Opinion
January 20, 1971
Appeal by the defendant from a judgment of the Supreme Court, entered in Tompkins County on August 16, 1968, insofar as the said judgment permanently enjoined the defendant from leasing his dwelling units to more than three unrelated persons pursuant to the zoning ordinance of the respondent town as amended on February 26, 1968. The appellant was the owner of a tract of land in the Town of Ithaca in a zone (R15) which permitted two-family houses. He applied on May 9, 1967 to the planning board for subdivision approval for his lots of 15 houses in accordance with the ordinance and following a hearing, at which the intended use of the houses was not raised, the board approved the plan and issued the necessary permit. Subsequently the appellant commenced the construction of two-family buildings, each of the two floors comprising a separate unit, it being the intention of the appellant to rent the said buildings in whole or in part to students or faculty members of Cornell University. Thereafter the respondent, having amended the ordinance, on May 16, 1968 advised the appellant that the building permit was being revoked because the construction was in violation of the zoning ordinance. The trial court found that prior to the amendment of the ordinance the appellant had the legal right to build such two-family houses and respondent on this appeal concedes this to be the fact. The determinative issue on the present appeal concerns what effect amendments to the zoning ordinance have on the use of the buildings which were in the process of construction at the time of the said amendments. On February 28, 1968 the ordinance was amended so that a "family" was described as "one or more persons related by blood, marriage or adoption * * * or a group of one or more persons occupying the premises and living as a single housekeeping unit, as distinguished from a group occupying a boarding house, rooming house, lodging house, club, fraternity, hotel or motel". The ordinance was further amended by deleting the prior definition of a "rooming house" and establishing a new category "boarding house", defined as "Any dwelling in which more than three persons either individually or as families are housed or lodged for hire with or without meals. A rooming house * * * shall be deemed a boarding house". The respondent contends, and the court below so found, that the definitions of a family and a boarding house must be read together and, by so doing, the conclusion is reached that not more than three unrelated persons can be housed together so as to constitute a family. It is further suggested that because the definition of a family states that a family is distinguished from a group occupying a boarding house and the definition of a boarding house sets the numerical limits thereby causing any unrelated group of six or seven persons such as the ones herein to constitute a boarding house, the groups herein cannot constitute a family. This contention that a group of students cannot be a family and is, of necessity, a group which would constitute a boarding house is not the way the ordinance reads and if such were the intention of the respondent, the ordinance should have been written as it was further amended in 1970. The 1968 definition of a family purports to distinguish boarding house and the distinction between the two types of dwelling would appear to be an occupancy as a "single housekeeping unit". The present record establishes that the buildings of the appellant each constituted a single housekeeping unit and was, therefore, permissible under the amended ordinance. In Matter of Laporte v. City of New Rochelle ( 2 A.D.2d 710, affd. 2 N.Y.2d 921), the court, where the zoning ordinance defined a family as "one or more persons occupying a dwelling unit as a single, nonprofit housekeeping unit", determined that a building to be used as a residence for 60 student members of a Roman Catholic religious order was a "family" residence. Since the city placed "no limitations on the number of persons constituting a family" and it did not "require the members thereof [to] be related", the court was of the opinion that it could not impose any restrictions not in the ordinance. A zoning ordinance is to be strictly construed against the town, not against the property owner ( Matter of 440 East 102nd St. Corp. v. Murdock, 285 N.Y. 298, 304; Thomson Ind. v. Incorporated Vil. of Port Washington North, 27 N.Y.2d 537, 539). The recent case of McCord v. Pichel ( 35 A.D.2d 879) is inapplicable to the present case as there was no definition of "family" to be construed by the court and, further, the question therein related to the interpretation of restrictive covenants in a deed. In view of our decision it is not necessary to consider the further question decided by the trial court as to the issue of a nonconforming use. The intended use of the property by the appellant was permissible under the amended ordinance as well as the ordinance prior to its being amended. Judgment reversed, on the law and the facts, and complaint dismissed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.