Empire City Racing Ass'n v. City of Yonkers — 132 Misc. 816

Majority

p. 816

In the Matter of the Application of the Empire City Racing Association, Petitioner, for an Order of Mandamus against the City of Yonkers and Others, Respondents.

Supreme Court, Westchester County,

July 31, 1928.

Headnote

Municipal corporations — zoning ordinances — error to revoke permission to erect stable in connection with race track within residential district.

The petitioner maintains a race track within a residential district. Two barns burned and a permit was granted for re-erection. It was error later to revoke the permit on the ground that the barns were to be erected within a residential zone, for so long as the race track is maintained the petitioner may re-erect buildings designed to carry on its business.

Mandamus proceeding.

Brennan, Bryan & Clark, for the petitioner.

Bernard G. McAneny, Corporation Counsel, for the respondents.

The Empire City Racing Association is the owner of the premises in question, and has conducted and maintained thereon for twenty-eight years a race track where race meets are held twice a year. In November, 1927, three barns belonging to the petitioner were destroyed by fire, and the petitioner applied to the building inspector for a permit to erect two new barns in place thereof, not upon the same location, but within the boundary of the premises used as the track.

The application was first granted and, when work had proceeded to a considerable extent, the application was revoked. Petitioner seeks an order of mandamus to compel the issuance of the permit. The permit was revoked upon the ground that, apart from the frontage upon Central avenue and Yonkers avenue, the property has been placed in a residential zone and the erection of barns prohibited.

In view of the fact that at the time of the passage of the ordinance these premises were used as a race track, and the use has not been abandoned, the petitioner could not be denied the right of erecting on the premises buildings designed and used for the conduct of the business. If this property ceases to be used for race track purposes, it is in a residential zone, and none but residences may be erected thereon, but, until its present use is abandoned, buildings of the character in question may be erected within the confines of the property used for track purposes.

It follows that the order should be granted.