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Home My WebLink About68 ZONII G H4 4R n Olt APPR 1I,4 Town of Rye, R. Y. Mr . Jamer Neilsen 12 Hillereet Avenue Wort Oaester, T. ". Dear _r. eilsen: Attached is a true copy of the resolution of the Wing Board if A ;pccls, adopted p:r auaruo, an 7ov tuber 3th, 1948, after due consideration of the appeal of Neils V. AnFen from your denial of his appliontion for an occupancy certificate for a greenhouse erected on the premiser on the south side of Betsy 3rovn Road and desigr3ted on the Assessment op of the Town of Eye as Section 1, BloeK 6, Lot 25 3 W . The resolution providor, a^ will appear thereon, that you are directed to ierue in writing an occupancy certificate for said greenhoure eubject to the conditions therain stated; that ip : 1 . That the said Neils V. Hansen, hie rucacee ors qnd assigns, and their agents, servante and employees shall net attach said greenhouse to the heating system contained in the old greenhouse ex etinr on said promisee or to any enlarge- ment of saIJ heating system. That the said Neils i. Qnson, his ruccorsors and assigns, and their ngentp , Pervents and employees shall not install in Paid greenhouse any heating rystem that will throw off sn: smote or fawas . Respectfully- yours, Tecr�etary 10 ZOINTWO BOARD OF A?WEALS Town of Rye, T.Y. Attached in an extract from the ciii.nuten of a melting of the Zoning Board of Appear of the Torn of Ryo. field at the Town Rooms, 10 ?earl Street, fort Cherter, Nev, Fork, on the 8th day of November, 1948. I hereby certify that the attached reQolution is a true copy of the resolution adopted by th:- oning Board of 41ppealp of the 4oxn of Rye at a meeting, per quorum, held at the Town Rooms in the Town isll, 10 2earl 6treet, Port Chester, Yew Yore, on the eta day of November, 1946, Cecretary of the "oning Board of %p�,oals . Torn of pye Upon motion of Irving E. Ferris, Jr. seconded by Charles C. smith, the following resolution was adopted: t WHEREAS, Mils V. Hansen having filed with this Hoard and with the Building Inspector of the Town of Rye a notice of appeal from the decision of the Building Inspector denying the application for an occupancy permit for a green- house erected on the premises on the south side of Betsy Brown Road and designated on the assessment reap of the Town of Faye as Section 1, Block 6, Lot 25B19; and WHEREAS, the Zoning Board of Appeals having fined the date Monday, November 8, 194E at 8 o' clock at the Town Board Rooms at 10 Pearl Street, Port Chester, New York, to meet and consider the appeal of said Neils V. Hansen; and WHEREAS, notice that t-ie Zoning Board Of Appear of the Town of Rye would hold a public hearing on the 8th day of November, 1948 at the Town Board rooms, 10 Pearl Street Port Chester Now York at 8 o'clock P.M to cones i, sider the appeal of said Neils V. Hansen, having been pub. lisped on October 29, 1948 and November 1, 1948 in the Port Chester Daily Item, the official, paper of the Town of Hye and notice of said meeting having been mailed to all parties at least five days before said meeting; and WHEREAS, the Zoning Board of Appeals pursuant to said 4bove mentioned notice waving convened on the pith dRy of November, 1946 at the Town Board Rooms, 14 Pearl Street,, Port Chester, New York, at 8 o'clock P.M. to consider the application of said Neils V. Hansen; arxi WHEREAS, the Building Inspector of the Town of Ry* having appeared at said meeting and presonted to said Board the notice of appeal, his decision denying the occupancy permit to,.ether with the application and plans fojr a building permit and all other papers in his possession ran lating to the hatter before the Board; and o.'MULPAS, Neils V. Hansen having appeaarsd in person and by his attorney Stewart o Rare having; testified in support of his application and presented to the Board a certified copy of the judgment in the case of McCullough vs. Manson, copy of the Findings of Fact and Conclusions of Law, copy of the to s ti.morq in said ease and presented a petition signed by more than 20© property owners and re- sidents in the neighborhood urging the Board to grant the occupancy permit; and WHEREAS, Richard B. Alton and Clifford XaCulljugh appeared in person and opposed the application; and WJU?,HP:AS, a letter from the Community Asaociati.on of the Town of 13ye Opposing said application was rc:celved by the hoard; and WHEMAS, after due consideration of the testimorW and evidence presented to this Board, it is R17.:3OLVLeD8 that James B. Neilsen, Building In- spector of the Town of }qe be directed in writing to issue to Nails V. Hansen an occupancy permit for the greenhouse erected on the premises situated on the southerly sides of Betsy Brown Road and designated on the assessment map of the Town of Faye as Section 1, Block S. Lot 25B19 subject to the following conditions s 1. That the said Nails V. Hansen, his successors and assigns and their agents, servants and employees shall not attach said greenhouse to tr w "eating system contained in the old greenhouse existing on said premises or to ansr enlargement of said boating system* 2. That the said Neils V. Hansen, his successors and asnigns and their agents, servants and enployees ahall not install in said greenhouse any heating system that will throw off any smoke or fumes. ROLL CALLS Yes: Quigel, Ferris, Jr• Smith, Bilas and Wallace No: None THE COMMUNITY ASSOCIATION — TOWN OF RYE POST OFFICE: PORT CHESTER. N. Y. November 5, 1946 Board of Zoning Appeals Town of Rye Port Chester, New York Gentlemen: We refer to the appeal of Mr. Neils V. Hansen to the Board tp direct the Building Inspector to issue a Certificate of Occupancy to him for his recently erected greenhouse. When the erection of the greenhouse was about to begin, the Association contended that it was a violation of the Zoning Ordinance and so informed the Town Supervisor and Counsel. Our opinion was later confirmed in the decision rendered. by Referee Close in the case of Mac Cullough vs Hansen when the Referee declared in paragraph 2 of his "Conclusions of Law" that the erection of the greenhouse was "in viola- tion of Subdivisions (a) , (b) and ( c) of Section 4 of said Ordinance". Although in paragraph 8 of his "Conclusions of Law" Referee Close denied the plaintiff Mae Cullough the right to restrain Hansen from "usin& the greenhouse for experimental purposes and storage, if not heated , our lay opinion is that such conclusion cannot supercede the Ordinance and Building Code. The Code authorizes a certificate of occu- pancy, which must "certify that the building involved conforms to the re- quirements" of the Zoning Ordinance, only "if the building was entitled to such certificate at the time the application was made". As the greenhouse was clearly a violation at all times, obviously it cannot be claimed now that it is entitled to a Certificate of Occupancy. Since there is now no question as to the violation, and even the Town has finally concurred as it refused to allow the Building In- spector to issue the Certificate, we fail to see how the Board of Ap- peals can condone the violation by directing the issuance of a Certifi- cate of Occupancy. While it has the power under the Zoning Ordinance to modify the strict application of the Ordinance, such authority is definitely limited to modifications that remain within the "harmony" and "interests" of the Ordinance so that the "general welfare will be con- served% It cannot be said that the new greenhouse and for that matter the old one with its smoke nuisance, is in "harmony r with a Class A Residential district nor does it conform to "the general purposes and intent of" the Ordinance, a requisite in considering any modification, We further maintain that the Board's power of modification can only apply to variances of the Ordinance lesser than the one presently involved and could not be construed to authorize the extension of a non-conforming use in cases of flagrant violations such as the one at hand. We also direct the Board' s attention to that part of subdivision 2, paragraph c of Section 18 of the Ordinance which limits the ex- tension of non-conforming use to "50 percent of the reproduction value of the existing buildings and shall in any case be undertaken within five years of the enactment of the Ordinance". To say that the Board has this greater authority would in effect give it the power to rewrite the Zoning Ordinance at will. To support Mr. Hansen' s application, the argument may be of- ferred that the greenhouse is up and why prohibit its use. lay we 2 - THE COMMUNITY ASSOCIATION —TOWN OF RYE POST OFFICE: PORT CHESTER, N. Y. point out to the Board that in face of opposition and knowledge that the erection was being challenged, it appears that Mr. Hansen hastened its erection while the Association was vainly trying to get the Town to bestir itself and halt the building pending final legal decision. Such argument, therefore, should not have any bearing on the Boardts consideration of the application of Mr. Hansen. The Association has always felt very strongly on the matter of proper observance and enforcement of the Zoning Ordinance. Nothing will tear down a community faster than lax enforcement and promiscuous variances which would permit heterogeneous buildings and use of property, We trust, therefore, that the Board will consider the case on the intent and general purposes of the Ordinance which was enacted solely for the benefit of all property owners. Very truly yours, The Community Association H. F. Heil, Secretary i WHEREAS the undersigned are owners, occupants or tenants of real property in the vicinity of, adjoinin,-- or surround- inr the greenhouses owned and operated by Neils V. Nansen on Betsy Brown Road, in the town. of Rye, County of Westchester and State of New York, and WHEREAS the said F-reenhouses except the additional Preen- house hereinafter referred to, have been operated on a com mercial basis for many years last past, and KEREAS the said Neils V. Hansen has erected an addi- tional greenhouse on a portion of its said property known as Lot 25, Block 19, Flock 6, Section 1, pursuant to a builo- ing permit bearing No. 68 and issued by James Neilsen, Build- ing Inspector of the Torn of Rye, on the 20th day of October, 1945, and �{ WHEREAS said additional r-reenhouse has been completed at considerable expense and is ready for occupancy, and "T,EREAS it will be a ;-reat ardship upon Neils V. ?Tansean If he is not permitted to occupy and overate the same, and ,77EREAS the occupancy of said additional greenhouse will not impair or damage the real property in the neigh- borhood, and 'XIEREAS the said building inspector has refused to issue a certificate of occupancy for said additional green- house, and WHEFEAS, the said 1tiei.ls V. ?arisen has appealed to the Zoning Board of Appeals, from the decision of the said build�- I in` inspector, refusing said certificate of occupancy, N0'#7, THEREFORE, it is respectfully ur,ed and requested that the Zoning Board of Appeals :-rant and issi,e to the saidi Neils V. Hansen, a certificate of occupancy for said addi- i ,I tional greenhouse. hDated; Aser, 1948., I Name . Address Owner or Tenant Lot IX 7'Iocc No, rLijul,% Q j64A 1,30 y i w tional F-reenhouse. Dated: Oe4eb&r 1948, ,Yame Addrsas Owner or Tenant Lot f � « nn Y\ ;pj d b i 44� I I /� I I1 �I , / r QV__d 0,a /UN- r a � � r •� , '"' fr r�" • M�. �►!