Summary
In Allen v. Adami, 347 N.E.2d 890 (N.Y. 1976), the New York State Court of Appeals confronted a similarly worded exception to the lot area restrictions in an analogous factual situation.
Summary of this case from In re Appeal of WeeksOpinion
Argued February 10, 1976
Decided April 8, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ANTHONY J. CERRATO, J.
Seymour M. Waldman and Louis Waldman for appellants. Norman Sheer for intervenors-appellants.
William Cohen for respondents.
Petitioners Charles and Lucretta Allen are the owners, as tenants by the entirety, of two contiguous parcels of land in a residential area of the Village of Croton-on-Hudson. Lot 8 was purchased from Morton Weinerman on September 12, 1962, and Lot 8A from Nathan Frankel on October 29, 1962. Lot 8 is improved with a single-family residence. Lot 8A, an unimproved parcel, is substandard under the current zoning ordinance which was enacted by village board of trustees on December 14, 1961. Hoping to develop this parcel themselves or to sell it for development, petitioners, in September, 1973, applied to the Zoning Board of Appeals for a special exception pursuant to section 5.1.7 of the ordinance. That section, as relevant here, provides as follows: "A lot owned individually and separately, and separated from any adjoining tracts of land on January 22, 1962, which has a total area or width less than prescribed herein may be used for a one-family residence in RA Districts and a two-family residence in RB Districts, provided such a lot shall be developed in conformity with all applicable district regulations, other than the minimum lot area and lot width requirements, and with the minimum side yards set forth below". Petitioners take the position that, having shown that Lot 8A was owned individually and separately on January 22, 1962, they were entitled to the requested special exception. The Board of Zoning Appeals and the intervenors, while conceding separate and individual ownership of Lot 8A on January 22, 1962, contend that section 5.1.7 also requires that the lot be owned separately and individually at all times subsequent to that date, up to and including the date application for a special exception is made.
The ordinance before us does not clearly provide that common ownership arising subsequent to January 22, 1962 would effect a merger rendering the exception permitted by section 5.1.7 inapplicable to such commonly held adjacent parcels. Had the village intended to impose such a condition on the exception, it could easily have done so. (Matter of Soros v Board of Appeals of Vil. of Southampton, 50 Misc.2d 205, 208, affd without opn 27 A.D.2d 705.) Since zoning regulations are in derogation of the common law, they must be strictly construed against the municipality which has enacted and seeks to enforce them. (Thomson Ind. v Incorporated Vil. of Port Washington North, 27 N.Y.2d 537, 539; Matter of 440 East 102nd St. Corp. v Murdock, 285 N.Y. 298, 304.) Any ambiguity in the language used in such regulations must be resolved in favor of the property owner. (Matter of Turiano v Gilchrist, 8 A.D.2d 953, 954.) Therefore, since this ordinance does not clearly provide that adjacent substandard parcels must continue to be separately owned to qualify for the exception, we hold that the petitioners were entitled to the special exception upon a showing that Lot 8A was owned individually and separately on January 22, 1962.
A contrary holding could lead to a rule that a substandard parcel merges into an adjoining parcel when both come into common ownership unless the ordinance creating the special exception specifically provides to the contrary. Neither the case law nor sound public policy permits such a rule. A merger is not effected merely because adjoining parcels come into common ownership. (Hemlock Development Corp. v McGuire, 35 A.D.2d 567.) The contrary view would undermine the many cases which have held there to be no merger in the absence of a specific merger clause. (E.g., Matter of Soros v Board of Appeals of Vil. of Southampton, 50 Misc.2d 205, 208, affd without opn 27 A.D.2d 705, supra; Matter of Feldman v Commerdinger, 26 Misc.2d 221, 222; Matter of Fina Homes v Beckel, 24 Misc.2d 823.) Indeed, were that the rule, there would be no need for the specific merger clauses found in such cases as Matter of Vollet v Schoepflin ( 28 A.D.2d 706), Matter of Faranda v Schoepflin ( 21 A.D.2d 801) and Matter of Creamer v Young ( 16 Misc.2d 676).
Accordingly, the order of the Appellate Division should be affirmed.
The majority relies upon cases invoking ordinances with language quite different from that involved in this case. With the analysis of those cases I have no disagreement.
Section 5.1.7 of the Zoning Ordinance of the Village of Croton-on-Hudson in pertinent part provides: "A lot owned individually and separately, and separated from any adjoining tracts of land on January 22, 1962, which has a total area or width less than prescribed herein may be used for a one-family residence in RA Districts and a two-family residence in RB Districts".
Read in accordance with its syntactical construction, the ordinance prescribes two standards for an exception: (1) the lot must be owned individually and separately, and (2) the lot must have been separated from any adjoining tracts on January 22, 1962. True, where a contrary intent or an absurd result would otherwise follow, strict rules of grammar and punctuation will be disregarded (see McKinney's Cons Laws of NY, Book 1, Statutes, §§ 251, 253). The ordinance should, however, be read as it is written and the court should not "rearrange the wording" of the ordinance (see Allen v Minskoff, 38 N.Y.2d 506, 511). The use of the comma before the conjunction "and" indicates that the first clause imposes a requirement separate and independent from that imposed by the second.
The proper syntactical rendering of the ordinance makes sense. Cases in which courts have reconstructed the syntax or punctuation of a statute did so because the statutory language was deficient in making its meaning clear (see, e.g., Matter of Brooklyn El. R.R. Co., 125 N.Y. 434, 444-445, where to make legislative sense a comma was "removed"). That is not the situation here.
Judges GABRIELLI, WACHTLER and COOKE concur with Judge JASEN; Chief Judge BREITEL dissents and votes to reverse in an opinion in which Judges JONES and FUCHSBERG concur.
Order affirmed, with costs.