Matter of Alfie's Fish Chips
v.
Zoning Bd.

Appellate Division of the Supreme Court of New York, Third DepartmentFeb 11, 1971
36 A.D.2d 664 (N.Y. App. Div. 1971)

February 11, 1971


Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Saratoga County) to review a determination of the Zoning Board of Appeals of the City of Saratoga Springs which sustained a revocation and rescission of petitioner's building permit by the city's building inspector, on the ground that the real property in question was zoned residential and not business. The parcel subject to dispute is triangular in shape, bounded on the north by West Circular Street, on the southeast by Ballston Avenue and on the west by Hamilton Street. The zoning ordinance of the City of Saratoga Springs, adopted July 6, 1961, lists various classes of districts, as shown on two maps made a part of the ordinance. It was provided therein that every zoning ordinance, every amendment thereto and every map incorporated therein shall be entered in the minutes of the city council and published and posted as specified. One of the maps incorporated into the ordinance showed said tract as being zoned within a business district and the record indicates that the zoning district therefor has never been amended. Petitioner was not required to use and rely upon an unofficial map not a part of the ordinance and the intention of the city council cannot override the clear provisions of the ordinance itself, especially since a zoning ordinance is to be strictly construed against the city, not the property owner ( Thomson Ind. v. Incorporated Vil. of Port Washington North, 27 N.Y.2d 537, 539; Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N.Y. 298, 304). There was no substantial evidence to support the determination under review. Determination annulled and matter remitted to the Zoning Board of Appeals of the City of Saratoga Springs for further proceedings not inconsistent herewith, with costs. Herlihy, P.J., Reynolds, Greenblott and Cooke, JJ., concur; Sweeney, J., not voting.