141 Misc. 117 | N.Y. Sup. Ct. | 1931
I find no reason to alter the views expressed in the memorandum made at the time of granting an alternative order of mandamus, in so far as those views were related to the effect of the provisions of the ordinance as to set-back lines. (See, also, 141 Mise. 105.) Reference is here made to that memorandum, which is made in so far a part hereof. I will, however, emphasize the views therein expressed, to the effect that the power to establish so-called set-back lines, if any, does not arise out of the power to enact zoning ordinances. “ Zoning ” means “ districting,” and the
The courts went a long way in extending the application of the police power so as to include “ zoning ” within its scope. Conditions of life in cities rather compelled an extension of former concepts of the police power. The courts however, have been careful to limit the scope of zoning ordinances: they must be adopted, if to be sustained, in accordance with a well-considered and comprehensive plan, general in its application, and be largely based upon the proposition that upon proper application there would be no real damage caused to the individual property owner. Variances may be allowed in cases of undue hardship. Arbitrariness is overcome by the setting up of boards of appeal — excepting in Syracuse, N. Y., which has no such board.
The “ set-back line ” provisions, however, do not relate to the character of use to which property may be put. They have become necessary largely because of the growth in the height of buildings, the effect of which was to shut out light and air and to create an increase of fire hazards. The fact that they may operate to improve the appearance of a street from an aesthetic standpoint is an incident and not a purpose. The question is, in every effort to establish so-called “ set-back lines,” whether that effort is motivated by considerations of public health, of public safety, of general welfare. Side building lines and location of buildings in relation to the rear are quite as, if not more, important from these standpoints.
It is quite evident that the so-called “ set-back line ” provisions
So that, if this were all there was involved in the instant case, there would be no hesitation in granting the order of mandamus. In other words, the views expressed in the memorandum already filed have not been altered but have been strengthened by further consideration of the subject. The peremptory order of mandamus was not granted because of the view expressed in that memorandum, as follows: “ It remains to be considered whether or not, where a property has been used in part for business purposes prior to the establishment of the block in which it is located as a B-residential district, the structures may be enlarged after the establishment of the residential district so as to occupy more of the land for a then prohibited business purpose than was occupied by the original structure.” It was to allow for an examination of this question, together with the further question as to whether in this particular instance such a hardship was being worked upon the petitioner that his constitutional rights to property had been invaded that the alternative order was granted.
At the time when the zoning ordinances went into effect in the city of Syracuse, the petitioner had the undisputed right to maintain his business in the buildings as they then existed. The question left open was whether or not the structure could be enlarged and the business extended, and as to what power there was in the city government, under the ordinances as they existed, in reference [to the situation which arises from the purpose of the petitioner to enlarge his buildings. There is no warrant in the facts of this case for the revocation of the permit granted by the superintendent of the bureau of building to the petitioner to enlarge his buildings, provided that at the time when the permit was granted he had the
Three of the provisions of the zoning ordinance bearing upon this question have already been quoted in the memorandum made upon the granting of the alternative order of mandamus: They are Article V.4.2, Article V.4.3 and Article V-4. There is a fourth provision, which reads:
“ Article 5.4.7. Conditional use. When in its judgment the public convenience and welfare will be substantially served or the appropriate use of neighboring property will not be substantially or permanently injured, the Planning, Parks and Recreation Commission may, with the approval of the Common Council, in a specific case, authorize a conditional use in a district wherein such use is prohibited. The conditions shall be specified in writing in the permit and shall in no way be construed as allowing the property any other use than the specific use for which the permit is issued.”
These are the only provisions in the zoning ordinance which govern the question of variance, and have no relation to the questions which arise herein. If, therefore, as a matter of law, the power to extend a use at the time authorized by way of enlargement of building structures on additional area for a purpose prohibited within a residential district did not exist, then the permit issued was issued without authority and was void. What the petitioner proposes to do is to extend his business by way of new construction and the use and occupancy of it beyond the use of the property as it existed at the time of the establishment of the district in which the premises of the petitioner are located as a B-residential district. As has already been intimated, there should be provision for variance or tolerance in cases where undue hardship may be worked upon an individual by reason of the general operation of a rule,
The evidence in the case fails to disclose any set of circumstances from which the court could conclude that an undue hardship was being worked upon the petitioner by reason of the operation of the zoning ordinance. The petitioner is not being interfered with in the use and occupancy of his property as it existed at the time when the district was converted into a B-residential district. It may be that the mere erection of a canopy for the convenience of customers applying for a supply of gasoline or oil, as a protection to them from rain or sunshine, would not constitute an unreasonable extension of use. Of course upon the same foundation, upon compliance with the general provisions of the building code, it perhaps would not be a violation of the zoning ordinance to increase the height of the structure within the same area as the present structure upon the premises. Reasonable improvements would have to be tolerated, and undoubtedly they would not be met with objection. All the petitioner has here shown is, by an expert witness, that his property would be worth $3,500 more with the privilege of building his building out to the street line than it would be with the limitations placed upon it. If that were true, it would also be
The petition for an order of mandamus is denied.
Ordered accordingly.