14 N.Y.2d 356 | NY | 1964
Petitioners Alexander and Ruth Pansa own a dwelling house and lot fronting on Rose Place in a residential (A-2, two-family) zone in the City of Utica. The nearest cross street is Genesee Street. On the comer of Rose Place and Genesee Street nearest to petitioners’ house is the commercially zoned and commercially used property owned by one Sitrin, with its front line on Genesee Street, its side line on Rose Place, and its rear boundary adjacent to the side line of petitioners’ Rose Place lot. This proceeding was brought to review a determination of the city’s Zoning Board of Appeals which rejected petitioners’ appeal from the issuance to Sitrin by the city building commissioner of a permit to build a three-story concrete block building on Sitrin’s land back of his Genesee Street building. The new structure so authorized (and now long since completed) has its front or main entrance on Rose Place. Petitioners assert that the new building violates Utica’s city zoning ordinance in these principal respects (besides others): first, that the new building or addition is a “ warehouse ” and as such prohibited in a commercial zone (art. VII, § 2, subd. 8); second, that the rear wall of the new structure is but 5 feet distant from petitioners’ lot line in violation of section 4 (subd, 3) of article VII of the zoning
Special Term (while declaring as to the merits that petitioners’ objections were not well founded) dismissed .the proceeding on the ground that the appeal to the Zoning Board of Appeals was not taken within the time limited by section 3 of article XIII of the' zoning ordinance. Section 3 requires that such an appeal “be taken within thirty (30) days of the date of the decision, by filing with the Superintendent of Buildings and with the Board a notice of appeal specifying the grounds thereof ’ ’. The Appellate Division unanimously and without leave affirmed Special Term’s order and we granted petitioners leave, to appeal.
The immediate question, therefore, is: was petitioners’ appeal to the board of appeals taken within 30 days of the board’s decision! The material evidence as to this is undisputed. On September 21, 1962 Sitrin applied to the building commissioner for a permit for a structure described on the plans as a “ warehouse ”. The permit was issued on the same day. About September 24 petitioner Alexander Pansa saw that an old building at the rear of Sitrin’s lot was being razed. On September 26 Pansa, made inquiries and was told at the city Buildings Department office that there had been issued to Sitrin a permit
The' whole of the position of the city officials as to the timeliness issue is that the zoning ordinance at the point where it calls for an appeal to be taken “ within thirty (30) days of the date of the decision ” means within 30 days from the issuance of the permit. Such a construction or application might in some fact situations be permissible but on these facts it is unreasonable and undesirable. Strictly applied,, it might prevent any appeal at all since the neighbors might not learn till long afterward of the issuance of a building permit. As applied to an applicant denied a permit the proposed construction might
Since we are holding to have been timely petitioners’ appeal to the Zoning Board of Appeals and since the board and Special Term, but not the Appellate Division, have disclosed their holdings on the other issues, the appeal will be held in this court and request made to the Appellate Division to amend its order so as to state its decision as to each of the questions presented other than timeliness of the appeal to the Zoning Board of Appeals.
Judges Dye, Fuld, Van Voorhis, Burke, Scileppi and Bergan concur.
Determination of the appeal withheld and the Appellate Division requested to amend its order so as to state its decision as to each of the questions presented other than the timeliness of the appeal to the Zoning Board of Appeals.