O'Brien Transfer & Storage Co. v. Incorporated Village

Action for a judgment declaring that certain real property, located in a business use district, may be used for the purpose of conducting thereon a moving and storage business and that such use does not violate the building zone ordinance of the respondent village, and for injunctive relief (first cause of action), and to declare that said building zone ordinance is unconstitutional, insofar as it attempts to prohibit or restrict the use of said property for the purpose of conducting thereon a moving and storage business (second cause of action). After trial, the court concluded that the first cause of action should be dismissed since the proposed use was not within the scope of those permitted in a business use district and that, as a prerequisite to the commencement of the second cause of action, it was necessary to show that an application for a variance had been denied. The second cause of action was dismissed, “without prejudice”. The appeal is from the judgment entered thereon. Judgment insofar as it dismisses the first cause of action affirmed, without costs. Judgment insofar *691as it dismisses the second cause of action reversed, action severed, and a new trial granted on that cause of action, with costs to abide the event. The proposed use is not within the scope of those permitted in a business use district. An application for a variance cannot be deemed a prerequisite to an attack on the constitutionality of a zoning ordinance where such variance could not be granted (Ulmer Park Realty Co. v. City of New York, 267 App. Div. 291; Town of Cortlandt v. McNally, 282 App. Div. 1072). A variance is not available to appellant because it purchased the property with knowledge that its proposed use was not a conforming one (Matter of Clark v. Board of Zoning Appeals, 301 17. Y. 86, 89; Matter of Corbett v. Zoning Bd. of Appeals, 283 App. Div. 282, 283; Matter of Ardolino v. White, 286 App. Div. 882). Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.