274 N.Y. 34 | NY | 1937
The intervening respondent Anna Benisch owns an extensive plot of land on the corner of Jamaica avenue and Autumn avenue in Brooklyn. It is designated on the tax map and is assessed as a single unit. For many years prior to 1916 this land was occupied by Benisch Bros., Inc., and its predecessor as a monument and stone-cutting establishment. After the adoption of the Zone Resolution, July 25, 1916, these premises were zoned in a business district but, although the monument and stone-cutting business is, under that resolution, a non-conforming use, its continuance was authorized by section 6 (a) of the resolution.
In December, 1933, Benisch Bros., Inc., made application to the Commissioner of Buildings to change the use of part of the property fronting on Jamaica avenue from a stone and monument plant to a gasoline station. A permit was issued in December, 1933, and a certificate of occupancy was issued July 6, 1934. Later an application was made for a permit for the erection of an "office building" and a four-car garage on the same plot. This application was approved in April, 1934, and a certificate of occupancy was issued August 2, 1934. The monument and stone-cutting business on this plot remained. Thereupon this appellant, a property owner in the vicinity, applied to the Commissioner of Buildings for a revocation of the permits and certificates of occupancy. His application was denied and his appeal to the Board of Standards and Appeals from the decision of the Commissioner of Buildings also was denied and the decision of the Commissioner was affirmed. On certiorari the determination of the Board of Standards and Appeals was confirmed, the order of certiorari was vacated and *37 the Appellate Division unanimously affirmed the order of the Special Term.
The issue of law is presented whether the addition of the gasoline service station, the "office building" and the four-car garage to these premises constitutes such a change from one non-conforming use to another non-conforming use on the same premises as is authorized by the following provisions of the Building Zone Resolution: Sec. 4 (a), "In a business district no building or premises shall be used, and no building shall beerected which is arranged, intended or designed to be used, for
* * * stone or monumental works * * * gasoline servicestation." Sec. 6 (b), "Any use existing in any building orpremises on July 25, 1916, and not conforming to the regulations of the use district in which it is maintained may be changed, and such use may be extended throughout the building, provided that in either case: (1) No structural alterations shall be made in the building, except as authorized by paragraph a of this section; and * * * (4) In a residence or business district nobuilding or part thereof and no premises, unless devoted to one of the uses that is by paragraph a or b of section 4 prohibited in a business district, shall be changed to any of such uses." (New York Code of Ordinances, Appendix B.) The structure described as an "office building" and the four-car garage were erected on these premises which constitute one plot in a single ownership (Beekwill Realty Corp. v. City of New York,
The order of the Appellate Division and that of the Special Term should be reversed and the order of certiorari sustained, with costs in all courts.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly. *39