Hofstra College v. Wilmerding

• Decision Date: 10 August 1960
• Parties: Application of HOFSTRA COLLEGE, Petitioner, v. Henry A. WILMERDING, Walter R. Miller, James B. Baldwin, Charles S. McVeigh, Jr., and James W. Walker, constituting the Board of Appeals of the Incorporated Village of Old Westbury, or their successors in office, Respondents, and Old Westbury Civic Association, Hope N. Gardner and William M. Duryea, Intervening- Respondents.
• Court: New York Supreme Court

Page 476

204 N.Y.S.2d 476

24 Misc.2d 248

Application of HOFSTRA COLLEGE, Petitioner, v. Henry A. WILMERDING, Walter R. Miller, James B. Baldwin Charles S. McVeigh, Jr., and James W. Walker, constituting the Board of Appeals of the Incorporated Village of Old Westbury, or their successors in office, Respondents, and Old Westbury Civic Association, Hope N. Gardner and William M. Duryea, Intervening- Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 10, 1960.

Cole, Grimes, Friedman & Deitz, New York City, for petitioner.

Bennett, Kaye & Pius, Rockville Center, for respondents.

Sprague & Stern, Mineola, for intervening-respondents.

BERNARD S. MEYER, Justice.

Hofstra College owns a fifty-acre parcel of land in the Village of Old Westbury on which is located a two-story residence which with some alteration will accommodate approximately 200 students. The district (Residence BB) in which the property is located is zoned for single-family residences on two-acre parcels. The Village zoning ordinance permits (§ 401a non-profit college on a lot of not less than 50 acres in such a district when authorized by the Board of Zoning Appeals as a special exception. Its application for such a use permit as a special exception having been denied, Hofstra by this Article 78 proceeding seeks reversal of the Board's determination and an order directing issuance of the permit.

The Old Westbury Civic Association and two neighboring property owners have intervened as respondents. Intervening-respondents by objection in point of law question the sufficiency of Paragraph 15 of the petition which alleges that the ordinance is unconstitutional insofar as it purports to authorize a Board decision denying the application (a) because denial of the application does not promote the public health, safety, morals and general welfare, and (b) because by such authorization petitioner is discriminated against. In Diocese of Rochester v. Planning Board of Town of Brighton, 1 N.Y.2d 508, 520, 154 N.Y.S.2d 849, 856, the Court of Appeals stated the general rule to be 'that an application for a permit or variance under a zoning ordinance is primarily an appeal to the discretion of the board, which discretion is conferred upon it by the ordinance, and therefore by making the application the petitioner necessarily concedes, for the purpose of the application, the validity and constitutionality of the ordinance,' but left undetermined (with the parenthetical observance that 'there may be merit' in it) the argument that the 1952 amendment to Town Law, § 267(7) directing that 'the court at special term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination' under the provisions of Civil Practice Act, § 1296, changed that general rule. The identical language was incorporated in Village Law, § 179-b by Chap. 329 of the Laws of 1956.

The question whether petitioner is discriminated against by the requirement that it obtain a use permit is not one that may properly 'be presented for determination' in this proceeding since there is before the court no respondent who could be directed to issue a building permit were the court to conclude that the ordinance is discriminatory. This is not a proceeding such as Concordia Collegiate Institute v. Miller, 301 N.Y. 189, 93 N.E.2d 632, 21 A.L.R.2d 544, in which, in reviewing a Superintendent of Buildings' refusal to issue a building permit, the court passed on the constitutionality of a zoning ordinance amendment requiring board of appeals' approval of an educational use. Here only the Board is before the court; any determination that the constitution entirely precludes granting it authority to issue a use permit could result only in dismissal of the proceeding and thus would be feckless. Paragraph 15(b) of the petition is, therefore, insufficient and is stricken.

