Pete-Lor, Inc. v. Haber , 39 A.D.2d 40 ( 1972 )

Shapiro, Acting P. J.

The Board of Trustees of the Village of Cedarhurst appeal from so much of an order of the Special Term, Nassau County, as (1) annulled their determination that the petitioner’s use of its building was not a legal nonconforming one and (2) adjudged that such use was a legal nonconforming one.

The subject premises were constructed late in 1954 or in 1955 as an additional building to a gasoline service station. The station had been in existence at the southwest corner of Prospect Street and Central Avenue in the Village of Cedarhurst for many years. In 1950 an amendment to the local zoning ordinance prohibited automobile filling or service stations, or enlargements thereto, having a frontage on Central Avenue. In 1954 the owners of the gas station applied for a building permit for this additional building, to be used for ‘ ‘ gas station and kindred facilities.” The permit for the building, which was to contain three bays, was issued in April, 1954.

By late 1955, two of the three bays were being used as an auto body paint and repair shop. The third bay was used for gasoline station purposes. The pivotal point in the case is whether the use of two of the three bays ip. the accessory building for auto repair purposes prior to 1957 Vas valid, thereby conferring upon the petitioner the right to continue such use as a valid nonconforming one.

Paragraph (w) of subdivision 1 of section 50 of the zoning ordinance in existence at the time in question authorized a ‘ ‘ public garage ” use. Such use was defined in subdivision (p) of section 10 of the ordinance as “ a building, other than a private garage, one or more stories in height, used for storage or repair of automobiles ” (emphasis supplied). Hence, it appears that the property was Validly used as an, auto body and paint shop. Such use was not outlawed until 1957.

The building permit was issued upon an application fot- accessory use to an automobile service station and for 1 ‘ kindred facilities ”. As noted, use of the accessory building for service station purposes was invalid under the zotiing ordinance; However, notwithstanding such invalidity, two thirds of the property was used lawfully. This is not a case in which a party seeks to justify an otherwise improper permit, but rather one in which the permit erroneously permitted an invalid use and in which two of the three bays in the building were nevertheless put to a use consonant with the applicable zoning ordinance.

Further, the building permit was not itself wholly invalid. It could not, of course, confer a valid right to use any of the bays for automobile service station purposes. Two of the three bays, however, were used validly pursuant to the permit, which authorized a use for facilities kindred to a gds station. A ‘ ‘ public garage ” should be regarded as such a use. Hence, two of the bays in the accessory building were lawfully used pursuant to the zoning ordinance and pursuant to a building permit which was valid, at least insofar as those two bays were concerned.

The certificate of occupancy, issued in April, 1955, provided: “ Special applications & approval req’d for heavy body & fender work, spray painting and any other use not incidental or accessory to a gasoline service station. ’ ’ This requirement was apparently imposed in the mistaken belief that gasoline service stations were permitted uses, but that auto body shops were not. In fact the opposite was true. The failure to obtain the required approval pursuant to the requirement of the certificate of occupancy (which approval was not necessary under the statute) does not serve to render invalid the otherwise lawful use so as to undo a right based upon a prior conforming use (see Anderson, Zoning Law and Practice in New York State, § 6.10).

Our finding of a lawful nonconforming use as to bays two and three will not sterilize the first bay. The various bays on the premises have been used independently in the past. However, in view of all of the circumstances, we are of the opinion that, if applied for, a variance should be granted to legitimatize use of the remaining bay.

Hence, the judgment should be modified, on the law, by (1) limiting the annulment therein, of the 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 purpose; and, as modified, the judgment should be affirmed insofar as appealed from, without costs.