
    In the Matter of Charles C. Allen et al., Respondents, v Nancy Adami et al., Constituting the Board of Zoning Appeals of the Village of Croton-on-Hudson, Appellants. Alan Seide et al., Intervenors-Appellants.
    Argued February 10, 1976;
    decided April 8, 1976
    
      Seymour M. Waldman and Louis Waldman for appellants.
    The court below erred in overturning the decision of the Zoning Board of Appeals, for the board properly construed the zoning ordinance as to impose a dual test, one of which petitioners admittedly did not meet. (Matter of Stengler v 
      
      Commerdinger, 50 Misc 2d 235; Matter of Long Is. Land Research Bur. v Young, 7 Misc 2d 469; Matter of Chasanoff v Silberstein, 6 AD2d 872; Khare v Incorporated Vil. of Massapequa Park, 62 Misc 2d 68, 35 AD2d 653, 27 NY2d 991; Matter of Bonan Realty Corp. v Young, 16 Misc 2d 119; City of Buffalo v Roadway Tr. Co., 303 NY 453; Matter of Leathersich v Wade, 20 AD2d 963; Matter of Greater N. Y. Corp. of Seventh Day Adventists v Miller, 54 Misc 2d 268; Matter of Feldman v Commerdinger, 26 Misc 2d 221; Matter of Soros v Board of Appeals, Vil. of Southampton, 50 Misc 2d 205, 27 AD2d 705; Matter of Fina Homes v Beckel, 24 Misc 2d 823.)
    
      Norman Sheer for intervenors-appellants.
    I. The court below erroneously construed the applicable section of the ordinance in holding that compliance with a single requirement would entitle petitioners-respondents to the special exception sought. II. Intervenors-appellants join with respondents-appellants in all other arguments on appellants’ behalf as set forth in respondents-appellants’ brief. (Matter of Feldman v Commerdinger, 26 Misc 2d 221; Matter of Soros v Board of Appeals, Vil. of Southampton, 50 Misc 2d 205, 27 AD2d 705; Matter of Fina Homes v Beckel, 24 Misc 2d 823.)
    
      William Cohen for respondents.
    I. Petitioners have established their right to the statutory exception. (Matter of Soros v Board of Appeals, Vil. of Southampton, 50 Misc 2d 205, 27 AD2d 705; Khare v Incorporated Vil. of Massapequa Park, 62 Misc 2d 68, 35 AD2d 653, 27 NY2d 991; Matter of Vollet v Schoepflin, 28 AD2d 706; Matter of Hatfield v Kempner, 35 AD2d 1010; Matter of Faranda v Schoepflin, 39 Misc 2d 400, 21 AD2d 801; Matter of Creamer v Young, 16 Misc 2d 676; Matter of Sommese v Zoning Bd. of Appeals, Vil. of Hempstead, 22 Misc 2d 628.) II. Regulations limiting the use of property must be strictly construed and if there is any doubt as to their meaning it must be resolved in favor of the property owner. (Matter of 440 East 102nd St. Corp. v Murdock, 285 NY 298; Thomson Ind. v Incorporated Vil. of Port Washington North, 27 NY2d 537; Matter of H. P. T. V. Corp. v McGuire, 58 Misc 2d 159.)
   Jasen, J.

Petitioners Charles and Lucretta Allen are the owners, as tenants by the entirety, of two contiguous parcels of land in a residential area of the Village of Croton-onHudson. Lot 8 was purchased from Morton Weinerman on September 12, 1962, and Lot 8A from Nathan Frankel on October 29, 1962. Lot 8 is improved with a single-family residence. Lot 8A, an unimproved parcel, is substandard under the current zoning ordinance which was enacted by village board of trustees on December 14, 1961. Hoping to develop this parcel themselves or to sell it for development, petitioners, in September, 1973, applied to the Zoning Board of Appeals for a special exception pursuant to section 5.1.7 of the ordinance. That section, as relevant here, provides as follows: "A lot owned individually and separately, and separated from any adjoining tracts of land on January 22, 1962, which has a total area or width less than prescribed herein may be used for a one-family residence in RA Districts and a two-family residence in RB Districts, provided such a lot shall be developed in conformity with all applicable district regulations, other than the minimum lot area and lot width requirements, and with the minimum side yards set forth below”. Petitioners take the position that, having shown that Lot 8A was owned individually and separately on January 22, 1962, they were entitled to the requested special exception. The Board of Zoning Appeals and the intervenors, while conceding separate and individual ownership of Lot 8A on January 22, 1962, contend that section 5.1.7 also requires that the lot be owned separately and individually at all times subsequent to that date, up to and including the date application for a special exception is made.

