Opinion
December 30, 1953.
Present — Nolan, P.J., Adel, MacCrate, Schmidt and Beldock, JJ. [ 204 Misc. 746.]
Petitioner appeals from a final order dismissing his petition for an order, pursuant to article 78 of the Civil Practice Act, to review a determination made by respondents, constituting the zoning board of appeals of the town of Somers. Petitioner, the owner of land zoned for business by the town zoning ordinance, sought a permit for the construction of a "motel" upon such property. His application was denied by the town building inspector and that decision was affirmed by respondents, on the ground that a motel was not a use permitted in a business district by the ordinance. The ordinance permitted a "boarding house" or an "inn" in such a district and although appellant conceded that the structure which he proposed to erect would not be used as a boarding house, he contended that it would constitute an "inn" within the meaning of the ordinance, or a hotel, which term the parties agree is synonymous with "inn". The court at Special Term held that a "motel" is not an "inn" within the meaning of the ordinance, which, at the time respondents' determination was made and prior thereto, did not define "inn" or contain any reference to "motel". Immediately prior to the return day of appellant's application at Special Term, an amendment to the ordinance became effective, which apparently was not called to the attention of that court. Said amendment affected the pertinent section of the zoning ordinance by adding the following: "The terms `boarding house' and `inn' as used herein, shall not include `motel' or `tourist camp'." Order unanimously affirmed, with $10 costs and disbursements. The amendment referred to resolves all doubt on the question presented and is controlling here. ( Matter of Boardwalk Seashore Corp. v. Murdock, 286 N.Y. 494; Matter of Cherry v. Isbister, 201 App. Div. 856, affd. 234 N.Y. 607.)