N.Y. Defense Emergency Act 1951 784/51 § 38: Compliance with local building regulations and restrictive covenants

§ 38. Compliance with local building regulations and restrictive

covenants. 1. As used in this section:

"Department" shall mean the department, bureau, division, agency or

person, including any joint agency, of a county, city, town or village,

charged with the enforcement of the applicable building code, multiple

dwelling law, multiple residence law or other law, as defined in section

three of this act, relating to the construction, maintenance and use of

buildings, structures or other real property and to the control of land

uses in such county, city, town or village.

"Owner" shall mean the owner or owners of the freehold of the premises

or any lesser estate therein, a mortgagee or vendee in possession, an

assignee of rents, a receiver, executor, trustee, lessee, agent or other

person, firm or corporation directly or indirectly in control of a

building, structure or other real property.

2. Notwithstanding any inconsistent provision of law, as defined in

section three of this act, any shelter constructed or installed or

proposed to be constructed or installed in accordance with the plan,

regulations or orders of the commission pertaining to shelters shall be

deemed to comply with all provisions of law relating to the

construction, maintenance and use of buildings, structures, or other

real property and to the control of land uses, and the owner shall be

entitled to apply for and obtain, and the department shall issue, upon a

showing of compliance with such plan, regulations or orders of the

commission and upon payment of the appropriate fees, if any, any permit,

license, certificate, authorization or other document for such

construction, maintenance or use required by such provisions of law;

provided, however, that no such shelter constructed or installed or

proposed to be constructed or installed in accordance with the plan,

regulations or orders of the commission pertaining to shelters shall be

deemed to comply with such provisions of law nor shall any such permit,

license, certificate, authorization or other document be issued if the

department shall determine that such shelter will, because of its

structural arrangement, location design or other factor, substantially

deviate from the reasonable requirements of such provisions of law and

that such substantial deviation is unnecessary, at approximately the

same cost to the owner, to effectuate the purposes of this act with

respect to the provision of shelter protection.

3. Each county, city, town or village shall have power to adopt local

laws, and each department shall have power, in the manner provided by

law, to adopt rules and regulations, not inconsistent with this act and

the plan, regulations or orders of the commission promulgated

thereunder, necessary to execute and implement the powers granted and

the duties imposed by this section.

No provision of this subdivision shall be construed or interpreted as

affecting the validity of any ordinance enacted prior to July first,

nineteen hundred sixty-six, or actions taken thereunder by the

government of any county, city, town or village.

4. (a) The failure to grant an application for such permit, license,

certificate, authorization or document within sixty days after

submission thereof, may be reviewed by an owner in the manner provided

by law for appeals from determinations of the department made in

enforcing the multiple dwelling law, the multiple residence law, the

state building construction code or any other provision of law relating

to the construction, maintenance or use of buildings, structures or

other real property or to the control of land uses.

(b) On any such appeal wherein a party relies for ground of relief or

defense or raises issue or brings into question the construction or

validity of any of the provisions of this act or the plan, regulations

or orders of the commission promulgated thereunder relating to shelters,

the court or agency having jurisdiction of the appeal, action or

proceeding may at any stage certify such fact to the commission. The

commission may intervene in any such appeal, action or proceeding.

5. The construction, installation or maintenance of a shelter in

accordance with the plan, regulations or orders of the commission

pertaining to shelters shall not be deemed a breach of a restriction on

the use of land heretofore or hereafter created by a covenant, promise,

negative easement, special limitation or condition subsequent and no

reverter shall occur, no possessory estate shall result and no right of

entry shall accrue by reason of such construction. No action or

proceeding may be commenced in any court in the state where such action

or proceeding is based on a claim or allegation that such construction,

installation or maintenance (a) constitutes a breach of such

restriction, (b) causes such a reverter, or (c) results in the creation

of such a possessory estate or the accrual of such a right of entry.