The ordinance before us does not clearly provide that common ownership arising subsequent to January 22, 1962 would effect a merger rendering the exception permitted by section 5.1.7 inapplicable to such commonly held adjacent parcels. Had the village intended to impose such a condition on the exception, it could easily have done so. (Matter of Soros v Board of Appeals of Vil. of Southampton, 50 Misc 2d 205, 208, affd without opn 27 AD2d 705.) Since zoning regulations are in derogation of the common law, they must be strictly construed against the municipality which has enacted and seeks to enforce them. (Thomson Ind. v Incorporated Vil. of Port Washington North, 27 NY2d 537, 539; Matter of 440 East 102nd St. Corp. v Murdock, 285 NY 298, 304.) Any ambiguity in the language used in such regulations must be resolved in favor of the property owner. (Matter of Turiano v Gilchrist, 8 AD2d 953, 954.) Therefore, since this ordinance does not clearly provide that adjacent substandard parcels must continue to be separately owned to qualify for the exception, we hold that the petitioners were entitled to the special exception upon a showing that Lot 8A was owned individually and separately on January 22, 1962.

A contrary holding could lead to a rule that a substandard parcel merges into an adjoining parcel when both come into common ownership unless the ordinance creating the special exception specifically provides to the contrary. Neither the case law nor sound public policy permits such a rule. A merger is not effected merely because adjoining parcels come into common ownership. (Hemlock Development Corp. v McGuire, 35 AD2d 567.) The contrary view would undermine the many cases which have held there to be no merger in the absence of a specific merger clause. (E.g., Matter of Soros v Board of Appeals of Vil. of Southampton, 50 Misc 2d 205, 208, affd without opn 27 AD2d_705, supra; Matter of Feldman v Commerdinger, 26 Misc 2d 221, 222; Matter of Fina Homes v Beckel, 24 Misc 2d 823.) Indeed, were that the rule, there would be no need for the specific merger clauses found in such cases as Matter of Vollet v Schoepñin (28 AD2d 706), Matter of Faranda v Schoepflin (21 AD2d 801) and Matter of Creamer v Young (16 Misc 2d 676).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel (dissenting).

The majority relies upon cases invoking ordinances with language quite different from that involved in this case. With the analysis of those cases I have no disagreement.

Section 5.1.7 of the Zoning Ordinance of the Village of Croton-on-Hudson in pertinent part provides: "A lot owned individually and separately, and separated from any adjoining tracts of land on January 22, 1962, which has a total area or width less than prescribed herein may be used for a one-family residence in RA Districts and a two-family residence in RB Districts”.

Read in accordance with its syntactical construction, the ordinance prescribes two standards for an exception: (1) the lot must be owned individually and separately, and (2) the lot must have been separated from any adjoining tracts on January 22, 1962. True, where a contrary intent or an absurd result would otherwise follow, strict rules of grammar and punctuation will be disregarded (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 251, 253). The ordinance should, however, be read as it is written and the court should not "rearrange the wording” of the ordinance (see Allen v Minskoff, 38 NY2d 506, 511). The use of the comma before the conjunction "and” indicates that the first clause imposes a requirement separate and independent from that imposed by the second.

The proper syntactical rendering of the ordinance makes sense. Cases in which courts have reconstructed the syntax or punctuation of a statute did so because the statutory language was deficient in making its meaning clear (see, e.g., Matter of Brooklyn El. R. R. Co., 125 NY 434, 444-445, where to make legislative sense a comma was "removed”). That is not the situation here.

Judges Gabrielli, Wachtler and Cooke concur with Judge Jasen; Chief Judge Breitel dissents and votes to reverse in an opinion in which Judges Jones and Fuchsberg concur.

Order affirmed, with costs.  