�*'� r - r'II r • r sir •�, �y * r+�•r i � 1 1 a m• f/ r ♦/ "�Ir�IfjlrJ �� ! h I ro IF WIFA r =• OP rim ar �. fr 1 i MAN" rr�rl IN r r Or W=wq P-PsW - I , Opp Eq r , t ,a V -,`� ` � }", ` t ��,� r��,.�,"1f,.-•+sy� y .�:r4,141�1\ `'i I-vf. ltlr�r'. "�.•'� �'. '" _ r 7_ v dr 4f cf Prti� T )�I�l\'A 4 . Name Address Owner or Lot and Tenant, T oc ?1-0 1�4 IbV, 13&eL�' 9L 4Z��,( IrL�k4�' r � e i1 I I i is i 1 1lI.wY. InYrr ■+�rlwi r1ti1r� r YrYr r Ilw.rwww�irrrri�.n Ir - ^ w �.rw. y � { w�I I �--.5 � e � IName Address Owner or Lot and Tenant Qe 70. r e ° t, I , c _ WHEREAS the undersigned are owners, oce.upants or tenants of real property in the vicinity of, adjoining or surround- ing the greenhouses owned and operated by Neils V. Hansen on Betsy Brown Road, in the 'Town of Rye, County of Westchester and State of New York, and 'rVHEREAS the said greenhouses except the additional green- house hereinafter referred to, have been operated on a com- mercial basis for many years last past, and WHEREAS the said Neils V. Hansen has erected an addi- tional greenhouse on a portion of his said property known as Lot 25, Block 19, Block 6, Section 1, pursuant to a build- ing permit bearing No. 68 and issued by James Neilsen, Build-, ing Inspector of the Town of Rye, on the 20th day of October, 1945, and VITEREAS said additional greenhouse has been completed at considerable expense and is ready for occupancy, and WHEREAS it will be a great hardship upon Neils V. Hanse if he is not permitted to occupy and operate the same, and WHEREAS the occupancy of said additional greenhouse will not impair or damage the real property in the neigh- borhood, and WHEREAS the said building inspector has refused to issue a certificate of occupancy for said additional green- house, and WHEREAS,, the said Neils V. Hansen has appealed to the Zoning Board of Appeals, from the decision of the said build- ing inspector, refusing said certificate of occupancy, NOIN, THEREFORE, it is respectfully urged and requested that the Zoning Board of Appeals €rant and issue to the said , Neils V. Hansen, a certificate of occupancy for said addi- tional greenhouse. Dated. October , 19489 Name Address Owner or Tenant Lot & oc No-33 is ph 222 r A R O ti e 33 � f0 2� Name Address Owner or Lot & Tenant. Block No. 4#e�� /J I h Name Address Owner or Lot and Tenant. B oc i ro. r a � Name Address Owner or Lot and Tenant � Bloc No. ■ P . t -� CMERAS the undersigned are owners, occupants or tenant of real property in the vicinity of, adioinin!; or surround- inF the Freenhotises owned and operated by '"'ells V, Fansen on Betsy Brown Road, in the Town of Pye, County of Westchester and State of Mew York, and WHEREAS the said greenhouses except the additional ree house hereinafter referred to, have been operated on a com- mercial basis for many gears last past, and iY.iEFEAS the said ?veils V. Hansen bus erected an addi- tional greenhouse on a portion of his said property known as Lot 25, Block 19, Hlock 6, Section 1, pursuant to a build" ine permit bearing No. 68 and issued by James Veilsen, Build- ing Inspector of the Town of Rye, on the 20th day of October 1945, and WMERAS said additional p*reenhouse has been completed at considerable expense and is ready for occupancy, and `TTFREAS it will be a r-reat 1--ardship upon Neils V, Hansen if he is not permitted to occupy and operate the sarm, and YIPEREAS the occupancy of said additional {Treenhouse •till not impair or dama :e the real pa � property in the neigh- boyhood, and f{ WnPEAS the said building inspector gas refused to issue a certificate of occupancy for said additional reen- 1 house, and ' �{1••• T-. t I 'ER�AS, the said Neils V. ' ansen has appealed to the a Zoning Board of Appeals, from th.e decision of the said build♦- ing inspector, refusing said certificate of occupancy, I , N011V, TFIEPEFOPE, it is respectfully urr*.•ed -and requested that the Zoning Board of An AealS rant and issue to the said, Neils 'r. '�anser, a certificate of occupancy for said addi- i Lit New h n � k-xwvf LW Ut 71 ZV'4"179 77 00 07 Vv i r !� 8'KI v 401 quauas Jo Jsum O OV 61 J r MMOIRAWC ►,_ram i al a I W. - MIRM 1t r .. l i • ♦ • • • ! ACKA J 1 ' I / !i `. .,`. L■ -- yp114M w� w Ir MIJ MWWMMAMV low WimorMw MOW r� • 1f :♦ ,,fir r BROWN .sir .�.�, �./ _ _�•_� .,1 �► !f ► r ' / f f� . . AI i vV � J Y J +AMEX� � EI � •1 • .y v � ►ame Address goner or Lot and Tenant T oc o. Ir 40 + 4 •`aAA j f a., . 1 • ' IIV li FileNo..... ....................... ig EASE TAKE NOTICE that the within true copy of a SUPREME COURT WESTCHESTER COUNTY day duly filed and entered in the office CLIFFORD MacCULLOUGH and )aceed 193 Ft,e derk,of the ELIZABETH G. MacCULLOUGH ' Yours &c., Plaint SPORBORG & CONNOLLY - against - rneys fol................................................. ............... NEILS V. HANSEN and JAMEF. (Office and Post Office Address) NETLSEl1 as Btti],dltl F 219 WESTCHESTER AVENUE g Ine PORT CHESTER, N. Y. of the Town of Rye, New I Esq. Defendi Attorney for DECREE LEASE TAKE NOTICE that Aich the within is a true copy, will be ented for settlement and entry herein to SPORBORG & CONNOLLY JUSt[Ce Fl aint 3 f s. of the Justices of the within named Attorneys far................................................................. (Office and Post Of}lee Address) rt at 219 WESTCHESTER AVENUE PORE' CHESTER, N. Y. �e day of 193 To Es o'clock in the forenoon. 'ated, 193 Attorney for Yours &c., -SPORBORG & CONNOLLY - Service of a copy of the w neys for.......,.--.---............................ . is hereby admi (Office and Post Office Address) 219 WESTCHESTER AVENUE Dated, rc PORT CHESTER. N. Y. Esq., Attorney Jot- Attorney for At a 'Tw-a. Part III of the Official Referee of the 3upre" Court, held in snd for the county of 1ie3tche4•- ter, at the Gounty Court House, is tiieGy of 4hita Plains, N i-.-w York can i the f a day, of , 11+47. PR: U'Wr t HUN, FiUD&UQX P, CLO-U s Official Referee. CLIF ORD aOBLLOUGH =W 4LILAB. Th G. CULLOUGH O Plaint ifrs,: I KZ++ F. H1►X:,;:, i and JAM K, PF=4ANN, 3 t as Building Inspector of the Town or Xy*, Now York, � Defendants,: Tho issues in the above-entitled cctiUn having duly coax on to be tried apt a pecial Ter:, Part il, of this Court on the 9th day of December, 19468 and as order having been duly cede by Honort'ible Lee Parsons Davis, on the llth dry of December, 1946, rcferring said issues to itonor&hle i Frederick P. i:loae, Official referee of this Court to heir r" and detextAine the sate, and the said issues having duly come on to be tried before the u:idersigned on the 21st day of January and the 3rd rind 13t.h days of Februrry, 1947, End the plaintiff's having appeared by :iporborg & Connally, their attorneys, Thomas F. J, Connolly and killiazm O, �;porbor ;, Jr, # of counsel, vnd the defen,dtnt, Neils Y. Hansen hf--,ving appear by Stewart W. kowe, hie ettornep, and the defandcnt, &:sea R, Neilsen. as Building Inspector of the Tc6m of Rye, New Yor*, having appe-ared by Jotan L. voward, .I :; attorney, George U• Beaker of counsel, and ,he aallc4-btions agd proofs of the g�ertiora having, b€ fully herd del the >. zd�srs + d hsvi: rendered his decision in wric.ing, including Findin6s of Fact and Conclusions of Law, and due deliber6tian having been beds NOW9 on motion of ZirURWRG & �JPVMQUITO attorneys for Lao plaiatilfso it is frtink of 1U)JUDG&D AND DZGBSED that the et on4mte beila Ve H&nSen, hie SU*Cesarors andasoips vnd their aagenta, servento and employees bee, and they hereby rare permanently enjoined and re>atrain*d fraj attachinC the additional free a w houtee new being erected on the t revises of the defendant,, Nails V. Hansen, Iacetod on Betsy Brown Road, in the Tmrn of Ryee, how Tork, to the meant ant. systwa Cont.-Unead in the old grreenhousea oxiatiag on said preai.ses prior to thf. co...Qaace-. ,sent of tho eiresattion of s&id additional greenhouse or to an � onlaargemient, of said heating systwu l and it in further I 0,UaMt ADJUDIXW JIM MMIZ.D them they defenrlt'tt,; Sell V. Ihmseng his successors and absiats and t,h*ir agenda, seervr-nts and a ix1oyeas be, and they hereby are permanently joined and restrained fra.:t InsUlling in said additionrl green.hou:i e now heir,; Greeter on xs.AA preaLoes of the de►.t en- dont, Neils V, 'Haansem, any heatin4 system that will throw off any smoke or frames, &ad 'POWs on motion of JOHN L. CO AAD, attorney for the detandtnt, Janos Ins heeilseeal it is ORDERE➢, ADJUDGED AND OWRErD that the complaint be dismissed as against the defendant# James it. Mailsens as Build inn, Inspector of the Town of Ryes Now York, without cost�s. meter I� EII N�` 'estchester ' J. FIELD, (Clerk of the County of Westchester, and alto me Courts in and for said County, the same being Courts of recori E'BY CERTIFY That I have compared the precedij Judgmbra cCul l ough Hansen and Neilsen in this office on the loth day of July rtify the same to be a correct transcript therefrom and of the IN WITNESS WHEREOF, I have h, hMq_d affixed the seal of asaid Courts A -may o J Y Sins : File No............................... 19.3-........ PLEASE TAKE NOTICE that the within SUPREME COURT is a true copy of a �.�. WESTCHESTER COUNTY this day duty filed and entered in the office CLIFFORD MacCULLOUGH and of the clerk of the ELIZABETH G. MacCULLOUGH, Dated . Ak-�i / �V t 10f 7 Yours &c., Plaintiffs, SPORBORG & CONNOLLY — against — Attorneys for—/F.. .............................. NEILS V. HANSEN and JAMS R. (Office and Post Office Address) NEILSEN , as Building Inspector 219 WESTCHESTER AVENUE of the Town of Rye, New York, PORT CHESTER, N. Y. TO 1,41 A#A- - Esq., Defendants. Attorney for Sir DECISION PLEASE TAKE NOIrICE that of which the within is a true copy, will be presented for settlement and entry herein to S P O R B O R G & CONNOLLY Mr. Justice Plaintiffs one of the Justices of the within named Attorneys for.................................................. _.______..---. Court at (Office and Post Off<<ce Address) 219 WESTCHESTER AVENUE PORT CHESTER, N. Y. on the day of 193 TO Esq ., at o'clock in the forenoon. Attorney for Dated, 193 Yours Etc., SPORBORG & CONNOLLY Service of a copy of the within Attorneys for........................................................................... is hereby admitted. (Office and Post Office Address)219. WESTCHESTER AVENUE Dated, I93 .PORT CHESTER, N. Y. To Esq., Attorney for Attorney for I i a r r f iUI'ttME CGUitT E5TC1M$T1i COUNTY - - - - - - - - - - - - - - - - - - - - - - L I F FORD MacG UL LCUOfi and I L I ZABTH U., r iacjUILOM, s I i k'lr1a,».t3.ff8� 'r NAL 6 Y. HAMEN and JPJ= Ro NZILKS 0 as Building Inaptctor of the Town of ty e, New Yorks s Defendants. The issues in this action Krim duly cone on to be tried at a vpeci.al Teru, Fart 11 of this Court on the 9th day of December, 1946, and an order having been duly made by : onorsble Lee Parsona Davis on the 11th day of Decenber, 1946s referring said issue6 to Honorable Frederick P. Close,, Official Referee of this 'Court to hear and de- termine the same and the said issuer having duly came on to be tried before the undersigned on the 21st day of January and the Ad and 13th days of February, 1947, and the all e- gatiais and proofs of the parties having been fully MGM, and after licaring Sporbarg & Connolly, attorneys for the plaintiffs, Thous F. J. Connolly rind William A. Sporbort , Jr., of counsel, Stewart W. Howe, attorney for defendants s Neils A Hansen, and John L. Coward, attorney for def endAnt, sae s�. oi.lsen, as Building inspector of the Town of Rye, AW York, George 0. Bodker, of counsel, and due deliberation having been had, I decide end find as follows: FIgllI =C�:� OF FACT � r rirnrr ru I a 1* That since prior to October 15th, 1945 the plaintiffs have Leen and now are the owners in fee of thtm cortaain lands end premises situate in the Town of tyeg, r10ounty of Westcheoter and 3tate of New York, L.,,ore pa~.rtic;u. larly set Forth and do;acri.bed in Schedule "A" annexed to the faint herein. 