SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 10, 1968
IN THE MATTER OF ANDGAR ASSOCIATES, INC., APPELLANT,
BOARD OF ZONING APPEALS OF THE INCORPORATED VILLAGE OF PORT WASHINGTON NORTH, ET AL., RESPONDENTS
Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
In our opinion, the stipulations and the 1962 judgment constitute, in general, a legitimate compromise of conflicting claims and interests. Petitioner's predecessors, by their allegation of the incurrence of expenditures in reliance upon the approval by the village of the comprehensive plan, made out a prima facie case for the relief demanded by them in the 1961 preceeding (Telimar Homes v. Miller, 14 A.D.2d 586, mot. for lv. to app. den. 10 N.Y.2d 709; Elsinore Property Owners Assn. v. Morwand Homes, 286 App. Div. 1105). We are further of the opinion that the stipulations and the 1962 judgment may be construed as purporting to vest the right to build two-family homes. It is conceded that a two-family house was a permitted use under the zoning ordinance prior to July 5, 1961. In addition, such a house was in accordance with the comprehensive plan. It is undisputed that the area in question was designated "residence" or "residential". Such a designation must be deemed to include two-family houses. Evidence as to whether or not petitioner's predecessors intended at the time to build such homes may not be considered. An instrument is to be construed in the light of the intent of the parties as expressed in the instrument(Brainard v. New York Cent. R. R. Co., 242 N. Y. 125). However, in our opinion, the stipulations, insofar as they purport to vest such a right are void for the reason that the village did not possess the power to vest such a right. The rule in New York is that a vested right such as is involved herein inures to a property owner only where work of a substantial character has been commenced on the property(Matter of Fox Lane Corp. v. Mann, 216 App. Div. 813, affd. 243 N. Y. 550; People ex rel. Ortenberg v. Bales, 224 App. Div. 87, affd. 250 N. Y. 598; Matter of Caponi v. Walsh, 228 App. Div. 86). The cases generally require actual construction resulting in a tangible change in the land (2 Rathkopf, Law of Zoning and Planning [3d ed.], p. 57-10). In the 1961 proceeding petitioner's predecessors made no allegation that any work had been commenced specifically in the expectation of constructing two-family homes. On the contrary, as quoted above, while the answer particularized the various uses for which water and sewer lines and roads were installed, two-family houses were not mentioned. Therefore, petitioner's predecessors established no grounds to justify the vesting of such a right. Under the circumstances, the granting of this right by the village constituted a gratuitous act and an abrogation of its duty to maintain control over this facet of zoning in the area. While a municipality possesses the inherent right to compromise a claim against it, it may not, under the guise of a compromise, impair a public duty owed by it or give validity to a void claim (15 ALR 2d 1365, 1369-1370). Municipal corporations have no power to make contracts which will embarrass or control them in the performance of their legislative powers and duties(City of New York v. Second Ave. R. R. Co., 32 N. Y. 261, 271). The entry of the consent judgment could not breathe life into that portion of the stipulations which was absolutely void (38 Am. Jur., Municipal Corporations, § 727). We hold, therefore, that petitioner does not have a vested right to construct two-family homes and that the application for the issuance of the building permit herein was properly denied.
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