Opinion
June 28, 1967
Appeal from an order and judgment of the Supreme Court, Albany County, which, at the close of plaintiff's case, dismissed the complaint as to all causes of action and removed a temporary restraining order and temporary injunction in this action to enjoin the violation of a zoning ordinance. Defendants, owners of three acres of land near Elm Avenue in an area of the Town of Bethlehem classified as a Rural District — "Not Zoned", in June, 1966 commenced construction of what was intended to be a mushroom plant including excavations, footings and some foundation walls. Thereafter and on August 10, 1966 the zoning ordinance was amended changing the property in question to a residential area excluding mushroom plants therefrom. A copy of the amendment was served on the defendants and this action was commenced on August 18, 1966. Plaintiffs alleged three causes of action in their complaint, one of which has not been raised upon appeal. The remaining causes contended for by plaintiffs are (1) that defendants failed to apply for a permit for a mushroom plant which is a noxious industrial process requiring a special permit under the original zoning ordinance and (2) that defendants violated or will violate the amended ordinance which prohibits a mushroom plant. At the conclusion of the plaintiffs' case the entire complaint was dismissed. Article V of the Zoning Ordinance entitled "Permitted Uses" includes in pertinent part "Special Permit Uses Applicable to the Entire Town: No building or land shall be used and no building shall be structually altered which is arranged, intended or designed to be used for any of the following purposes, except on special permit". Thereafter follows a list of uses including "Riding or Boarding Stables", "Duck Farms and Piggeries", "Abattoir, Meat Packing, Distillation of Bones, Fat Rendering and Manufacture of Tallow, Greases and Oils, Fertilizer Manufacture, Hair Manufacture, Offal or Dead Animal Reduction, Stock Yards", and "Any industrial process emitting dust, odor, gas, fumes, noise or vibration comparable in character to or in aggregate amount equalling that of any use specified above in this subdivision." Plaintiffs' proof consisted of describing the operation of two mushroom plants in other townships which used horse manure and gave off offensive odors. We do not decide the question whether a mushroom plant can ever be an "industrial process" within the meaning of the above ordinance, but we agree that it was not shown to be such in this case. In addition, the proof presented was hypothetical as to the operation of defendants' proposed plant. At the time of the trial, construction was not complete and defendants had not begun operation of their plant; there was no showing that the instant plant would be used in any way which would produce odors or otherwise be offensive. The trial court was therefore correct in dismissing the first cause of action. The third cause of action, however, should have been sustained. It is conceded that a mushroom plant is a prohibited use in a residential zone under the amended ordinance. Any claims of nonconforming use are matters of defense. With respect to nonconforming uses, the Zoning Ordinance states, in article XIX: "Nothing herein contained shall require any changes in the plans, construction or designed use of a building actually under construction at the time of the passage of this Ordinance or for which a building permit has heretofore been issued; provided the entire buildings shall be completed within one year from the date of the passage of this Ordinance. If an amendment to this Ordinance is hereafter adopted incorporating additional areas in the Zoning Map or changing the boundaries of district; the provisions of this Ordinance with regard to existing buildings or uses of premises, or buildings under construction, or building permits, previously issued, shall apply to existing buildings or adjacent premises, or buildings under construction or permits previously issued in the area affected by such amendment." (Emphasis added.) There appears to be no dispute that defendants' building was "actually under construction" prior to the prohibitory amendment and construction was suspended because of the advice and action of plaintiffs. A nonconforming use if valid and established exists as a vested property interest even after enactment of an ordinance prohibiting such use (see People v. Miller, 304 N.Y. 105, 107-108). However, defendants' commitments, "designed use" and proposed operation are wholly within their knowledge and no evidence has been adduced concerning these matters. Issues also exist on the question of whether a mushroom plant could be established without a special permit under the ordinance as it read prior to the amendment. Questions of fact therefore remain as to those issues and require further appropriate proceedings (see People v. Miller, supra; Matter of Glenel Realty Corp. v. Worthington, 4 A.D.2d 702, app. dsmd. and mot. for lv. to app. den. 3 N.Y.2d 924; Matter of Caponi v. Walsh, 228 App. Div. 86, 89). Order and judgment modified, on the law and the facts, so as to reverse the dismissal of the third cause of action, and, as so modified, affirmed, with costs to abide the event, and a new trial ordered. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.