2. That since prior to October 15th,a 1945,E the defendant, Neils V. Hanson, has been and now is the omen in fee of three certain lands and far ,F ices situate in the `flown of Ryes, County of Westchester and State of New York more p articul rl y set forth €end described in Schedule OBO annexed to the complaint herein. 3. That the said preiilse:s of the plaintiffs , and the said preaises of the de anda nts are contiguous. 40 That in and about the year 1926, the property of the defendant, Nei.ls V, f ensen= situated in the Tern of Rye and described in �;c:Wdul.e "B" an exed to the ampl€fiat,, was owned by one Harry Katz. 5. Thaat- said property teed by the ee Harry Ertz consisted of approximately four &cres of i ad. t 6. That fro i rbout toe your 1926 and up until rabout they !aontf. of July, 1935, the said Harry Katz operated a wholesale and retail nursery~ business on said property; thcit 98 P of tfac., staid harry Xatzrs busine s wa& rctc il. 7. That all of the Zreeahouses which ire can the property now and one :additional greenhouse ap.proxiaateL- l.y 125 feet long; by lea feet wick: were on the property frc>a about the year 1920 and up until the yetiar 1942 except the new greenhouses which is the subject of this proceeding. 8. That from about the year 1926 and up until Pbout July, 1945„ there were two knot beds, each ap— proximately 125 feet long by 6 feet wide, on the said pre— r miaea; there was one on each side of the road loading into 3 the property; one of theas not ?ads wits on the site upon which the said new greenhouse wns erected. ed. 9. That from €.bout the year 1926 and up until Lb*out July, 1935, all of said property except that portion which was covered by areenhou.ses end hot beds, was . planted with a number of perennials, several hundred rose buses and also some nursery ;Mock. 10. That the foundation of the addition greenhouse (125 feet x 16 feet) hereinbe:fore referred toy, was removed in 1942; that the main ;part of this grienhouse iota raaoved prior theroto, 11. Wat the defendant, Neils V. Hansen , weat into possession of the said property formerly owned by Harry Katz can December lot 1935, 12. That all of the existing; greenhousaaf except the new areenhouse which io the subject of this proceeding, and the one additions greenhouse herainbofore mentian+edg were on tho said property formerly canned by. Harry Katz when the scid defendant, Neils V. Hanson, gent into possession thereof, 13. That when the defendant, Neils V. Hansen, wont into possession of acid property formerly owned by Harry Katz there were two hot buds, each spnroxi,- mately 125 feet by 6 feet, on the said property; one of said hot beds was an the site upon which tho now grednhouse was erected. 14, That in Uctober, 1935, the tail defen— dant: Neils V. Hansen, put 100C 8craniva plants in the said greenhouses, 15. That the said defend ant, Neils V. j Hansen, first pOnted the land formerly owned by Marry r Katz in the springy; of 1936. 1Av That the scid defendant, Eeils A Hansen, occupied the prezises formerly owned by Harry tuts free January 1, 19)6, up until July 10 1939, under €: leaseq 17, That duri.ne the period the acid do— Pendant, Neils V. Hanson, occupied the said premises under a le3asa, he curried on a wholesale end retail Ureenhouse and florist business, except that then the said defendant was do`_ng more retail business Ova he does at the present tw la. That when tha acid defendant, Neils V. Hansen, wont into poase3 ian of said premises, the houi:a on Argyle Road in Taaarack GIrdens, Town of nye, now owned by the plaintiffs Clifford NAcCullough and Elizabeth G. WON lough, gran beinC built; that said house is and was to the south of and directly in they rear of the ;property of the said defendant, Neils A Hansen. 19. That they said house: now owned by the said plaintiffs, was not coapleted until several months after the said defendant vent into possession of his said property. 20. That after the conpletion of the said house on Areyle Load owned by the plaintiffs, it was occu— pied by a Mr, Stregar. 21. That said house situated on Argyle loped, was Cheri owned by ane Walter hertz. 22. That as id Hausa situated on Argyle Road, Tamara k Gardens, Town of aye and known as 25 ArCyle Road, was purchased by plaintiffs on or F.bout Axigust 1, 1937, 23. That in or abort .duly, 1939, the said , *fendant, Neils V. Hansen., purchased said property formerly owned by Harry Katz. 24. That on the 12th day of Noveaber, 1931, the Tawn Board of the Town of Fiye, County of estchestar enacted an ordinance entitled "An Ordinance reL--ulati.ng and restricting the location of trades and industries and the location of buildings designed .for specified urea, &..nd re- ,ulatin and limiting. heir and bulk of buildin s here•• after eructed and regulating; End detertrini.n ,, the area of yards, courts and ether open spaces, and regnaatint7, the density of population in Cim areas, and establishing th* boundaries of districts for said purposes and providing ;,enaltles for the violation of its proviafors; and reperiliag cartain related prior ord nancea." 25. That said ordinance provided ghat: the same should take effect upon the adoption end publictltion theraof as provided by leis. 26. That said ordinance was duly posted and published :ns ret;kired by ltrw, such post:inZ cnd pttblic&tion beine- full &-nd co.�plete on the 12th day of January, 1932, 27, That a i.d Ordinance provided that it should be known as the Zoning Ordinance, 28. The:t: the respective premises of the i` plaintiffe and the defendant, Neils V. Hansen, wore at the ' time of the adoption of said ordinance P-td now are in that I! district des.ir iated by acid ordinance a6 "Residence W 29. That at the t 1.-ae of the adoption of said ordinance the said ;,remiaes of the defendant, Neils V. son, were ben used as as co,: :iercial greonhouse for profit. 30. That at the time of the, adoption of said ; ordinance, the said premise6 of Vne defendant, Neils V. d Bunsen, h&Ld erected thereon graenhouses, hot beds and a boiler houze and the portion of said premises not coverod by said structures were utilised for the raising of nursery stook, 31. That such structures end such use of the said pre sisea did not conform to the provisions of said ordinance re?atiag to structures and the use of preaises in aRe0denco A" Districts, 32, That such nonnconforming use has con- tinued to the pre vat time, 33. That the greenhouses on said promises s are heated by a heating plant, in which oilworeatod bituminous Coil is used for full, 34. 'Mat: said bawQx ; plant emits froze the awe Stack ca"Dect.ed thorwaith black spa, 35, That iAaoke from said eke stack has ern over plaintiffaf premisaj :and against the dwelling er cted thereon o discoloring the paint on the northerly side thereof and soot contained in said amoke3 has settles: on the window sills of said dwelling and entered into aaid dwelling.* 36, That on the 15th day of October, 1945, the defendant, hells A Ronson, applied to the Building, Inspector of the Town as' Rye, County of Westchester and Statd of New York for a permit to make MUM= and alteration to creenhau es" an premise c deacribesd in KLedule "B" an- nexed to the complaint to be occupied as a greenhouse. 37. That at the time of making such appli- cation the defendantg Neils Y, fusses,, filed with the Duildinz inspector of acid Town, of hys plans entitled "Addition and Alteration to Green Houses for Hr. N.V. Manson" which .plans showed r proposed new addition 150 feet loaz and. 50 feet wide. 38, Thut on the 20th day of uctobert 1945, the Building lnspec-or of the Tarn of Rye, Now York,, issued to the defendant, Ml a its V. Hansen, Permit to wild go. 68 which pom'!t stated that the defendant# Neils V. Hansen "has permission to erect Uterativn to Grbanhouse" on the pre sen describes''. in Sched°ala "B" annexed to the complaint In accordance with &pplication No* 68 and the drawings and statements on file in the office of the De- partment of Buildings, Town of Rye, Now York, a 39. That thereafter Brad before the emmence- ment of this procee3dLnj; and without notice thereof, the defendant, Neils V, Hansana cammemced the oroctiou of an additional Greenhouse on the prey iseu described in Schedule *B" annexed to the complairnt, the erection of such build- ing being 9aN completed at the time of the catuaencetaent of this action &nd said defendant expended thereon the sus of �af34(7.CK . 40. That the promises of the defendant: Neils V, Hansen, described im Schedule "B" annexed to the complairt are not bein4, privctely uced for horticultural Purr-oaes. 41. That the def endFant, F cils V. Hansen t � I intends to use the additional greenhouse being erected upon said premises, upon co= plationg as a cazmarcial Creenhousa. 42. That the defendant+, Neils V. Hansen, z , intends to attach the additional L-;rcanhause now being; erected upon his promises to the heating plant now biting used to beat the c=pletod greenhouses on said premise. 43. That no plans or arrant ement s have been made for heating said new greenhouse. i 44. That the aatt•aac traent vim' the asdditionaal greenhouze to sald retie it heating plant and the heating of scAd addit�anal ;;,I"eaiillwuav by "id heating plant 'would in- cre<;a,e the ;owit of smoke +witted from tho t"oko " ,ck an thy:. defendant•s preuiases. 45. That ,such increase in th,n &mount of weaoke emitted firm the axe stack on the defundaut t s pre- al as would dej reciate the values of the plaintiffs' pre" i,ses. 46. That such deprec,i,actian in v�al.ue would amount to t1te swa of tine 7houstuid Lid o ieI I CC*00) IJtts:w laru. 47. That it takes fro�.4 three to four ream for an azalea plant to x;ture. Pf 48. That �recmh ou e ri i sed azaleas do not require 14L't• I 49M That the said new grreaouae coaI.d be used for storing hydrangeas ad it would not be nesessary to hot said Lrvanhousc„ 50. That said defendant j Neils V. flansen* does not puhl:Lcly display any u.f the plan ntt raised on :pia said property and nmm of said plats Lre old at the road- side. 51. That said defendant, L oils V. 11anasen t does not stare fertilizer within 100 feet of r.;62y lot lines 52* That it Its not necessa%7 to ah t a gre sahmise in order to rail* amleas,. 51. That the smoke stack on the Park Avenue School which is about a half a mile i:rw defe.