Mancini v. Kurtz

Action for a judgment declaring that a zoning ordinance, prohibiting the commercial excavation of sand, gravel, shale, top or common soil, without a permit, is void as in violation of the vested rights acquired by appellant and his predecessor in title prior to the enactment of the zoning ordinance, which placed the property in a residence use district, and the amendments relating to a permit for the excavation and removal of natural products. Defendants counterclaimed for a judgment declaring that the ordinance is valid, that appellant’s premises are subject to the provisions of the zoning ordinance relating to the use of natural products, and to enjoin him from removing top soil, sand and gravel, except in accordance with a permit from the board of appeals, as provided for in the ordinance. The judgment declares that the ordinance is void as to the parcel described in “ Schedule A ” and restrains respondents from enforcing the ordinance as to that parcel; declares that the ordinance is valid as to the parcels described in “ Schedule B ” and “ Schedule C ” and enjoins appellant from excavating *830or removing top soil, sand or gravel from those parcels, except with the permission of the hoard of appeals. The appeal is from so much of the judgment as dismissed the complaint and granted judgment on the counterclaim as to the parcels described in schedules “ B ” and “ C ”. Appellant argues that a vested right to such use, as a nonconforming use, existed at the time that the ordinance was enacted and amended. Judgment unanimously affirmed, with costs. No opinion. Present—Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ.