 179 N. Y. 325, 330; Russell v. City of New York, 2 Den. 461), but in the latter buildings and structures rightfully erected cannot be demolished or their use enjoined except upon payment of compensation. (See decisions cited, supra, holding Rauber to have a vested right as against the public to maintain the mill.) It is found that this sawmill is not a menace to the public safety or to the public health on account of escaping sparks, smoke, noise, or other cause. Possibly no constitutional rights would be invaded by preventing reconstruction of nonconforming buildings where destruction has been complete. The following statement, by a leading authority, throws light upon the practice in these matters: “ The
Until recently, there would not have been much basis for dispute. Modern trends of constitutional interpretation do not appear to have changed the result. Zoning is within the field of social legislation, but is outside of the storm center of controversy over constitutionality of the more widely discussed social reform measures of the day. Epochal decisions by courts of high authority upon the latter subjects have sometimes seemed to rock the whole structure of constitutional law, and doubtless have had repercussions extending into every part. Nevértheless it would be a poor service to the cause of social
Under subdivision (a) of section 5 of the zoning ordinance, a permit is required before the alteration of any structure is commenced. Defendant Bauber has violated that requirement by restoring the mill after the fire without a permit. This infraction is technical since an application for a permit would have been refused, as he was informed by the Village authorities. Lack of a permit would not justify an injunction requiring removal of the mill for the reasons stated by the Appellate Division in Village of Mill Neck v. Nolan (233 App. Div. 248, affd. 259 N. Y. 596, supra). Whether he may be liable to a penalty for not bringing against the Village a proceeding in the nature of mandamus to compel the issuance of a permit before rebuilding is not decided.
The complaint should be dismissed, except that to the extent that ties, lumber or other wood have been piled within the property lines of the streets, the judgment shall command their removal.
It has been assumed that neighboring lots are worth somewhat less than they would be if the mill were not there; evidence to that effect is in the record. This evidence was regarded as ineffective upon the nuisance cause of action, since the witness testified that the same depreciation would occur if the mill were any industrial plant similar to this but operated without smoke or noise. Depreciation of neighboring property due to the mere presence of a factory which would not exist if the area were entirely residential does not tend to establish a nuisance.