-idantts Y +zits dense rs Koko. 54# That the neighbors cal'..ed by the defendant living in the vicinity of the def a ndcint',s property have not observed signe of soot or suoke around their 55. That the nel&hbors called by tht defend _liw-iag is the vicinity of the defendant's property bave riot observed sins of soo; or "oke on their clothes hmg out 0 dry. yu. ' hat. the new reanhouse which is the subject of this proceeding is about 125 feet: from the south*► erly 1:n® of the said property o.i said defendEmt s Neils V. 57. That the maid new groan Ouse is so located that there are at: least trace other Lreanhouaes bet:°.teen it and the plaintiffs' said r.rok ert:y,. 58. That said new groenhousa is not un- � si�Yatly. 59. That on the north wide of Argyle Road, proceeding in a westerly direction from iiid&e Street, there are six houses within a ds..t unca of a thousand feet i or led5, from the acid defendant's property, 60. Tbat five of said ruses on the north side of said ArLyle 1-ioad are white and one is bra stucco* 61. That .x, rwliu outherly ride of rErU;,'lE� Bead, proceeding in a westerly direction i s the dGLd and of Argyle Rood to Aidge Road there are coven houses, 62. That five of zaid houses on the southerly aide of Ar&yle Road are wni.te rand two are gray, 63• That On tho uorrther y lido of Betsy Brom :load, proceeding; wesLarly froLi Haines boulevard to o� Ridge Road, there are fourteen houses. 64. That ten of raid homes on the north rw* ly side Of Betsy Brota hood are white, fay, That on the southerly side of Betty Brown 1toad, proceeding iii a westerly direction from Aids e Road to Haines Boulevards there are ei ;ht houses and all of thew we whit+.. 66. That t1jere is no proof of soot or smoke on any of said houasea* except tbMW of the pla.intiffe and the plaintiffs' hrotherg, George X"Gullou&e 67. That on ►ebrua.ry 99 1947, the pro- perty of said defsandant, Neils V, li:axsan was covered with a iIgbt, powdery snow. 68. That there was no sign of smoke or c soot on the snora. 69. The more erection of the new Croen- bouse is not dsmaeing to plaint i.f a, 70. That the completion of said now £seen- house will not de-reciate the value of plaintiffs' said pro- perty, 71. That the completion of said new 6rean-- house and ito use for storegp and ei.periw4wtal purpoGes rii.l not depreciate the value of plaintiffst said property. 72. That the present value of plaintiffaf said prop y is A7 a 00„uJ. 73, ihat said new L ro:anhouse is not now being us ad. 74e That 3sid t7eenhouso 13 not now being i 75++ That the now :Tojnhouso i.6 ar, :.,IMprov+e- metnt over the `:wt, bed that. formerly covered the site. 76. That at the prasenio t:bae &aid defen— dant does lens than 10% retsil business. 77, That i-,, is ju.t possible to see the very rid-Ce of the new groenhouse from the property of George McCullough which is loca.tod on Arg;le aaad immediately to the east of the plaintiffs' said property. 1. T"hat on the 12th clay of November, 1931, the Tom Hoard of the Town of Ryo, Y aw stork, duly ermactced an ordinance know as the toni.n,, Ordintmee, which ordinance became affective after Uwe posting and publication as required by law an the 12th day of January, 1932. 2. That then additional Creanhouse now being. Meted on z€id promises of tie defendant, Neils V. Hanson is being erected in violation of Subdivisions (a) , (b) and (a) of Soatian k of said Zoning Ordinance. 3. That the plaintiffs are entitled to Judgment permanently enjoining and restraining the de o - dant! Neils V. Hansea, his succausorw and assigns, and their ajen,ta, servants and employees fro4 at aching the: additional ,greenhouse now boing erected on his said promises to the heating sy t: a contained in the old greenhouses existing on his said premises prior to the cow,enc€uent of the erection of said additional greenhouse or to any enlarge- ment of said heating systen. 4. TYmt the plaintiffs are entitled to Judgment permanently enjoining and restraining the Man- dart, Leila A Hansen, his succesaora and assigns aad their a3ents, servanta and imployeas from installing in the addi- tional greedhouse now being erected on hie said promises any heating systai that will tcirow off any smoke or fumes. 5.� That the defendants J...= R. Neilsen s as Building inspector of the Torn of Rya, Now York, is ea- titled to judgment dismissing the complaint as to him without costs, ✓` U. That: t1v� plaintiffs a.ra not entitled f to ju gaent perraan,:ntly enjoining and restraining the dofe*• dautp Neils V. Manson, ai; ntaq .servants and mployeea from completing the eroctisan of Ute new greenhoua® if .not heated. 7. That the plaintiffs are L-tot Wit„itled to judgment permanently restrcin;ng and enjoining the defen- dent f Neils V. iaa3n a ?3�, ,i; t�tints, ,:, rv=ts or employ eas from uain ea3d new _roenhouve for cc i-f;erci,al purposes if not heatod, 0. That the plaint iffe are not entitled to ,judi;aont pexnenently restraining and eaJoining. the de bn- dent, Neils V. Hanson, frcKi using the now greenhouse for storage gad experimental purposes U not heated. Lot Jude;ment be entered accordingly,* r- AFFIDAVIT OF PUBLICATION- State of New York County of Westchester ss THE DAILY ITEM PUBLIC NOTICE (Item Publishers, Inc.) TAKE NOTICE that the Zoning Board of Appeals of the Town of Rye wlli hold a public hearing on the 8th day of November, 1948 at 8 o'clock in i the evening, at the Town Board Rooms, Ip Pearl Street, Port Chester, E Myrtle Van Steenberg New York, to consider the appeal of being duly i`Telis V. Hansen from decision of the ............................................................ eng uy sworn, Building Inspector of the Town of Rye denying the application for an oc- deposes and says that he is the principal clerk of the Publisher of "The cupancy permit for a greenhouse erect- ed on the premises on the south side of Betsy Brown Road and designated Daily Item," a daily newspaper published in the Village of Port Chester, on the assessment map of the Town of Rye as section I• Block s, Lot 25819. Town of Rye, County of Westchester and State of New York, and the and to transact such other and further Imsiness as the meeting.may properly come before notice of which the annexed is a printed copy was published in said news- Port Chester, N. Y. October 28, 1%8* paper on the following dates of publication: f HARVEY S. QUIGEL, If Chairman of p Zoning Board of Appeals Oct• 29 f Nov. 1)19)8 -----------------------------------.....................................•..................---......-..........................,.........--..... Signed--) tt.�rlS1 -- -------------- Sworn to before me aRL I)FLt.A [1LL'r�I'N York this... 6th. day of ---- �-..P1AV�.... .- 19.- PF. e of i ra- t3r .` fT jjotarY i'u�l� s}s VJessGhcctr nty i"at sces �'�V•1950 Notay Public, Westchester County (crrsusss:«aLa4� I M-4-44 OF I? 4L * OFFICES OF TOWN ATTORNEY x x TOWN OF RYE %P 101 WESTCHESTER AVENUEe. [] wp ESTER PORT CHESTER. N. Y. November 3. 1948 JOHN L. COWARD TOWN ATTORNEY Mr. Basil M. Bilas Hawthorne Avenue Port Chester,N.Y. . Dear Sir.- In order that you may familiarize yourself with the decision and the judgment of the Court in the action of MacCullough vs. Hansen! I am enclosing herewith copy of the decision of Judge Close Official Referee . together with copy of the ,judgment. Very truly yours, John L. Coward JLC mdr Eno* x At a Term, Fart III of the 4f"idsl Referee of the Supreme Court, held in and for the County of weatches- ter, at the County Court Rouse, in the City of Mil to Plains., New York, on the loth day of July, 1947, Pam" �itTa hUR. FjV,,D+:RiCR P. CL03F,. Offl0Is1 Referee. w w r w . r w w w w w w . CLI?11"OHD MaQC'ULLOUGH ; nd ELIZABETH Go � 1Aa OCULLOUGH, S Plaintiffs, a -against. NEILS Y. HAIMFN and JAXFS H. 'XIIARs, as Building Inspector of the Town of a Faye, New York, a Defendants. - w r w w w w w w w w w � w w w w w w i r � a • The issues in the above-entitled action having duly come on to be tried at a Sgeoial Terns, Part 11, of this Court on the 9th deny of December, 1946v and an order having been duly made by Honorable Lee Persons Davis, on the llth day of December, I946, referring said issues to honorable Frederick P. Close, official Referee of ttLi s Court to hear and determine the same, and the said fasuese having duly come on to be tried before the undersigned on the 21st day of January and the 3rd and 13thdays of February, 194% and the plaintiffs having appeared by 3porborg & Comiolly, their attorneys, Thu mas F.JeConnolly and William D. S;porborg,, Jr., Of ea,�unsel, and the defendant, Reds Ve Hannon imving appeared Yy Stewart 4. Rowe, his attorney, and the defendant, Same Neilsen, as Building Inspector of the 'own of mye, NewYork, wing appeared by John L. Coward, his attorney, George o• Booker of counsel, and the allegations a 14 proofs of the parties hawing been fully heard and the undersigned having rendered his decision in writing, including Findings of Feat and Conclusions of Law, and due deliberation having been had, fir, on motion of SPOMORG & CONNOLLY, attorneys for the plaintiffs, it is ORDERED, AWMGED AMD DEC that the defendant, Rails V. Hansen, his successors and assigns and their agents, servants and employees be, and they hereby are permanently enjoined and restrained from atta:chiru the additlui*l "reenm houae now being erected on the premises of Uie defermiant, Neils V. HE nse n, located on Betsy Brown, road, in the Town of Rye, Now York, to the 1"eating system contained in the old greenhouses existing on said premises prior to hies eon nennee• meant of the erection of said adaitional 6reenhouae or to any onlar gerAnt of said heating, system, and it is further ORDRRFD, AAOMWED AND DRCTOm that the defendant, Heil Ve Hansen, hds succes:-iors and aaeiCgna and their agents, servants and expl-)yees be, and they hereby are p®rmoinently enjoined and restrained from installing in said additional greentiouse now being erected on said premises of the defen- dant, Mils V. Hansen, ax7 heating systoz that will throw off' any smoke or fumes, and N(Wi t on m ti on of JOHR L. GOWARDs attorney for the defendant, Jare n H. Neilsen, it is pRDF?V'D, ADJVDQBt) AND DECREED that the complaint be disad,ased as against the defendant, .lames R. Neilsen, an Building Inspector of the 'lawn of Ry*, Now York, without costs. Eater .''rederlok ?. Close O_'`'' CML NPRIM Robert JL Field BY HON. FREDERICK p, CLOSE, OFiFICIAL REFEREE MacCullough v. Hansen---This action is brought by the plaintiff, as owner of real estate located in the Town of kqe, to restrain an adjoining owner from completing the erection of an additional greenhouse on his property upon the theory that the building will be an unlawful e.,:tension of a presently non-conforming use and will damage the plaintiff's property. The plaintiff owns a single family house located on the northerly side of Argyle road in the Town of Ftye. The pro- perty of the defendant is located to the north and west of the plaintiffs' property with a frontage on Betsy Brown road. This parcel contains several acres. Both properties are placed in Residence Zone "A" by a zoning ordinance adopted by the Town Board of the Town of Rye and became effective November 12, 1951r It is conceded that at the time this ordinance was adopted the defendants) property was being used as a nursey iith greenhouses, hot beds, nursery stock and a boiler house. Such non-conforming use has continued to the pre-. sent time„ The building inspector of the Town of Rye was also a defendant but the complaint was dismissed as to him at the close of the plaintiffs , case. Consequently, when the de- fondant is spoken of herein I am referring to the defendant owner Hansen, On October 15, 19450 the defendant applied to the Dew partment of Buildin ,s of the Town of Rye for a building per- mit for the alteration and repair of a greenhouse on his property. 