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VICTOR FLAX ET AL. v. CITY ROME (07/31/68)

SUPREME COURT OF NEW YORK, ONEIDA COUNTY 1968.NY.42760 <http://www.versuslaw.com>; 293 N.Y.S.2d 855; 57 Misc. 2d 905 July 31, 1968 VICTOR FLAX ET AL., DOING BUSINESS AS COPPER CITY SCRAP COMPANY, PLAINTIFFS,v.CITY OF ROME, DEFENDANT Abelove, Siegel & Abelove for plaintiffs. Edward J. Tyler, Corporation Counsel, for defendant. Richard J. Cardamone, J. Author: Cardamone


Richard J. Cardamone, J.

Author: Cardamone

 The plaintiffs seek a permanent injunction against the defendant, the City of Rome, New York, claiming that the imposition of the setback provisions of the said city's Ordinance No. 3215A results in the taking of plaintiffs' property without due process of the law and is, therefore, unconstitutional as applied to plaintiffs.

At the trial plaintiffs and defendant entered into a stipulation of facts, the pertinent parts of which state that plaintiffs Flax and Chard purchased 202 Davis Ave., which are the premises in question, and 309-311 James Street, Rome, New York, from one Weinkertz on July 31, 1953. Weinkertz had operated the premises as a junkyard under the name of Copper City Scrap Company. Plaintiffs were issued a certificate of occupancy on October 19, 1953 and continued the junkyard operation as a nonconforming use. The present zoning is M-2 Manufacturing. On December 15, 1965 the City of Rome passed Ordinance No. 3215A (entitled "Regulating Automobile Junk Yards") which requires a 60-foot setback for fences (§ 10) and a 60-foot setback for buildings (§ 11). A license was granted by the city to plaintiffs from February to September 1966 to operate the premises as a pre-existing, nonconforming use. In September, 1967 plaintiffs petitioned for a waiver of the setback provisions of Ordinance No. 3215A which was denied by the Common Council of the city on December 20, 1967. By letter dated December 21, 1967 the plaintiffs were given 30 days to cease operating an auto junkyard on the premises. On January 17, 1968 a preliminary injunction was granted by this court (Farnham, J.) against the city enjoining it from taking any further action against the plaintiffs in enforcing City Ordinance 3215A pending the trial.

A trial was held on June 25 and 26, 1968 at which plaintiff Flax and other witnesses for the plaintiffs and for the city, including experts, appeared and testified. After carefully reviewing this evidence, this court finds the following facts:

1. The plaintiffs are Victor Flax and Dominick Chard, together doing business under the assumed name of Copper City Scrap Company. Their business is located in the southeastern or inner section of the City of Rome in an area close to the New York State Barge Canal.

2. There are other businesses located in the immediate area of the plaintiffs' business, representative of which are, Rome Iron Mills, Nolan-Hayes Fuel Company, Glo-Gas Propane Gas Company, Parry-Fox Fuels and Prossner & Sons.

3. These firms create a high level of noise due to the nature of their business.

4. There are a number of residences in the area, all of which were present at the time Copper City Scrap Company commenced its business.

5. No new homes or industries have moved into the area subsequent to the time when the plaintiffs commenced their auto scrap business.

6. The plaintiffs' property, consisting of two parcels which are separated by Louisa Street, comprises approximately one acre of land bounded by Jane Street on the north and Davis Avenue on the south.

7. Since purchasing the property plaintiffs have fenced in this property and have deposited hard fill there as well as resurfacing approximately 75% of the area with concrete. There are present on the property two buildings, both of wood construction, one of which serves as an office and the other of which serves as a warehouse for parts.

8. If the setback prescribed by the City Ordinance 3215A is enforced on all sides of the property there will remain only 4.6% of the land available for use in the conduct of the plaintiffs' business, which is insufficient to continue the existing business. If the setback is enforced on all sides except the side fronting on the New York State Barge Canal, there would remain available 22.7% (6,900 square feet) of land to be used by plaintiffs.

9. The plaintiffs' land is not suitable for residential use and there is insufficient traffic generated there to make it profitable for any retail stores or a shopping center. . The premises lie so close to the New York State Barge Canal that they would not, under presently existing conditions, be a desirable area for new residences to be built.

11. The land may have a possible use for industrial or business purposes presently established there, for example, fuel storage, cement storage, the products of which are transported on the Barge Canal, although the value of the premises would be affected by its small size. Insofar as the expansion of other existing businesses in the area to include this property is ...


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