213 A.D. 155 | N.Y. App. Div. | 1925
Lead Opinion
The board of appeals asserts that it is aggrieved by two orders made at Special Term, Bronx county, on certiorari proceedings, which orders annulled the determination of the board of appeals in respect of the revocation of building permits issued by the building superintendent of the borough of The Bronx. Both appeals involve the same questions and will be considered together.
The records show that in October, 1923, plans were filed with the superintendent of buildings by the Multiplex Garage, Inc., and by James R. Ashley, for a group of garage buildings, which constitute, in effect, a single garage, for the storage of fifty-six motor cars. The plans filed in the name of the Multiplex Company provided for twenty-four single metal garages, each ten by seventeen feet, upon lots averaging thirty feet in width on Cromwell avenue and those filed in Ashley’s name were designed for thirty-two single metal garages of the same dimensions upon lots averaging the same width on Boscobel avenue. Part of the plot upon which these garages are to be erected fronts on Boscobel avenue and the other part on Cromwell avenue.
In November, 1923, after the plans were filed, Ashley bought the land as one plot. On December 24, 1923, he conveyed the Cromwell avenue frontage to the Multiplex Company, of which he is the president, but retained the Boscobel avenue frontage in his individual ownership. The plot was not, at that time, divided into
“ § 4. Business Districts, (a) In a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of the following specified trades, industries or uses: * * *
“ (15) Garage for more than five motor vehicles, not including a warehouse where motor vehicles are received for dead storage only, and not including a salesroom where motor vehicles are kept for sale or for demonstration purposes only.” (See Minutes Bd. Est. & Apport. City of N. Y. 1916, vol. 5, p. 4244; Id. 1917, vol. 8, p. 7420; Cosby’s Code of Ordinances [Anno. 1924], pp. 625, 626.)
This section, as its words indicate, prohibits the use not only of a building but also of premises for a garage for more than five motor vehicles.
A property owner in the vicinity demanded that the superintendent of buildings revoke the permits which were issued to Ashley and the Multiplex Company. He claimed that the permits were in violation of article 2, section 4, of the Building Zone Resolution. The superintendent of buildings refused to revoke the permits and the board of appeals on an appeal from the building superintendent’s decision reversed the superintendent and allowed the appeal. The permits were revoked and the Multiplex Company and Ashley were directed to abandon work on the premises.
On these certiorari proceedings the Special Term of Bronx county set aside the action of the board" of appeals and restored the permit which had been granted originally by the superintendent of buildings.
We think that the erection of a number of individual garages in one group on premises in a business district, which group in the aggregate accommodates more than five motor vehicles, is a
There is no specific provision therein which restricts the use of premises, 'except as to the erection of a garage for more than five motor vehicles on any premises, yet it would certainly be a palpable evasion of the reason for the law to permit the use of premises for many separate garages, although none is designed for more than five motor cars.
It apparently was not the intention of the framers of the Building Zone Resolution to permit the erection of a large number of individual garages housing in the aggregate more than five motor cars. The scheme is obviously a mere device for defeating the application of the zoning restrictions as to this business district, and it should be restrained in line with the decision of the public authorities having control of such matters, to wit, the board of appeals, if such restriction can be carried out. We recently decided in People ex rel. Werner v. Walsh (212 App. Div. 635) that the courts would not attempt to interfere with the discretion of the members of this board in rejecting or permitting the erection of garages in certain streets where applications had been made and allowed by the board or rejected by the board merely because the court might come to a different determination. Certainly, the effect of the ruling permitting any number of small garages in a business district congregated in one plot destroys the business character of the district and turns the same into a garage community. There is practically no difference between a public garage for more than five motor cars under one roof and the distribution of small garages over an entire plot where more than five motor cars may be accommodated.
The board of appeals having exercised its judgment and discretion in not only a reasonable manner, but in accordance with the spirit of the Building Zone Resolution, and in good faith, and not contrary to any law, we should uphold their decision, since theirs is the responsibility for maintaining its salutary effect in guarding the various zone districts from improper invasion.
The form of the proceedings, "if form were still vital, would require their dismissal, notwithstanding the directions for a writ of certiorari prescribed by section 719-a of the Greater New York charter (as added by Laws of 1916, chap. 503), but under sections 105, 109 and 111 of the Civil Practice Act, the mistake of process (the suing out of a writ of certiorari) will be disregarded. The
We think the orders appealed from should be reversed, with ten dollars costs and disbursements, the certiorari orders dismissed, and the proceedings of' the board of appeals confirmed, with fifty dollars costs in each case.
Clarke, P. J., Dowling and Burr, JJ., concur; Merrell, J., dissents.
Dissenting Opinion
(dissenting):
The provisions of the Building Zone Resolution of 1916, as amended,- prohibiting the use of any building or premises for and the erection within a business district of a garage intended to be used for more than five motor vehicles is in derogation of the common-law rights of the petitioners, and must be strictly construed. (Woollcott v. Shubert, 217 N. Y. 212, 220; Apex Leasing Co. v. Litke, 173 App. Div. 323; affd., 225 N. Y. 625.) Thus construed, I think there has been no violation of the Building Zone Resolution in question. The petitioners have erected and are about to erect on separate lots one-car garages. The proposed garages are unconnected and are separately numbered, and are intended to be leased out separately and are not to be operated otherwise than individually. ' Under such circumstances I do not think there has been any violation of the Building Zone Resolution.
I, therefore, dissent from the majority of the court and vote to affirm the orders of the Special Term annulling the determination of the board of appeals in respect to the revocation of building permits to the petitioners.
In each case: Order reversed, with ten dollars costs and disbursements, the certiorari order dismissed and the determination of the defendants confirmed, with fifty dollars costs.