'i'he plans submitted showed that what was intend- ed was to erect an additional greenhouse containing in area about 7,500 square feet. On October 20, 1945, a .2g, t wag issued, and at the time this action was begun the building was completed except for the installation of the glass and pipes for heating. The defendant testified that it was 90 per cent completed. The plaintiff offered no evidence on that phase. The plaintiffs ' complaint is based upon the theory that the erection of this greenhouse is in violation of the zoning Ordinance and that it is being erected to be used for commercial purposes with the result that the plaintiffst will be irreparably injured and damaged. The defendant, by his amended answer, sets forth four separate and distinct defenses. The first defense is to the effect that under subdivision 10 of section 5 of the ordinance the defendant has an absolute right to erect the building. The second defense is based upon the theory that what the defendant has done is an authorized extension of a non-conforming use. 1'he third defense is based upon a claim that as to this aeferxlant, the ordinance is uncon- stitutional. The fourth defense alleges that the ordi. na.nce was not properly adopted and is therefore void. At the trial the answer was further amended to set up two additional defenses designated the fifth and sixth de- fenses. The fifth defense alleges that the defendant ap- plied in good faith for a permit and in reliance thereon has expended large sums of money in erecting ,said greenhouse. The sixth defense alleges that the defendant intends to use the greenhouse for storage and experimental purposes only and not for the sale of any merchandise% The plaintiff, in order to recover, must establish that he will suffer special damages as the result of the use to which the defendant has or will ;nut his property and this upon the assumption that such use is in violation of the Zoning ordinance. This is an ancient rule in equity (Lan- K sing V. Smith, 8 Cowan, 146) and is applicable. to and has been applied to cases involving the violation of a zoning ordinance (Rice v. VanVranken, 225 App. Div., 178, atfed, no opinion, 235 N.Y,* 541; Marcus v. Village of Mamaroneck, 283 N.Y., 325) , T have reached the conclusion that the erection of this building is in vitiation of the ordinance. Subdivision (a) section 4 of the ordinance reads : "Future uses, Construction and Changes. No yard or court may be used and no building or part thereof may be constructed, moved extended, altered or used except in conformity with the provision of t}is ordinance. Subdivisions (b) and (c) of section 4 control non-conforming uses and conditions. Subdivision (b) provides that a non-conforming use may be continued. Subdivision (a) provides that a non-conforming use may be emended throe ,hout a building manifestly ar- ranged and designed for such use, It seems clear that this building constitutes a violation of the above sections. The defendant arinles that its erection is permitted under subdivision (101 of section 5 of the ordinance.Section 5 provides generally for residence "A" district uses, So far as pertinent it reads : "Within arq tResidence At District no building or premises shall be used for other than one or more of the specified uses* * e, (10) Building or premises privately -osed for horticultural, agricultural or dairying purposes, provided no greenhouse heating plant be operated within fifty feet of any lot line* * a and further provided that no products raised be sold at the roadside or publicly displayed." Here the defendant was examined before trial and testi- fied that he intended to use this building, in connection with the other greenhouses already on the premises, for commer- cial purposes. Thereafter he modified this testimony so as to bring his purpose in harmony with the foregoing section and, as stated, further amended his answer to give effect to his modified testimony. On the trial he testified that he did not intend to heat the greenhouse but to use It an an experimental laboratory to breed asalies, The plaintiff offered testimony to the effect that smoke from the present stack discolored the paint on his house, especially on the northerly side, and that soot formed from the coal burned in the present heating system settled on his windowsills and invaded his house, especially at night when the wind blew from the northwest. A realestate expert called by the plaintiff testified that the increase in capacity caused by the new building, assuming it was connected up to the present heating plant, would depreciate the value of the plaintiffs house to a substantial amount. While I believe that increased smoke to the extent that would follow, if this additional greenhouse is heated, would depreciate the plaintiffs property to some extent it would not be depreciated to the extent that the expert estimated. The expert called by the defendant testified that in his opinion no damage would result& This divergence of opinion is not unusual among expert witnesses. The oases relied upon by the defendant to establish the theory that this action is prematurely brought are dis- tinguishable on their facts. In the Matter of Sewell v. Murphy (224 App. Div, 763) the ordinance permitted the erec- tion of greenhouses in connection with private houses. The greenhouse there involved was oompnratively smell, 12tx371, portable in its nature. There the appellant seems to have proceeded on the theory that it was not a greenhouse but a storehouse which was prohibited b, the ordinance. Under the facts there involved it would have been pure speculation to have presumed that it was to be converted to a commercial or industrial use. In City of Louisville v. Koenig (162 a. � - w M' W. 19, 140 A.L.R. ) the principle involved was whether a primary intention to use the building for a purpose that was in violation of the zoning ordinance could prevent the owner from making use of the building for a purpose that conformed with the zoning ordinance. Here the premises upon which the building was erected is not "privately used for horticultural purposes". The entire premises have been used as a nursery for years. The business is carried on for profit and to reach the con- elusion that this building is not an unauthorized extension of a non-conforming use is to be blind to the realities of the situation* However, its erection in and of itself does not give to the plaintiff a right to restrain its use unless such use causes or will cause special damage to the plaintiff. If Its erection and use were to constitute a nuisance the rule would be otherwise (Ls Rossa v. Forte, 92 P.A*3uper.Ct.450) . Tree mere presence of this building causes no damage to thin plaintiff* It is located so that at least two other gree- houses on the defez-dant's premises lie between it and the plaintiffs property, There is nothing unsightly about it and in my opinion the present erection is an improvement over the so-called "hot beds" that formerly covered the site, Despite the present testimony of the defendant that he does not intend to attach the building to his present heat- Ing, plant, in view of his prior testimony, I am of the opinion that he does. If he does not the relief hereinafter granted will do him no harm; if he does the plaintiff will have received all the protection he in entitled to. Judgment will be granted to the plaintiff to the extent that the defendant will be restrained from attaching the new greenhouse to the present heating system or any enlarge- ment of the present system or installing any heating system therein that will throw off arW spoke or fumes„ No costs will be allowed* Settle findings and judgment on notice, i 4. PORT CHESTER 5-1725 �O�w OF�yF * . * OFFICES OF TOWN ATTORNEY 1. } TOWN OF RYE 701 WESTCHESTER AVENUE cyFSTER PORT CHESTER. N. Y. JOHN L. COWARD TOWN ATTORNEY October 28, 1948 Mr. Basil M. Bilas Hawthorne Avenue Port Chester, N.Y. Dear Sirl There will be a meeting of the Zoning Board of Appeals to consider the appeal of Neils V. Hansen from the decision of the Building Inspector of the Torn of Rye denying his application for an occupancy permit for greenhouse erected on the premises on the south side of Betsy Brown Road. I am enclosing herewith copy of the notice to be published in the Port Chester Daily Item, You will note that the hearing will take place at the new office building of the Town of Rye located at 10 Pearl S ree , Fort Chester, New York. Kindly, make a specialfort to be present at this hearing. Very truly yours, doh n L. Coward JLC mdf Eno• PUBLIC XOTICR TAU NOTICE that the Zoning Board of Appeals of the Town of n7e will hold a public hearing on the 8th day of November, 1948 at 8 o'clock in the evening, at the Town Board Rooms, 10 Pearl :Street, Fort Chester, New York, to consider the appeal of Sella V. Raneerx from decision of the Building Inspector of the Town of ltge denying the appli ca•• tion for an occupancy permit for a greenhouse erected on the premises on the south side of Betay Brown Road and designated on the assessment map of the Town of stye as Section 10 Block fi, Lot 26819, and to transact such other and further business as ray properly come before the meeting. Port Cheater, N.V. October 28 , 19489 Barve 8. el WmIrman -of the zordiq 115ird of Appeals aF PORT CHESTER 5-1725 qyF. * OFFICES OF TOWN ATTORNEY TOWN OF RYE ae 101 WESTCHESTER AVENUE CyESTER 4 PORT CHESTER, N. Y. JOHN L. COWARD TOWN ATTORNEY September 23, 1948 Mr. Basil h:. Bi la s Hawthorne Avenue Port Chester, N.Y. Dear Sir : I have received word from Stewart '7. Rowe attorney for Niels V. Hansen that the appeal iron the decision of James Neilsen, Building Inspector of the Town of Rye, refusing a certificate of occupancy for the greenhoiise erected on Lot 25 B19, Block S, Section 1 on the assess- ment rap of the Town of Rye, has been withdrawn without prejudice to R renewal at a later date. As P_ result the meeting of the Zoning Board of Appeals called for Monday, September 27, 1948, to hear the appeal, will not be held. Very truly yours, John L. Coward JLC mdr I Port Chester , New York November 8th, 194 Meeting of the Zoning Board of Appeals of the Town of Rye , New York, held at the Town House , Pearl Street , Port Chester, New York, on November 8th, 1948, at 8;00 P. M. , pursuant to public notice duly published. The following members of the Board were present; Messrs. Quigl.e , Smith, Ferris, Wallace , and Bil.as. Also John L. Coward, Town Counsel , Stewart W. Rowe , attorney for the petitioner—applioant , and Neils V. E. Hansen, petitioner—applicant , in person. The meeting; was called to order by the Chairman, Mr. Quigl.e. Mr. Bilas , Secretary, read the public notice of the meeting, and affidavit of publication of same in the Daily Item. MR. WALLACE: I would like to say I am the out- going President of the Community Association of the Town of Rye , and that as presiding officer of the