Summary
zoning ordinance-storage of automobiles and parking distinguished
Summary of this case from Tamton Enterprises, Inc. v. Taxation Div. DirectorOpinion
Argued January 16, 1935
Decided February 26, 1935
Appeal from the Supreme Court, Appellate Division, First Department.
Paul Windels, Corporation Counsel ( Paxton Blair and Seymour B. Quel of counsel), for appellant. Edwin DeT. Bechtel, Leslie D. Dawson and H. Henry Ramm for Murray Hill Association, Inc., amicus curiae. Morris Wasserman and Sol. A. Herzog for Metropolitan Garage Board of Trade, Inc., amicus curiae. Max Shlivek and Charles L. Fleece for respondent. William B. Symmes, Jr., and Harold L. Herrick for Alurion Realty Corporation, amicus curiae.
The Monument Garage Corporation is the lessor of a vacant plot of land approximately 200 feet in depth and abutting on both Fifty-ninth street and Fifty-eighth street in the borough of Manhattan. An application to the President of the borough for a permit to lower the curb for the purpose of providing a carriageway across the sidewalk of both streets was rejected. Alleging that the rejection was arbitrary and illegal, the applicant asked a mandamus order to compel the President of the borough to issue the permit. A final order has been granted after all disputed questions of fact have been resolved in favor of the applicant upon the trial of an alternative mandamus order.
The applicant intends to conduct upon its land the business of "parking" motor vehicles. It seeks the permit for the purpose of providing a means of access for such motor vehicles to the land. The Borough President urges that such use of the land would constitute a violation of the Zoning Ordinance of the city of New York. A refusal by a public officer to issue a permit which is intended solely to promote an illegal purpose, detrimental to the public, cannot be regarded as an arbitrary act. ( Matter of Dr. Bloom, Dentist, Inc., v. Cruise, 259 N.Y. 358.) The question of law here presented is whether the use by the applicant of his land as a "parking space" for automobiles is prohibited by the Zoning Ordinance.
The portion of the applicant's land which abuts upon West Fifty-eighth street is in a business district, while the portion of the applicant's premises which fronts upon West Fifty-ninth street is in a residence district. The Zoning Resolution provides that "in a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of the following specified trades, industries or uses" (See New York Code of Ordinances, Appendix B, § 4). There trades, industries and uses not specifically prohibited are permitted. Subdivision 15 of that section prohibits the use of building or premises for storage of more than five motor vehicles. Concededly no other subdivision could be construed as a prohibition of the use of premises for a parking space. There is a substantial distinction, clearly cognizable, between the meaning of "storage" and "parking." One has a certain degree of permanency, while the other connotes transience. The Zoning Ordinance is in derogation of common law rights to the use of private property. Its provisions should not be extended by implication. Consequently the prohibition of the use of a building or premises for storage of more than five motor vehicles does not include the use of premises as a place for "parking;" i.e., a place for the "standing" of a vehicle, "unattended by a person capable of operating it." (Cf. Vehicle Traffic Law, § 2, subds. 20 and 21; Cons. Laws, ch. 71.) The use for a parking space of that portion of the petitioner's premises within a business district is lawful and the petitioner has a clear legal right to demand a permit to lower the curb on Fifty-eighth street. So we have decided in Matter of Smith v. Levy ( 264 N.Y. 575).
The question still remains open whether land may be used for the parking of motor vehicles in a residence district. While in a business district there is no prohibition against the use of buildings or premises except for specified trades, industries or uses, in a residence district there is a prohibition against the use of buildings or premises for any use other than specified in the Zoning Resolution. By no possible construction do any of the specified uses permitted in the residence districts include commercial parking of automobiles. The argument is advanced, however, that the ordinance does not apply to vacant land. The word "premises" has a broad significance. We may not disregard it. The intent that the Zoning Resolution should apply to every use, whether of buildings or land, in a "use district," clearly appears from the express terms of the resolution, and is instinct in many of its separate clauses. Here there is no room for construction. The ordinance must be applied in accordance with its letter and spirit. The use of the applicant's land within the residence district and abutting on Fifty-ninth street for parking space is illegal, and permit for lowering the curb on Fifty-ninth street was properly refused.
The orders should be modified in accordance with this opinion and as so modified affirmed, without costs.
CRANE, Ch. J., O'BRIEN, HUBBS, CROUCH and LOUGHRAN, JJ., concur; FINCH, J., not sitting.
Ordered accordingly.