The question whether denial of a use permit bears substantial relation to the health, safety, morals or general welfare of the community goes, however, to the propriety and validity of the Board's reasons for its determination. It is thus a question 'presented for determination' and is, in fact, the question decided in the Diocese of Rochester case. True, the opinion in that case considered the constitutionality of the board decision rather than of the ordinance, but this necessarily followed from the fact that the only standard set forth in the ordinance was identical in language with the constitutional requirement: 'of promoting the public health, safety, morals or the general welfare' (1 N.Y.2d 508, at page 522, 154 N.Y.S.2d 849, at page 859). Where, as here, the ordinance sets forth specific standards pursuant to which the Board purports to act, the properiety and validity of a Board determination must be measured by (1) whether the Board exceeded the authority granted to it by the ordinance, (2) whether the Board so applied the ordinance as to infringe the constitution, and (3) whether the standards established by the ordinance infringe the constitution. Obviously, if all of the standards set up by the ordinance are invalid, or if the unconstitutionality of one part of the scheme of the ordinance renders the whole provision of no effect (see dissenting opinion in the Diocese of Rochester case, 1 N.Y.2d 508, 529, 154 N.Y.S.2d 849, 865), the Board will be left without authority and the proceeding will have to be dismissed. Those possibilities should not proscribe consideration of the constitutionality of the standards to the extent pertinent to this case, however. Partial unconstitutionality presents no problem, because, section 1600 of the ordinance specifically provides:

'If any section, paragraph, subdivision, clause or provision of this ordinance shall be adjudged invalid such adjudication shall apply only to the section, paragraph, subdivision, clause or provision so adjudged, and the rest of the ordinance shall remain valid and effective.'

Nor should the possibility that all of the standards might be invalidated prevent consideration of the constitutionality of each standard separately.

The argument to the contrary is based upon the general rule quoted above. Yet, examination of the cases cited in support of that rule shows that one of them, Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623, held that the expression of willingness to comply with the law evidenced by application for a common carrier permit did not estop applicant from attacking the constitutionality of the state statute imposing the permit requirement after the state agency denied the permit, and thus is authority against the rule. Analyzing the others, the court finds them to have been concerned with the jugular nature of the issue ('A successful attack upon the validity of the ordinance destroys the foundation of any discretion conferred by the statute,' Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 226, 15 N.E.2d 587, 589, 117 A.L.R. 1110); or to have held that a party may not retain a benefit received under a statute and at the same time attack its constitutionality (Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030; Shepherd v. Mount Vernon Trust Co., 269 N.Y. 234, 199 N.E. 201; but note the Supreme Court's reversal without mention of the rule in Joseph Burstyne, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 after the New York Court of Appeals stated [303 N.Y. 242, 260, 101 N.E.2d 665, 673] that petitioner having sought and obtained benefits under the statute should not be heard on the constitutional issue); or that the constitutional issue, not having been raised at Special Term, had been waived, Thomas v. Board of Standards and Appeals, 263 App.Div. 352, 33 N.Y.S.2d 219, reversed on other grounds 290 N.Y. 109, 48 N.E.2d 284; Robusto v. Tibbetts, 277 App.Div. 1008, 100 N.Y.S.2d 370; or that denial of a variance or exception is not a conclusive adjudication of the constitutionality of the provision authorizing the variance or exception, Arverne Bay Construction Co. v. Thatcher, supra; Baddour v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18, 124 A.L.R. 1003; Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517; or that under the then language of Town Law, section 267, the question could not be considered in a proceeding under that section, Holy Sepulchre Cemetery v. Board of Appeals of Town of Greece, 271 App.Div. 33, 39, 60 N.Y.S.2d 750, 754; Romig v. Weld, 276 App.Div. 514, 95 N.Y.S.2d 571, leave to appeal denied 277 App.Div. 833, 97 N.Y.S.2d 920. None but the last of those reasons has any bearing in the instant case, and the last is answered by the amendments to the Town Law (and Village Law) referred to above.

If any standard applied by the board violates the constitution a 'rule of law affecting the rights of the parties thereto has been violated to the prejudice of the petitionder' (C.P.A. § 1296In the light of that fact, of the 1956 amendment to Village Law, section 179-b, of the separability provision of the Village of Old Westbury ordinance, and of the policy against multiplicity of actions, the court holds that Paragraph 15(a) of the petition is sufficient and that it may consider the constitutionality of such standards in this proceeding.

We are thus brought to consideration of the reasons advanced by the Board. Necessary to an analysis of the Board's reasons is a reading of Section 1002 of the ordinance, which as it read prior to December 14, 1959, provided in pertinent part as follows:

'The Board of Appeals.

'In addition to its powers and duties provided in the Laws of the State of New York, shall have the powers to the extent hereinafter set forth, after public notice and hearing, and subject to appropriate conditions and safeguards, to determine and vary the application of the regulations herein established in harmony with the purposes enumerated in the Village Law and the general purpose and...