Executive Committee I have carried out the expressed wishes of the Association in connection with the protest against the appeal of the defendant. As an adjoining neighbor of the defendant , I would like it to be known that I have found him to be a pleasant and congenial neighbor. I do not feel that my actions in behalf of the association or that my personal feelings and regard for my neighbor should impair my ability to be fair in working with my associate to render an impartial judgment . However, I would appreci— ate the Counsel of my associates in this connection. MR. QUIGEL: Your actions in connection with the Association were taken prior to your appointment to this Board's MR. WALLACE: That is true. yes. MR. ROWE: Gentlemen, this is an appeal from a determination of the Building Inspector of the Town of Rye , refusing a certificate of occupancy to the applicant, Neils V, Hansen, in connection with the greenhouse constructed on a part of the premises situate on the southerly side of Betsy Brown Road, and located in the Town of Rye, known as Lot 25B19, Block 6 , Section 1, on the Assessment Map of the Town of Rye. The greenhouse was erected pursuant to Permit No. 68, dated October 24tn, 1945, signed by James Neilsen, the Building Inspector. In his decision Mr. Neilsen stat that "dupe to the decision of the court in the action of McCullough vs. Hansen, I find it necessary to deny your application for an occupancy permit for the greenhouse on Betsy Brown Road. " i 3 I would like to offer in evidence a certified copy of the judgment signed by the Hon. Frederick P. Close , official Referee , dated July loth, 1947. Gentlemen, in this judgment , which of course , is the decision in the case, it is provided S.s follows: " Ordered, adjudged and decreed that the defendant , Neils V. Hansen, his successors and assigns , and their agents , servants and employees , be and they hereby are permanently enjoined and restrained from attaching the additional greenhouse now being erected on the premises of the defendant , Neils V. Ha.isea, located on Betsy Brown Road, in tree Town of Rye , New York, to the heating system contained in the old green house existing on said premises prior to the commencement of the erection of the said additional greenhouse, or to any enlargement of said heating system; and it is further ordered, adjudged and decreed that the defendant, _veils V. Hansen, his successors and assigns , and their agents , ser— vants and employees , be and tuey hereby are permanently enjoined and restrained from installing in said greenhouse now being erected on said premises of the defendant , Neils V. Hansen, any heating system that will throw off any smoke or fumes. " That is the extent of the judgment , and there is nothing in it which prevents the applicant from erecting and occupying the greenhouse. The judgment merely 4 has to do with the attachment to the heating system, and the installation of a new heating system which will throw off smoke and fumes, and I would like to offer this in evidence at this time. Paper referred to received in evidence and marked "Petitioner-Applicant' s. Exhibit 1. " MR. kaNE : May I call Mr. Hansen at this time to testify to the cost of the erection of this greenhouse, going to be a, terrific nardship if he is not permitted to occupy it? It was erected pursuant to a permit issued by the Building Inspector , and plans and specifications were approved by him before the work was started, and I would like to place on the record at this time the cost of the erection. MR. QUIGEL: Perhaps you can give us this in- formation - you can get it from kr. Hansen - what was the status of the construction at the time this proceeding was started? MR. ROWE: It was ninety per cent. completed be- fore the action was started. MR. 0OWARD: Have you a, copy of the Findings of Fact end Conclusions of Law? MR. ROWE: Only a conformed copy, if you will accept that , I will offer that in evidence. Paper referred to received in evidence and marked "Petitioner-Applicant ' s Exhibit 2. 1' NEILS V. HANSEN, Betsy Brown Road, Part Chester , New York, called as a witness , and being duly shorn, testi- fied as follows: BY 11R. R,+.. Q Mr. Hansen, you are the 9.pplicant. in this proceeding? A Yea. Q And you are the owner of Lot 25-B-19, Block 6, Section 12 on the Assessment Map of the Town of Rye? A Yes, Q On or about October 20ta, 1945 did you apply for a building permit? A Yes. Q And was that building permit issued to you? A Yes. q Is this the building permit wLich was issued? A Yes. MR. RC : I offer it in evidence# together with the plans and specifications filed. Papers referred to received in evidence and and masked "Petitioner-Applicant' s Exhibit 3. " Q Mr. Hansen, I snow you this application for alterations and repairs , and ask you whetter or not that is the S application you signed for tiie peritit? A Yes , that is the application I signed. MR. HILAS: For the occupancy permit? MR. RCNr-: No, for a building permit. Q Mr. Hansen, when did you start construction of this new greenhouse? A Oh, about a week or two after we did get the building permit. Q Was that about around October 25th, 1945? A Yes - I don' t know what month. Q Do you know when the action entitled "Clifford McCullough and Elizabeth. G. McCullough against Neils V. Hansen was instituted in the Supreme Court? A I believe that was in March, the following year. Q March 1946? A Yes. Q And how far h�=d you gone at that time toward the com- pletion of that greenhouse? A Well , we estimated it to be 9041© completed, there was just a few more bars , and the glass was to be put in at that time. Q Is the greenhouse completed at taxis time? A Yes. Q And ready for occupancy? A Yes. Q Can you tell the Board wnat you expended in connection with the construction of the greenhouse? I shoe you this piece of paper - you can refresh your recollection." A Well , through the four years we spent $5 ,782.00 on material , and practically $1 ,500.00 on labor. Q So the greenhouse, for material and labor, cost you in the neighborhood of 7 ,00e0.00? A $7 ,500.00, I think it was. Q And if you are not permitted to occupy this , of course you will lose tna.t money? A Yes. MR. ROWS: I have no further questions. MR. COWARD: I have no questions. BY MR. QUIGBL: Q How long have you owned that property, Mr. Hansen? A I have rented it and owned it since 1935 - December. Q Since 1935? Yes. Q And you were a tenant prior to that time? No , that was the time I started to rent it , with an option to buy it. Q Do you know from your personal knowledge tinat all of that property was used for a greenhouse or for greenhous purposes and hot beds , or anything of that sort - was it 8 also used up to that time or prior to that time? A Yes. Q Did you have any connection with the property before you became a tenant? A No, except I have been visiting Mr. Katz who owned it, several times before that. How far bar.'- does your memory go, your personal know- ledge as to how long it was used? A The firs. time I was on the place was in 1927. The greenhouses were very old at that time. BY MR. ROW-': a Mr. Hansen, can you tell the Board what you saw on the land in 1927 when Mr. Katz was operating it ? A Well , he had plants and flowers planted all over the place. He had a much bigger place than I have. I believe he had 17 acres , and he had cultivated a piece of land on the other side of Betsy Brown Road.. Did he have greenhouses on the land in 1927? A Yes. How many greenhouses did he have? A Well , there was this greenhouse on the place - there was one more than I have at present. Q Were these greenhouses as large as the ones you have on the place at the present time? A Yes. 9 Q Can you tell the Board what was on the particular site where this addition is now? A Well , tnere was some hot frames. Q Can you describe the hot frames to the Board? A Well , tney consist of some sashes that are laid on some boards. Tae sashes are about 6 feet wide or 6 feet long, and 3 feet wide — and I don' t know just how long they were — probably 150 feet long. Q And how wide would you say? A Well, they would be 6 feet wide. Q And was there a sash on each side of the frame , or just one frame? A No , the sash was right on top of the frames. Q And the frame itself was 6 feet wide , or 12 feet ? A No, 6 feet wide. 4 Is this the deed to your property? A it is. Q Tnat includes all the land you own on Betsy Brown. Road in the mown of Rye, and is not limited to Lot 25B19, Block 6, Section 17 A No. MR. ROWE: I offer that. Deed referred to received in evidence , and marked. "Petitioner--Applicant ' s Exhibit 4. " 1 1© BY MR. C(WA_RD Q What were it used for before you went in) for commercial greenhouse? A Yes , it was. Q Mr. Katz conducted ,greenhouses there for years before you went in there? A Yea. BY MR. R OWE Q Did Mr. Katz conduct a wholesale or retail business? A He had both. Q Do you do any retail business at vie present ti.rae? A Not very mucn. Q About what percentage of your business is retail? A Oh, very little , between 5 and 10%. Do you know whet percentage of Mr. Katz ' business was retail? A No, that 1 don' t know. Q Could you say whetter it was more than five or ten per cent? A Yes , it was a great deal more than that. Q ne land which was not occupied by greenhouses when Mr. Katz occupied the place, as I understand you, you say was covered with flowers? A Yes , it was all cultivated and planted out. BY MR. QUIGEL: Is the business which you conduct conducted entirely within the enclosure? You don' t have stands on the Bide of the street for display and sale of your merchandise? A No, we have none. BY MR. C99ARD: Q Are the same heating plants in your greemaouses that were in there wnen you went in? A Tnat' s right , yes , the same boilers. Q They were there when you took possession of the place? n Yes , probably about 50 years old. BY MR, SMITH: Q How long before you applied for the building permit did you acquire your materials for the building I am speaking of the necessary steel, which I presume is there? A On, I believe that was ab�)ut eight months or so. BY MR. BILAS: � Did I understan(314d w property WiML across the street on Betsy Brown Road — were there any houses on tnat property across the street at the time Katz owned it? A No, there were no houses across the street wnen he occupied it. �a Even when you started there? A No. BY MR. ROWE: Can you tell the Board whit houses were there when you went into occupancy? A The only house that was there wnea I occupied it was the house that Gans lives in now. Where is tna.t? A That is on Argyle Road. Q Is that the house Mike Williams owned? A Yes. Q And that was the only house near the greenhouses then? A Yes. BY MR, C 01VAHD Q That wasn' t on Betsy Brown Road? i A No, there were ansolutely no houses on Betsy Brown ?load, except way down near King Street. Q fine only nouses on there, when you went in were out toward King Street? A Yes. Q And my house was one of them? A Yes. Q And the rest near you wasn't developed at that time? A No. Q But the road was out tnrough there , was it? 13 A Yes. BY MIS. SMITH: Q That have you in mind to grow in this greenhouse? A Well, I intend to use it for experimental purposes , hybridizing hardy azaleas. What does that mean to the layman? A Cross-breeding there, trying to develop larger flowers and varieties than we have now. MR. R OWE: I have three petitions here , containing approximately 300 names and signed by almost all of the people. SIR. gUIGEL: The petitions are the same , but three different sets? MR. R3VE: Yes , the petitions are the same, but the names are different. MR. SMITH: You say all of the people - what do you mean? MR. R0WE: Well, it isn' t all - maybe three or four. MR. SMITH: When you say all the people, where do these people reside? M.R. R OWE: Betsy Brawn Road, Argyle Road, immediately adjoining the greenhouse property. I guess some of them are down around the High School too. anyone who might be affected by it. 14 MR. FERRIS: What is the general intent of tna,t petition? MR. ROWE: Well , to indicate to the Board that 99% of the people in the neighborhood have no objection to the greenhouse. MR. BILAS: May I suggest the petition be read? MR. QUIGEL. Yes , assuming they are offering it? MR. RGWF: I offer this petition, which is in three parts. Papers referred to received in evidence and marked "Petitioner--Applicant ' s Exhibit 5. " Mr. Bilas thereupon read the petition, Petitions — Applicantts Exhibit 5, togetner with the signatures BY MR. COWARD: Q Mr. Hansen, is this building now connected with the heating system in any of the other greenhouses on the premises? A No. Q Are the premises now being used the building itself, is it being used now? A No, no. 