Diocese of Rochester v. Planning Bd. of Town of Brighton

• Decision Date: 11 July 1956
• Parties: , 136 N.E.2d 827 DIOCESE OF ROCHESTER et al., Appellants, v. PLANNING BOARD OF TOWN OF BRIGHTON et al., Respondents and John C. Romano etal., Intervenors-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 849

154 N.Y.S.2d 849

1 N.Y.2d 508, 136 N.E.2d 827

DIOCESE OF ROCHESTER et al., Appellants, v. PLANNING BOARD OF TOWN OF BRIGHTON et al., Respondents and John C. Romano etal., Intervenors-Respondents.

Court of Appeals of New York.

July 11, 1956.

Porter R. Chandler, New York City, and David H. Shearer, Rochester, for appellants.

Leo Pfeffer, Will Maslow and Shad Polier, New York City, for American Jewish Congress, amicus curiae, in support of appellants' position.

Charles J. Tobin, Jr., Albany, for New York State Catholic Welfare Committee, amicus curiae, in support of appellants' position.

Andrew L. Gilman and Harold S. Coyle, Rochester, for respondents.

William F. Strang, Rochester, for intervenors-respondents.

FROESSEL, Judge.

This is an appeal pursuant to leave of the Appellate Division, Fourth Department, from an order of that court which unanimously affirmed an order, entered in an article 78 proceeding, of Special Term, Monroe County. Special Term dismissed the petition on the merits on the ground that no triable issue of fact had been raised, and affirmed respondents' decisions denying petitioners' application for a permit to build a church and school with necessary accessory uses and for a variance.

Petitioners allege that the population of the Town of Brighton (a suburb of Rochester) has been rapidly increasing and is now about 23,000, of whom more than 6,000 are Catholic. At present there is in Brighton but one Catholic church, Our Lady of Lourdes. This church was erected in 1928, and is inconveniently located with respect to worshippers residing in the eastern part of the town and is inadequate to accommodate them. The only parochial school in the town is attached to Our Lady of Lourdes, and was erected in 1948. It is also inconvenient to and unable to accommodate Catholic pupils residing in eastern Brighton. In 1953 the Diocese of Rochester (hereinafter called the Diocese), recognizing the inadequacy of existing facilities for members of its faith, established a new parish in the eastern part of the town.

After a diligent search, the only suitable property found to be centrally located and available (free from private restrictions) in the new parish was a tract of 14 acres owned by the estate of William A. E. Drescher, deceased, fronting on Eact Avenue in the town. On August 30, 1954 the Diocese agreed to purchase the Drescher property, and entered into a contract which conditioned the sale upon the Diocese's obtaining a permit from the planning board of the town to erect and use a church and school on the western portion of the property. The executor of the estate of William A. E. Drescher has joined in all the proceedings to date.

In 1933 the town board of Brighton adopted a zoning ordinance which, together with all amendments thereto and the zoning map of the town in effect at the time of the hearing, is incorporated by reference into the petition.

Section 2 of the ordinance states:

'For the purpose of promoting the public health, safety, morals or the general welfare * * * the Town of Brighton is hereby divided into four classes of districts, termed respectively:

(1) Residential Districts

(2) Commercial Districts

(3) Industrial Districts

(4) Agricultural Districts'.

Section 18 further subdivides the residential districts into three classes known as 'A', 'B', and 'C'. Section 19 defines the uses permitted in a Class A area, with which we are concerned, and provides: 'In Class A, no structure or the premises can be used and no structure shall be erected or altered which is arranged, intended or designed to be used in whole or in part for other than one of the following uses and accessory uses:

(1) Single family one and two story or two and one-half story detached dwelling, with private garage.

(2) Educational or Religious Building, Fire Station, Town Municipal Building, Police Station, Park and Park buildings, if approved by the Planning Board.' (Emphasis supplied.)

