Opinion
November 21, 1955.
Present — Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ.
The plaintiff, Elsinore Property Owners Association, Inc., is a membership corporation organized by persons owning property in a development or section called Elsinore or Shorecrest in the city of Glen Cove. The individual plaintiffs own residences in the development. They appeal from a judgment dismissing the complaint in this action for an injunction to restrain defendant Morwand Homes, Inc., from erecting buildings on specified lots pursuant to building permits; to direct the defendants City of Glen Cove and Howell, the city's building inspector, to cancel building permits and to enjoin them from issuing any permits in violation of the zoning ordinance as applicable to this development. No specific demand was made for money damages. Judgment unanimously affirmed, with one bill of costs. Appellants do not contend that the residences planned or erected by Morwand violate the zoning ordinance in their physical construction or in their use. They urge that the local zoning ordinance, as amended in December, 1952, and effective in January, 1953, prohibits erection of residences if the lot area and side yard requirements of the ordinance are not observed. In 1950, Elsinore Realty Corp., a developer, filed a plat pursuant to sections 32 Gen. City and 33 Gen. City of the General City Law. A performance bond in the sum of $50,000 was duly furnished to insure installation of the required streets and other public improvements. After constructing and selling about twenty-five homes and expending substantial sums on some of the necessary public improvements required by the bond, that developer conveyed the unsold lots to Morwand, by deed recorded on October 20, 1953. There is no contention that any of the buildings constructed and the lots sold by Elsinore Realty Corp. prior to the sale in 1953 violated the then zoning ordinance. However, before the conveyance to Morwand, the zoning ordinance had been amended, effective in January, 1953, whereby the development was placed in a residence R-3 district which required each lot to have a minimum area of 10,000 square feet, a minimum average width of 90 feet, side yards of 15 feet and a maximum land coverage of 20%. Some of the lots acquired by Morwand exceeded the area requirements specified for an R-3 district, but some did not. When Morwand agreed to purchase, it filed an additional $30,000 performance bond. The city council of the respondent city, despite the recommendation of the city's planning board, declined to cancel the original performance bond filed by the original developer. Thereafter, Morwand spent about $40,000 for the required public improvements, built a substantial number of homes pursuant to building permits issued to it and is contemplating the construction of more homes. Some of those homes were built on lots which do not conform to the present requirements of an R-3 district as to area, minimum average width or side yards. The ordinance provides that lots "which do not conform to the regulations for the district in which they are located in respect to area or yard dimensions shall not, for the purposes of this Ordinance, be considered non-conforming" (Glen Cove Zoning Ordinance, § 14). A nonconforming use may continue after enactment of prohibitory zoning only where enforcement would cause loss of a property right "too substantial to justify its deprivation in light of the objectives to be achieved by enforcement of the provision" of the amendment. ( People v. Miller, 304 N.Y. 105, 108.) Where an owner has a vested right based on substantial construction or work which took place prior to the amendment of a zoning ordinance, a successor in title succeeds to that right. ( Matter of Caponi v. Walsh, 228 App. Div. 86, motion for leave to appeal denied, 228 App. Div. 818.) Municipal planning and zoning, while closely akin, are not identical. The former is the broader term. The type of municipal development planning provided for in sections 32 Gen. City and 33 Gen. City of the General City Law was a new field of legislation comparable with the development of zoning laws and regulations. ( Matter of Brous v. Smith, 304 N.Y. 164; Village of Lynbrook v. Cadoo, 252 N.Y. 308, 314.) In part, its purpose was to preserve a uniform and harmonious development of the municipality "and to prevent the individual owner from laying out streets according to his own sweet will without official approval." ( Village of Lynbrook v. Cadoo, supra, p. 314.) A city "conditions its approval of such construction upon his compliance with reasonable conditions designed for the protection both of the ultimate purchasers of the homes and of the public." By regulating subdivision of land, the municipality may avoid being saddled with an onerous burden involved in the completion or installation of necessary street and sanitation facilities. ( Matter of Brous v. Smith, supra, pp. 170, 169.) In our opinion, the original developer which furnished a performance bond and expended a substantial sum on required improvements, and which was not in default when the amendment was enacted, had a vested right to complete the development as planned, notwithstanding the area amendment of the zoning ordinance. Therefore, because Morwand had the right to continue to develop, the complaint was properly dismissed. Moreover, appellants established no special damage which they have or may sustain by the erection of dwellings on the lots as shown on the plat. However, the finding that the appellants were guilty of laches is disapproved, as is the finding that prior to the service of the summons they made no protest that Morwand had no right to build upon the lots, the dimensions of which were less than the zoning ordinance specified, and contrary findings are made. ( Marcus v. Village of Mamaroneck, 283 N.Y. 325.)