'witness excused. MR. QUIGEL: Is anyone appearing in opposition to tti.is appeal? MR. RICHARD B. ALTON: I understand the Communi y 15 Association wrote a letter on the subject. Have you received it? MR. BILAS: I received the letter tonight at about 6:00 o' clock. It was brought to me by Mr. Comstock,, and I gave it to Mr. Coward, I believe , or I left it there. Letter of Community Association, dated November 5th, 1548, referred to, was read by the Secretary, Mr„ Rila.s. MR. RICHARD B. ALTON: I am Mere as an individual,, not representing the Association. I would like to ask Mr. Hansen a couple of questions. NEILS V. HANSEN, recalled as a witness , testified as follows: BY MR. ALTON: Q You say, &1r. Hansen, that in .March your .greenhouse was ninety per cent. completed, that included the glass? MR. ROWE: March of whs.t year? MR. ALTON: 19146 -- I believe. A That included glass? No, I said not. Q Just the framework was up? A Yes. Q Sometime in February weren't you approached by Mr. Neilsen and told there were objections being raised to this greenhouse on the ground there was a violation of the ordinances? �s A I don' t know whether it was in February, or sometimereef re the first of the year. Before the first of the year? A Yes , I think it was the time — later on we stopped working on it , and then we had a meeting of the Town Board. Q Well, it is hard to remember dates. I have dates here. A I know one time we were notified we had opposition to it , we stopped Working three or four weeks. Q When dial you start the greenhouse? A When did we start it? Yes? It was after the first of the year, wasn' t it? DER. RGiiE: Let him answer the question* A It was in October or November , 1945, right after we got the building permit. Q But you don' t recall being told by dr. Neilsen it was being challenged on the grounds of violation? A Yes , and we stopped work then, Q When was that? A About a month or two after we started on it. Well, that doesn' t jibe with the records I have. At that time I was president of the Association. A You were at the meeting yourself , and you didn' t say anything about the greenhouse. We had stopped work on the greenhouse two or three weeks before that. 17 Q At that time how far were you completed? A That I don+ t know. It wasn' t anywhere near ninety per cent? A No , it wasnO t ninety per cent. q Probably it was less than half that? A I can' t remember that. MR. ALTON: As I recall passing by, my lay statement would be half completed. MR. aLTON: Now, gentlemen, personally I feel sorry for Mr. Hansen. I think he has got himself in a little tight spot. Maybe he was gold a bill of goods by somebody , I don' t know, but the facts the Board is concerned with is mostly a matter of law. The question resolves itself, has the Board the right to say "sere is a violation, but you go ahead and do it"? This permit which you were issued called for alterations. I tnink Referee Close cites that in hiss Findings of Faot , and actually what you have done is built an entirely separate building, have you not? It is not even an extension of the present building. TAR. HANSEN: Well , you can call it an entirely separate building, but how otherwise could you extend, i the greenhouse? I MR. ROWE: The plans and specifications were approved by the Building Inspector before the permit was issued, and show specifically what Mr. Hansen 1� was going to do. MR. ALT ON: The plans and specifications show they were entirely separate buildings? MR. RUKE: Yes. MR. ALTON: Well, if the permit was issued for that , then one way it says it o.k` s the plans and speci- fications and in another way it bays he can only do the alterations - that is not very consistent. As to these petitions signed - I notice almost half of them are signed by the madam of the house as well as the master, and in some respects I think you can dis- count that. I know one particular case , and on good authority have heard from another which reaches me , I believe some of the people don' t realize what principles are at stake in this case. As I said before , and as the Association said, it is a. question of upholding your zoning ordinances. You have zoning ordinances that have been enacted for the benefit of the entire community, to preserve the building plans. If you are going to allow constant variances , and I might say chiseling into it - a.nd we had quite a few variances , but minor ones , of course, - you put a person in the position of wondering what is going to happen neat. As I said before , it is a question of law, and I don' t see how the Zoning Board 19 can say — here is a case of violation, even Referee Close said that it is a violation — and one of such magnitude , if you can say it is all right , you cn.n use it , it doesn't make sense to me. MR. ROWE: You know, do you no-c, that the findings of fact are not part of the judgment? What binds the court and binds Mr. Hansen is the judgment in the case, and not the findings of fact , and if he were to appeal, or anyone were to appeal, tr1ey would not appeal from the findings of fact but from tile judgment. That is the law of the case. MR. ALTO': To rye it is a very peculiar decision. Of course , not being a lawyer , I can' t understand some Way of doing things. It is Number 2 of the conclusions of law , he puts you in the position you win, but you lose. CMR. ROWE : It also says "The plaintiffs are not entitled" — that is Mr. and Mrs. McCullough — "to judgment ; permanently enjoining and restraining the defendant , Neils V. Hansen, his successors and assigns, and their agents, servants and employees , from completing the erection of the present greenhouse , if not heated; that the plaintiffs are not entitled to judgment permanently re— straining and enjoining the defendant, Neils V. Hansen, hio successors and assigns , and their agents , servants and em— ployees , from using said new greenhouse for commercial pu 20 poses , if not heated" , and so forth; "tiiat plaintiffs are not entitled to judgment permanently enjoining and restraining the defendant , Neils V. Hansen, " etc. "from using said new greenhouse for research and experimental purposes , if not heated, " and no found definitely that the mere erection of the new greenhouse was not damaging to the plaintiffs -- if you want to talk about the finds I as MR. ALTON: He does say in his conclusions of law, Paragraph 2 , that the greenhouse was a violation. MR. ROTE: But he did not say it in the judgment. MR. ALTON: I don' t see where the Judge can set aside that ordinance , and that is what he is doing - he says it is a violation, and if it is a violation he cannot use it , the building inspector is not authorized to give him a certificate of occupancy. MR. ROWE: It is not a violation, and if it were a violation the Judge would have restrained Mr. Hansen from completing the greenhouse , and would not have permitted him to use it. MR. ALTON: He says it is a violation. MR. R OWE: In nis decision he decided against dr. and Mrs. McCullough. MR. ALTON: That is from - MR. ROIAT: From everything restraining them - you asked for an order restraining them, and it was denied, SIR. ALTON: Yet whether the court takes into consideration the intent of this zoning ordinance, thn.t really should be the basis of the decision. MR. *UIGEL: Do yuu know whether or not the women who signed ti,Is petition were the owners of record of the property where they reside? MR, ALTON: +dell , I don' t know, some of them may not be owners of record. MR, �UIGEL: Would you say specifically a number would be? MR. ALTON: I wouldn' t say that , I would guess that a good deal of thhis property is in ,point names , that seems to be the common practice. On the other hands some are not, MR. (,UIGEL: �ffien did the Community Association take the action set fortn in the communication before the Board? MR. ALTON: Well , Lice Community Association first learned of this w MR. QUIGEL: I mean this letter? MR. ALTON: That was a meeting of the Executive Board. MR.. 0,UIGEL: When was ti,at held? MH. ALTON: I believe we discussed tnis for about as three weeks , is that correct , Mr. Wallace? MR. WALLACE: I believe that is correct . MR. QUIGEL: When was action taken authorizing and directing someone to make these statements? MR. ALTON: Of the Association? MR. QUIGEL: Yes. MR. ALTON: Well, there has not been any recent passing from the Association. MR. QUIGEL: Well, it bears date November 5th. I want to know if there was any recent action? MR. ALTON: No, it is not . The Executive Board was empowered to take whatever action necessary, back in January, 1946, to enforce and uphold the zoning ord— inance. MR. QUIGEL: This letter was prepared then with— in the last few days? MR. ALTON: Yes , pursuant to a meeting held abou three weeks ago, of the Executive Hoard. MR. QUIGEL: The Association is comprised of residents of the area? MR. ALTON: Yes , about 200 members. I&R. QUIGEL: Do you recognize a lot of members o the association having signed the petition? 