Pete-Lor, Inc. v. Haber , 330 N.Y.S.2d 852 ( 1972 )

Brennan, J. (dissenting).

It is undisputed that for many years prior to 1950 the petitioner’s predecessor in title operated a gasoline service and filling station in the building in question, which contained two bays and was in a business district in the Village of Cedarhurst. This was a pre-existing ánd permitted use under the Code of Ordinances of the Village of Cedarhurst enacted in January, 1941 (§ 50, subd. 1, par. [y]).

On July 28,1950, the code was amended so as to repeal the 1941 enactment which had permitted automobile filling and service stations and to prohibit such stations having a frontage or property boundary line on Central Avenue.

In 1954 adjacent property was purchased and an application was made to construct a 75-foot by 40-foot addition, with three bays and two gasoline pumps, as an addition to the existing structure and for use as a gas station and for kindred facilities.

Although prohibited by the 1950 amendment, a building permit was issued; and a building containing three bays, together with two gasoline pumps, was constructed on the newly acquired property. The certificate of occupancy provided that the building was to be used for a gasoline station and accessory uses thereto; and further provided that a special application would be required for body and repair work, spray painting and any other use not incidental or accessory to a gasoline service station.

One bay in the new structure and the pumps were used in conjunction with the existing gas station; and the other two bays were used (eventually) as an auto body repair and painting shop. The special application and ¡approval, as required by the certificaté of occupancy, had not been obtained.

In my opinion, the petitioner failed to establish that it had a legal nonconforming right to operalte an auto body repair and paint shop on the subject premises.

Section 50 of the Zoning Ordinance of the village, in effect in 1954 and 1955 (as certified by the Village Clerk), regulating uses in a business district, provided that ‘£ no building shall be erected, altered or used and no lot or premises shall be used except for one of more of the following purposes: ’ ’ The section continued by enumerating various permitted uses, but not including a use as an autompbile body repair and paint shop. Thus, at that time, the use of the new structure as an auto body repair and paint shop without prior approval of the village Board of Zoning Appeals was not a permitted use under the ordinance.

Supportive of the fact that use as an auto body repair and paint shop was not a permitted use under the ordinance in effect at the time the application for a building permit was made is the previously mentioned inscription on the face of the certificate of occupancy.

In my view, there is a distinction to be made between the use of the structure as a gasoline filling station and the use as an automobile body repair and paint shop. Concededly, the gas station use was a valid pre-existing nonconforming nse. However, use as an automobile body repair and paint shop enjoyed no such status. The legality of the latter use necessarily was to be determined independently by the provisions of the ordinance in effect at the time that use was commenced in 1954-55. As indicated, use as an auto body repair and paint shop was not a permitted use in 1954-55. That use, therefore, had no valid inception. Moreover, it never had acquired a valid nonconforming status as had the gas station use.

Nor can the use in question be recognized upon the theory that the auto body repair and paint shop use was an extension of the valid pre-existing nonconforming gas station use. This is so because, as already noted, the two uses are wholly dissimilar in scope.

. Even assuming, arguendo, that the proposed use was compatible with the pre-existing nonconforming use, which it was not, the use in controversy in any event must be deemed an invalid extension or enlargement of the pre-existing nonconforming gas station use. This could not be done without a variance. However, this issue is not before the court on the present appeal.

Additionally, it appears to be conceded that, by reason of the amendment of the ordinance in 1950, the granting of a building permit for the erection or enlargement or extension of the preexisting automobile service station,was illegal and that no rights were acquired under the permit, which went beyond the provisions of the zoning ordinance (Matter of Jahn v. Town of Patterson, 23 A D 2d 688; Matter of Jayne Estates v. Raynor, 22 N Y 2d 417; Marcus v. Village of Mamaroneck, 283 N. Y. 325; Matter of B & G Constr. Corp. v. Board of Appeals of Vil. of Amityville, 309 N. Y. 730).

I do hot agree with the finding of the Special Term ‘1 that an auto body repair shop was a public garage and a permitted use in 1954^55.” That finding is predicated upon a hypothesis not in conformity with the factual background of the proceeding.

For all of the reasons above set forth, it is my opinion that the judgment should be reversed insofar as appealed from and the proceeding dismissed as to. the appellants.

Benjamin, J., concurs with Shapiro, Acting P. J.; Gulotta, J., concurs in an opinion; Brennan, J., dissents and votes to reverse the judgment insofar as appealed from and to dismiss the proceeding as to appellants, with an opinion, in which Christ, J., concurs.

Judgment of the Supreme Court, Nassau County, entered April 23, 1971, modified, on the law, by (1) limiting the annulment therein, of appellants’ determination, to the two bays used for automobile repair purposes prior to the 1957 amendment to the Zoning Ordinance of the Village of Cedarhurst, (2) likewise limiting to those two bays the adjudication in the judgment granting the lawful nonconforming use status, and (3) adding a provision thereto dismissing the proceeding as to the appellants insofar as it is with respect to the bay which was used for gas station purposes. As so modified, judgment affirmed insofar as appealed from, without costs.