Matter of Kensington-Davis Corp.

Andrews, J. The charter of the city of Buffalo requires a written permit from the building commissioner before any new building is begun. (Laws of 1914, chapter 217, section 322.) If such building is a factory or manufacturing plant to be erected “ in any residence district of the city ” there is also required “ the consent of the council as herein provided, such consent to be evidenced by a resolution adopted by the affirmative vote of a majority of all members of the council and thereafter a permit by the mayor.” As a basis for action by the council a peti *57 tion is filed with the city clerk. This is referred to the city planning committee which reports among other things “ in what class or classes of the residential districts * * * the said building * * * is to be located.” Then the council acts with or without a public hearing. A “ residence district ” is then defined as “ a territory or district within one thousand feet in a direct line in every direction from the nearest part of the building proposed or intended to be located, built, constructed or used for the purpose of a factory or manufacturing plant, in which territory or district more than half of the existing buildings are used wholly or partly for residential purposes.” Residential districts as so defined are then classified. (Ordinances of the City of Buffalo, chapter 158.) Clearly this is the nature of a zoning ordinance. Authority to adopt it is said to be derived from subdivision 25 of section 20 of the General City Law. (Cons. Laws, ch. 21.) This subdivision confers upon the city the right '* to regulate and restrict * * * the location of buildings, designed for specified uses, and for said purposes to divide the city into districts and to prescribe for each such district * .* * the uses for which buildings’ may not be erected or altered. Such regulation shall be designed to promote the public health, safety and general welfare,” in accord with a well-considered plan. This ordinance is not a general regulation for the erection of all buildings in the city, nor is it primarily intended to prevent nuisances wherever situated- As is stated by the corporation counsel, it “ does not seek to regulate or prohibit factories and manufacturing plants in all sections of the city but merely those sought to be erected or used in a residence section as defined in the ordinances. The ordinance upon its face shows that its purpose is to prevent the unlimited encroachment of manufacturing plants and factories upon established residence districts, and provides limitations on and regulations of two separate and distinct acts; first, the actual *58 erection of a factory or manufacturing plant, and secondly, the use of any building as a factory or manufacturing plant.” Under the authority supposed to have been conferred by this ordinance the council has refused to grant its consent to the petitioner for the erection of a foundry upon premises owned by it already occupied for manufacturing purposes, and the building commissioner has refused to grant his permit. Their claim is that this proposed building is situated within a residential district as defined by the ordinance; that in such cases the council has the right to grant or refuse the request in its discretion or that in any event the council has the right to enact ordinances to prevent nuisances and that the prohibition of the erection of factories in a residential district without its consent is in pursuance of this power. These assertions, therefore, are based upon the proposition that the council, under authority of law, has fixed certain residential districts in the city of Buffalo and that the petitioner's property is within one of such districts. In the courts below a peremptory writ of mandamus requiring appellants to issue a written permit for the erection of the desired building has been sustained. The order so made by them must be affirmed. If, acting under the provisions of the General City Law, the city of Buffalo has failed to establish any “ residence district ” there is no justification for the refusal of the appellants to issue the desired permit as it is not claimed that the petitioner has not complied with all the other building ordinances of the city. Power was given under that law “ to divide the city into districts.” This clearly contemplated fixed, areas with defined boundaries. A plot of land must be either within or without a residential or business district. In Buffalo no such districts have been delimitated. There a residence district is a territory or district within one thousand feet in a direct line in every direction *59 from the nearest part of the building proposed or intended to be located for a factory in which territory more than half the buildings are used wholly or partly for residence purposes. So in this case the proposed building is the center of a circle by which the limits of the residential district are determined. All the property within that circle constitutes a residential district. Yet if an application is made for the erection of a factory three hundred feet south of the land of the petitioners, for the purpose of that application much of the same land might then be in another class of district. This is not a division into districts within the meaning of the statute. The attempted setting apart of residential districts, therefore, must fail as unauthorized and the ordinance attempting to give the council control of factory buildings in so-called residential districts which do not in fact exist must also fail. The petitioner is, therefore, entitled to its permit. Having reached this conclusion the various other questions argued in the briefs need not be considered. The order appealed from should be affirmed, with costs. Hiscock, Ch. J., Cardozo, Pound, McLaughlin and Crane, JJ., concur; Lehman, J., absent. Order affirmed.