23 MR. ALTON: Yes. MR. QUIGEL: On one hand they directed the Association to prepare a communication in opposition, but signed diametrically a petition for the applicant? MR. ALTON: It seems so. MR. ALTON: Triere has. been complaint about the smoke hazzard from that greenhouse about three or four ydars. MR. CLIFFORD McCULLOUGH: That was taken up .by the residents of Tamarack Gardens seven or eight years ago. MR. ALTON: They even went so far some years back to prepare a petition and send it to the Town Board. They also took it up with the White Plains Health authorY- ities , and trey sent a man over to see what was to be done about it. They talked to Mr. Katz , and he made certain promises I am not too sure about. MR.HANSEN: Why mention it if you are not sure about it? MR. ALTON: The interesting part , the ones who complained sbout the smoke hazzard, their names appear on that petition, so I maintain you will find quite a few people there innocently: I don' t know what Mr. Hansen or his representatives told them when trey asked them to 24 sign the petition, probably gave them a hard luck ,story. As I do myself, or anyone else do, they let their sympath ei run away, and not realizing the importance of the zoning matter , they signed it. Some people sign anything. I MR. QUIGEL: What would you expect the Board to do about trat? MR. ALTON: I said before the Hoard' s sole co n- cern is the matter of the zoning ordinance and its intent. MR. QUIGEL: But you were about to say a moment ago, I think - I don' t want to anticipate what is in your mind -- someone was of bad faith connected with the smoke nuisance? n. ALTON: I won' t say bad faith , perhaps not Intense action to counteract it. This nuisance has been in existence seven years , - and at the time they had a photo. I know people on Betsy Brown Road say it is no hazard, some people even say they never saw smoke. MR. QUIGEL: I am a bit confused . I assume there are remedies at law for abating nuisances. MR. ALTON: Evidently there is no way to make the defendant change his heating system. MR. BILAS: May be a smoke nuisance, and in 86 the course of three or four years they found no smoke. Did these people who were first approached and signed this other petition you mentioned, if my recollection is correct , have subsequently found there was no smoke damage and no smoke nuisance , and then signed this petition? MR. ALTGN: I cannot speak for tLem, but common ense tells you if there was a smoke nuisance five or six years ago, and them are no changes in the heating plant , or anything done to rectify it , the conclusion is obvious , the nuisance is still there. The people have to paint their houses quite often. Some women complain about putting the wash out — MR. ROWE: That is just the apposite to what all the people testified to at the trial. If you want, I will read the record, if you want to stay here long eough, of the people in that neighborhood. kR. ALTGN: I will concede the people to the north may have testified — MR. 'RC%E: And south, and east and west. MR. McCULL OUGH: I question that myself. That is an illegal statement . kind of a statement is that? MAR. ROWE: It is the fact. 86 MR. QUIGLE: Read the record if it is not too long. MR. ROWE': It would take all night to do it, of course. MR. ALTON: Do you have any objection to patting that in evidence? MR. ROWE: No , I have no objection to it ,going in evidence. I will offer it absolutely. Record referred to received in evidence and marked "Petitioner-Applicaat ' s Exhibit 6. " MR. McCULLOUGH: Originally I was going to say that most of this testimony, except for the cost of the building as completed, is a matter of record in the Supreme Court. I haven' t heard anything different than I heard when I attended the session myself, and I have been told by Mr. Connolly, in fact , that we didn' t need representation here tonight , because he said this board had no legal means of changing the official Referee ' s decision, and went so far as to tell me Mr. George Becker backed him up on that. We didn' t intend to fight , I came to listen, but I wFa very much surprised when I heard that list of names , because it has been brought to my attention by a dozen People around my neighborhood, and I heard about five different i 27 stories submitted to me. Naturally I didn' t see it , but people have told me — Mrs. Rosenquest said she didn' t know what the paper was all about , but sne signed it. People didn' t reed it. Mr. :hockey, — who seven years ago asked rye to sign the petition which he had his own attorney draw up — "Will you complain about this smoke nuisance" ? Certainly , because it affects me. I am directly to the south of this green— house, and it was testified in court the prevailing winds are from the north, and my house is hit any number of times a day by thick yellow fumes — and Mr. Rockey was approached by Mr. Hansen — I got it from his wife , he wouldn' t talk to me , I was talking to his wife — she said fir. Hansen come in, Mr. Rockey took him in the dining room, showed him damage from smoke — "This couldn' t be, that doesn' t come from my greenhouse, but from McCullough' s chimney. " I have an oil burner. So they give me tole impression in so many words they will sign this thing in order to have Mr. Hansen take action against the smoke. The greenhouse didn' t mean anything, they didn' t care about that. The other day Mrs. Rosen— quest was bowled over by sulphur fumes , and let out a loud howl when she saw smoke coming from that chimney on this sixty degree day, and she doesn't know why she sign ,d it. Mr. Hosey signed it because he didn' t want trouble. ! 28 They don' t have to sign anything. MR. ROWE: Is firs. Rosenquest here? MR. McCULLOUGH: No. MR. ROWE: Is fir. Hosey here? MR. McCULLOUGH: No. MR. ROWE: I think they should be here if this Hoard is going to take that into consideration, I think they should be here. I don' t think Mr. McCullough is their authorized representative. MR. McCULLOUGH: Shall we strike it off the record? I am perfectly Willi rg to have it taken oft the record. Let me say this for the record -- this petition doesn' t mean anything to me , because a lot of people who signed that are good friends of mine. I don' t trunk they know want they signed, but neverthe- less a great many names , it' s just like taking them off a tombstone, writing in names on Argyle Road, names of owners of lots - how trey would be affected by anything; people from Poningo Street - Main Street . There are a four people in the Scnaeffer-Bach house. Of course that builds up the list. MR. ALT ON: How many names on the list? MR. ROWE: I didn' t count tr_em, but I think approximately 300. MR. McCULLOUGH: There are not 300 in that section. It doesn' t affect me , I still have a lot of good friends , people on that list. MR. COWARD: Mr. McCullough, when you bought this mouse where you lure , the greenhouse was there when you bought it? MR. McCULLOUGH: That' s right. I bought it in August , 1937. MR. ALT ON: Of course that doesn' t say he went into it blindly -- we all go into things blindly. MR. McCULLOUGH: Of course what we are talking about is a violation of the law now , not what I saw in 1937. MR. BILAS: As I understand it , there was only one house in the area at the time Mr. Hansen took over - the house Gans lives in, formerly Williams? MR. McCULLOUGH: That is not correct. MR. HANSEN Whet do you mean, not correct? Your house wasn' t built at the time. MR. BILAS: In the testimony -- I refer to the testi- mony of Frances N. Perkins , witness: ( Reads from Petitioner- Applicant ' s Exhibit 6) "DIRECT EXAMINATION BY MR. ROWE: Q Where do you live , please? A Huntington, Long Island. Q, Did you at any time live in the Town of Rye , on Argyle Road? 30 A Yes. Q What was the number of that house on Argyle Road? A 21. Q Were you the owner of the house? A I was. My husband and I owned it. Q Will you tell Judge Close which side of Argyle Road that house is situated on? A Th=t is on the north side , west of Mr. Cliffoli McCullougn, next door to Mr. Clifford koCullough. Q When did you move into that house, Mrs. Perkin ? A Abuut the middle of December , 1945. Q When did you vacate the premise$? A In October, 1946. Q Did you ever observe smoke coding from the stacks of the Hansen greenhouces? A I never noticed any smoke over there. Q Wnile you occupied that house did you occupy a rear bedroom? A Yes , two bedrooms in the rear. Q Did you have the windows in the bedrooms open on occasion? MR. CONNOLLY: I object to it , if yo Honor please , as leading and suggestive, REFEREE: I will take it. 31 MR. CON14OLLY: Exception. A Yes , we had the windows open in the bedrooms. Q Did you detect any signs or evidence of smoke or soot? A I never noticed any. Q Will you tell the court whether you ever detected signs of smoke damage or soot around your house at any time? A Well, I nave never noticed the smoke at all." MR. BILAS: I believe Perkins was tae owner of that house immediately prior to the time Gans bought it. I think Perkins bought the house from Like Williams? MR. McCULLOUGH: Yes. MR. BILAS: That house is right next to yours? Mc.. McCULLOUGH: Yee , westerly. MR, BILAS: Any question those signatures are not valid? MR. licCULLOUGH: I would like that date. MR. ALTON: According to the dates I have you people bought the house in August , 1937? MR, McCULLOUGH: Didn' t fir, Hansen testify he took over in 1935? As a matter of fact my house was there in 1935 ^ house across the street. MR. ROVE: You didn' t own it in 1935. 1 32 SIR. McCULLOUGH: No, I am talking about existing houses. MR. HANSEN: Your house was not completed in 1935. MR, McCULLOUGH: It was completed, because there was a tenant in there a year and a half before I went in. f MR. HANSEN: That is not true. MR. McCULLOUGH: I say it is true. MR. ROWE: According to the testimony it is not. SIR. McCULLOUGH: Whose testimony? MR. ROWE: I haven' t gone through it , but the testimony as given before the Referee there. Yuu didn' t refute it. MR. ALTON: It says "said house was not completed for several months , " and so forth. MR. QUIGEL: I think Mr. Hansen' s testimony went to the date when he first observed conditions there. I think he testified at the outset this particular house discussed here was there in 1927 when he first appeared . on the scene. That is any recollection of the testimony. MR. McOULLOUGH: The Gans house wasn't there then? MR. ROWE: Mr. Hansen said the Gans house was 33 the only one there when he went in there in 1IJ35 , and of course Judge Close found all that . What Mr. Alton is quoting is Clifford McCullougi' s house was not completed until a couple of months after Mr. Hansen went into occupancy. kR. '%UIGEL: Is there anything further? MR. ROWE: I respectfully object to considera- tioa of this so-called letter of the Community Associa- tion on the ground it is signed by the Secretary, but there is nothing to indicate it is authorized in any way by the members of this Association. A majority of the people who signed this petition of Mr. Hanaen' s , I understand are members of the Association, and I think they would be very muoh upset if they knew about this letter, and also the letter contains many statements in it which are not facts , and which I have no opportunity to refute because the man who wrote it is not here. He says many things in it whien are not true , and if it is going to be taken into consideration I think I should nave an opportunity to question him, but aside from that I don' t see how it can bind this Community Associa ti on. MR. VIGEL: The Board will receive the commuai- Cation. i 34 XR. ALTON: I would like to repeat the Associa- tion, Whim did authorize the Executive Committee to act on the zoning matter, never has taken any steps to rescind that action. We naturally assume it has power to look after community interests as a whole and pur- sue the matter. The Executive Committee has no personal axe to grind, they just look at the case from enforce- ment of the zoning,. MR. �UIGEL: The Board has heard the testimony; we will consider all the documents presented tonight and the oral testimony given. The meeting was thereupon adjourned.