304 N.Y. 105 | NY | 1952
Defendant keeps pigeons as a hobby, and since 1945 has harbored them on his property, located in a residential area of the Town of North Hempstead. In 1947, the town’s Building-Zone Ordinance was amended to outlaw such a use of property in a residential, business or commercial zone: “ In any use district ”, Article XV, section 155.5, provides, “ no premises may be used or occupied and no structure may be erected or
Defendant was convicted in 1951 of a violation of the ordinance, and he appeals, urging that his pre-existing use of the premises for harboring pigeons rendered the regulation unenforcible against him. The argument lacks force; conviction was proper. While enforcement may perhaps be sustained on the ground that the ordinance is in truth a nuisance regulation, aimed at noxious and offensive uses of property (see, e.g., Hadacheck v. Los Angeles, 239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Adamec v. Post, 273 N. Y. 250; Matter of McIntosh v. Johnson, 211 N. Y. 265; Barkmann v. Town of Hempstead, supra, 268 App. Div. 785, affd. 294 N. Y. 805; see, also, Jones v. City of Los Angeles, 211 Cal. 304, 316), we need not concern ourselves with that possibility, since, putting aside the element of nuisance, defendant’s nonconforming use was not of such a character as to protect it from the application of a zoning measure.
It is the law of this state that nonconforming uses or structures, in existence when a zoning ordinance is enacted, are, as a general rule, constitutionally protected and will be permitted to continue, notwithstanding the contrary provisions of the ordinance. (See People ex rel. Ortenberg v. Bales, 250 N. Y. 598; Matter of Caponi v. Walsh, 228 App. Div. 86; New York State Investing Co. v. Brady, 214 App. Div. 592; Matter of Pelham View Apts. v. Switzer, 130 Misc. 545; People v. Stanton, 125 Misc. 215; cf. City of Buffalo v. Chadeayne, 134 N. Y. 163; see, also, Jones v. City of Los Angeles, supra, 211 Cal. 304; Amereihn v. Kotras, 194 Md. 591; Adams v. Kalamazoo Ice & Fuel Co., 245 Mich. 261; Rathkopf, The Law of Zoning and
That being the rationale of our decisions, it follows, and the cases so hold, that the enforcement of a zoning regulation against a prior nonconforming use will be sustained where the resulting loss to the owner is relatively slight and insubstantial. (See People v. Kesbec, Inc., 281 N. Y. 785, motion for reargument denied 282 N. Y. 676; People v. Wolfe, 272 N. Y. 608, motion for reargument denied 273 N. Y. 498; Rice v. Van Vranken, 255 N. Y. 541, affg. 225 App. Div. 179; Matter of Fox Lane Corp. v. Mann, 243 N. Y. 550, affg. 216 App. Div. 813; People ex rel. Rosevale Realty Co. v. Kleinert, 237 N. Y. 580; Matter of Caponi v. Walsh, supra, 228 App. Div. 86.) This rule has been invoked, for example, in cases where work upon a building has been begun, pursuant to a valid building permit, prior to adoption of a zoning provision barring use of the property for a structure of that sort. In the Fox Lane case (supra, 216 App. Div. 813), we affirmed a holding that the particular “ expenditures made and obligations incurred by the respondent in reliance upon the
In this state, then, existing nonconforming uses will be permitted to continue, despite the enactment of a prohibitory zoning ordinance, if, and only if, enforcement of the ordinance would, by rendering valueless substantial improvements or businesses built up over the years, cause serious financial harm to the property owner. This rule, with its emphasis upon pecuniary and economic loss, is clearly inapplicable to a purely incidental use of property for recreational or amusement purposes only. Such an inconsequential use as that here involved — the harboring of pigeons as a hobby — does not amount to a “ vested right ”, and “ Depriving [defendant] of this pastime does not affect substantially [his] property rights * * * in the use of the premises, which are otherwise undisturbed and unimpaired.” (Barkmann v. Town of Hempstead, supra, 268 App. Div. 785, affd. 294 N. Y. 805.)
The judgment should be affirmed.
Lottghran, Ch. J., Lewis, Conway, Desmond, Dye and Froe&sel, JJ., concur.
Judgment affirmed.
. By that other section (Art. XVII, § 174.2), the Board is empowered to issue “ temporary and conditional permits for a period not to exceed two (2) years for structures, buildings and uses in undeveloped sections of the Town, as determined by the Board, in contravention of the requirements of this Ordinance.”