Opinion
278 A.D. 125 103 N.Y.S.2d 549 In the Matter of WHITE PLAINS HOUSING AUTHORITY, Appellant, v. ZONING BOARD OF APPEALS OF THE CITY OF WHITE PLAINS et al., Respondents. Supreme Court of New York, Second Department. April 2, 1951
APPEAL from an order of the Supreme Court at Special Term (SCHMIDT, J.), entered July 12, 1950, in Westchester County, which dismissed an application by petitioner, in a proceeding under article 78 of the Civil Practice Act for an order annulling a determination of the Zoning Board of Appeals of the City of White Plains which granted permission to respondent Winchester Equities, Inc., to erect a garage building in connection with its nonconforming use, as a gasoline filling station, of premises owned by it and situated opposite petitioner's public housing project. After said Winchester Equities, Inc., had applied to the Zoning Board of Appeals for such a variance and a hearing had been held on December 7, 1949, the City of White Plains repealed the existing zoning ordinance on December 19, 1949, and adopted a new zoning ordinance, effective January 21, 1950, in which said premises of Winchester Equities, Inc., were rezoned from commercial use to residence use. The new zoning ordinance provided that 'The repeal of the above ordinances does not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as full and to the same extent as if such repeal had not been effected.' The Zoning Board of Appeals granted the requested variance on April 10, 1950.
COUNSEL
John J. Dillon for appellant.
William R. Condit, Corporation Counsel (John H. Shetron of counsel), for Zoning Board of Appeals, respondent.
Samuel Faile for Winchester Equities, Inc., respondent.
Per Curiam.
The Zoning Board of Appeals has not stated any facts in the resolution authorizing the erection of the garage, and those facts which can be ascertained from the record do not establish that unnecessary hardship or difficulty is imposed upon the owner by the zoning ordinance. (Matter of Otto v. Steinhilber, 282 N.Y. 71.)
The board was bound by the zoning ordinance adopted after the hearing but before the determination. (Matter of Cherry [Isbister], 201 A.D. 856, affd. 234 N.Y. 607.) That ordinance did not provide for the erection of new buildings in nonconforming areas. (§§ 5, 7.) The owner, by filing the application and by the hearing, gained no right, inchoate or vested, which was protected by the saving clause in the new ordinance. (Matter of Atlas v. Dick, 275 A.D. 670, affd. 299 N.Y. 654; Matter of Fox Lane Corp. v. Moore, 216 A.D. 813, affd. 243 N.Y. 550; Rice v. Van Vranken, 225 A.D. 179, affd. 255 N.Y. 541.)
The language of the saving clause relates to an act done by the board or to a right accruing based on an act done by the board. Here the act was done by the board after the repeal, not before, and the pseudo right, if any, accrued after the repeal, when the ordinance no longer existed. A different situation would be presented if the board had acted or granted a permit before the effective repeal date and the petitioner had not exercised the right granted by such a permit. In the latter situation the saving clause would inure to petitioner's benefit, and it could act on the permit even though it had not previously acquired a vested right under the doctrine of the cited cases which did not have saving clauses. But here the board's action occurred after the repeal of the ordinance invoked. This interpretation of the saving clause gives it effect in a proper case and is consistent with the doctrine of the 'vested right' cases. If it were intended to relate to pending but undecided applications, appropriate language was available and could have been used, as has been done in kindred situations (e.g., landlord and tenant legislation). In Cameron v. New York s&sMount Vernon Water Co. (133 N.Y. 336) the acts referred to in the saving clause related to acts of the parties, and rights growing out of acts of the parties. That is not the situation here. In the Cameron case the clause was not concerned with acts of an official body or rights emerging therefrom, as is the clause in the instant case. (See, also, Boardwalks&sSeashore Corp. v. Murdock, 286 N.Y. 494; Palmer v. Hickory Grove Cemetery, 84 A.D. 600, 606, 607; Webster v. Town of White Plains, 93 A.D. 398, 400, and United States Mtge.s&sTrust Co. v. Ruggles, 232 A.D. 9.)
The order should be reversed on the law and the facts, without costs, and the determination annulled, without costs.
NOLAN, P. J., CARSWELL, JOHNSTON, WENZEL and MACCRATE, JJ., concur.
Order reversed on the law and the facts, without costs, and the determination annulled, without costs.