The Drescher property is located in a Class A residential district, and the Diocese accordingly made written application to the planning board and the board of appeals as follows: (1) to subdivide the property in order to set apart a large house located in the northwest corner as a life estate for the widow of William A. E. Drescher, deceased; (2) for 'permission to construct on and use the remainder of the west parcel' for a Roman Catholic church and school; and (3) to subdivide the east and west parcels as shown by the accompanying map so as to provide two L-shaped lots on each of which there shall be one dwelling, each having a frontage on East Avenue of at least 100 feet or, in the alternative, for a variance from the provisions of the zoning ordinance permitting the continuance of said two dwellings as they now exist.

The application was accompanied by a map which showed the proposed location of the church; school; meeting room; kindergarten, small games, open field and hard-top play areas; and parking lot which would accommodate 144 cars. The application stated that approximately 4 acres on the eastern part of the property are covered by title restrictions confining their use to residences only.

This application came on for a public hearing before the planning board and the board of appeals on September 14, 1954, at which time all the interested parties were heard. The minutes of that hearing are incorporated by reference into the petition. At this hearing, Mr. Ely, chairman of the planning board, stated that the Diocese's application was 'actually addressed to both the Planning Board and the Board of Appeals', the application for a permit being before the former. The attorney for the Diocese also stated that his application was being made under subdivision (2) of section 19 of the ordinance, and that the application for a variance 'is only an incidental matter and hinges entirely on whether or not we are permitted to use the west parcel for the construction of the school and church'. Evidence was then presented on behalf of the Diocese to the effect that Catholic parishes are territorial and that the church should be in the center of the parish; that there would be no traffic problem; that ample parking facilities are provided; that the proposed school is to be a grade school only, eventually accommodating 300 children; that there will be little change in appearance of the property on East Avenue; and that the new parish will serve about 380 families.

A number of residents of the area were heard in opposition, and they testified as to the inconvenience, annoyance and undesirability of having this church and school in the neighborhood. A real estate appraiser testified that in his opinion the rpoposed church and school would depreciate neighboring property from 5% to 10%.

Thereafter on November 15, 1954 the planning board filed its decision, dated October 14, denying the Diocese's application. This decision states that the exclusive question before the board is 'whether there should be a church and school at the applied for location'. In answering this question in the negative, the board based its decision on several explicitly stated grounds: (1) that the area in question has been completely built up, and that where such is the case and the locale is strictly residential in character, the imposition of a church and school would change the character of the residential use and enjoyment of the area and have an adverse effect on property values; (2) good planning, directed to enhancing property values, dictates that churches and schools should be built in areas where future residential development could accommodate itself to the church or school; and (3) good planning requires the maintenance of larger and more expensive homes which bear higher assessed values. The board stated that it was certain that the Drescher property would be subdivided and built upon, and therefore to allow a church and school at this location would result in a loss of potential tax revenue.

On the same day, a decision of the board of appeals (consisting of the same men as were on the planning board (Brighton Ordinance, § 50)) was filed, which denied the application for a variance. This decision states that, since the application for a variance was made subsidiary to and hinged entirely upon the planning board's granting the application for a permit and since this permission was denied, 'there is no purpose in granting or further considering the requested variance at this time'. The board of appeals also stated that the application for a variance so as to allow a church and school on the property is also denied.

Section 53 of the ordinance provides that any determination of the planning board may be reviewed by the town board. Accordingly, on November 17, 1954 petitioners applied for a review of said decisions, and on November 26th argument was heard thereon. At this meeting, the attorney for the Diocese stated that he was not asking for a variance, but was seeking a permit pursuant to subdivision (2) of section 19 of the zoning ordinance. On December 17, 1954 the town board filed a decision affirming the determinations of the planning board and board of appeals.

On December 9, 1954 petitioners commenced a proceeding pursuant to subdivision 7 of section 267 of the Town Law, Consol.Laws, c. 62 and article 78 of the Civil Practice Act for an order annulling the determinations of these boards, and directing that a permit issue and a variance be granted. That petition is also incorporated by reference in a second proceeding. ¹ This second petition, with which we are here concerned, was verified December 29, 1954 and seeks to review the determination 'against' the Town of Brighton, the planning board, the board of appeals and the town board. It alleges that if the planning board and the board of appeals had discretion to grant or deny the applications, said discretion was exercised in an arbitrary and unreasonable...