Golden City Park Corp. v. Board of Standards and Appeals ( 1941 )

Hagarty, J.

(concurring). While I concur in the result, my opinion is that the order should not be reversed on the ground that a vested right was not acquired by the petitioner prior to the zoning amendment. A permit was issued to the petitioner on October 14, 1938. The planning commission did not adopt its resolution to amend the zone, changing it from business to residence use, until October 26, 1938. The board of estimate, by affirmative action, approved the change on November 17, 1938. In Matter of Fox Lane Corporation v. Mann (216 App. Div. 813; affd., 243 N. Y. 550) the improvement prior to the change of zone was in the blue print stage only. On the other hand, in People ex rel. Ortenberg v. Bales (224 App. Div. 87; affd., 250 N. Y. 598), in the interim between the granting of the permit and the zoning amendment, the petitioners partially excavated for a foundation, and it was held that by so doing they had acquired a vested right. In that case the Fox Lane case was distinguished on the ground that nothing whatever had been done on the premises.

It is undisputed in the present case that, prior to the passage of the resolution by the planning commission on October 26, 1938, the property was improved and prepared for the carousel by a fill of the value of $10,000. It is also undisputed that, on and prior to October 21, 1938, foundation piles on the new site were driven. Thus substantial work on the property in connection with the erection of the carousel had been done prior' to the passage of the resolution by the planning commission. After that time, and up to the taking effect of the zone change on November seventeenth, by virtue of the affirmative approval of the board of estimate, other work was performed inclusive of the placing of the carousel on the foundation. The authority of Matter of Tralaw Realty Corp. v. Murdock (261 App. Div. 173), even if it were to be followed, is inapplicable. There the work on the property, held not to have been done in good faith, was performed after the passage of the resolution changing the zone and only forty-eight hours prior to its effective date. Prior to the adoption of the resolution to change the zone by the planning commission, at least, the right of the owner to devote the property to a conforming use cannot be questioned.

There should, however, be a reversal of the order predicated on the ground that the permit violated the provisions of the Administrative Code dealing with fire limits. Section C26-247.0 of the Administrative Code provides that within the fire limits it shall be unlawful to construct frame structures of wood, except as otherwise specifically provided in that title (Building Code). There are express exceptions which are immaterial in this case. Section C26-543.0, upon which the petitioner relies, does not specifically except miscellaneous wood frame structures, including amusement devices, from the provision as to fire limits, but merely provides that they shall be constructed in accordance with plans approved by the superintendent. A plausible argument, however, is that, although there is no specific exception, it is implied, since the fire limits, as set forth in section C26-246.0 of the Code, include “ All of the city,” save as to comparatively minor exceptions. Nevertheless, in the light of the language of section C26-247.0 and the failure to provide a specific exception as to fire limits with respect to miscellaneous wooden structures, a construction is required that section C26-543.0 relates to the erection of such wooden structures as are permissible only in those isolated areas and to exceptions which are not within the fire limits. I favor a strict construction of the Administrative Code in that respect, involving, as it does, the subject of fire hazards.

Order, entered on reargument, adhering to the original decision which annulled the determination under review and denied appellants’ motion to dismiss the certiorari order, reversed on the law and the facts, with fifty dollars costs and disbursements, motion granted, proceeding dismissed, and the determination' of the board of standards and appeals reinstated and confirmed.

The appeal from the original order is dismissed, without costs.