Maturi v. Balint

Gallagher, J. This is a proceeding under article 78 of the Civil Practice Act to compel the superintendent of buildings of the city of Yonkers to issue a building permit. Petitioner’s application proposes to erect a building of two stories containing thirty-two rooms, a laundry and workroom, a boiler room, a kitchen and dining room and office space. Each room contains a cabinette unit with sink, range, refrigerator and cabinets, and each room has a toilet and shower. The rooms can be made interconnecting in pairs. Parking is provided for thirty-six automobiles. The property is located in a BA zone. The permit has been refused on the ground the structure is a motel which is not a permitted use in any district. In BA districts there are allowed, among other uses, those allowed in any residential district. In multi-family residence districts there are allowed apartment houses and hotels in some [1013] districts. Consequently, apartment houses or hotels are allowed in BA districts. As last amended by Yonkers General Ordinance No. 32 of 1949, both apartment houses and hotels are defined, the former as “ a building arranged, intended or designed to be occupied by three or more families living independently of each other as separate housekeeping units ”. A hotel is defined as “ a building arranged, intended or designed to be occupied, for compensation, by three or more individuals or groups of individuals living independently but having a common heating system and a general dining room ”. The instant application, if it does not meet the definition of an apartment, certainly meets the definition of a hotel. It is true that the instant amendment was adopted prior to the elaboration of the motel or motor court in recent years. The more modern of these structures would appear to be a simplified hotel for purely transient trade. The one at bar certainly comes within the above definition of a hotel. If the municipality seeks to differentiate between different types of hotels, it must do so specifically by ordinance. The ordinance before the court does not do so. The building for which a permit is here sought is clearly within the permitted uses of the ordinance. Petition granted. Submit order on two days’ notice.