Phillips v. Village of Oriskany

• Citation: 57 A.D.2d 110,394 N.Y.S.2d 941
• Parties: Clayton F. PHILLIPS and Dean F. Burth, Respondents, v. VILLAGE OF ORISKANY, New York, Appellant.
• Decision Date: 15 April 1977
• Court: New York Supreme Court Appellate Division

Page 941

394 N.Y.S.2d 941

57 A.D.2d 110

Clayton F. PHILLIPS and Dean F. Burth, Respondents, v. VILLAGE OF ORISKANY, New York, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 15, 1977.

Kernan & Kernan, Utica, for appellant (Joseph S. Deery, Jr., Utica, of counsel).

Lockwood & Lockwood, Utica, for respondents (Timothy D. Lockwood, Utica, of counsel).

Before MARSH, P. J., and MOULE, DILLON, GOLDMAN and WITMER, JJ.

OPINION

WITMER, Justice.

In this action for a declaratory judgment defendant, Village of Oriskany, moved for dismissal of the complaint for failure, among other things, to state a cause of action, and plaintiffs cross-moved for summary judgment for the relief prayed for in the complaint. Special Term denied defendant's motion and granted plaintiffs' cross-motion; and defendant appeals.

In granting plaintiffs' cross-motion the court merely ordered that "plaintiffs have judgment for the relief demanded in the complaint". The complaint prayed for judgment declaring (1) that the use of such premises is a valid non-conforming use which can be legally transferred, (2) in the alternative, that the zoning ordinance of the defendant Village, particularly Article IX thereof, is unconstitutional and void and that it does not restrict plaintiffs; and (3) that the determination of defendant's Zoning Board of Appeals, dated September 19, 1974 is null and void.

Although the court's order did not specify whether it adopted item (1) or (2) of plaintiffs' alternative prayers for relief, its memorandum decision makes it clear that the court adopted item (2), by declaring that section 25 of Article IX of the ordinance is unconstitutional because of the provision that all non-conforming uses of land shall be discontinued within two years after its effective date, and any change must be from a non-conforming use to a conforming use.

The record shows that in 1959 plaintiff Clayton F. Phillips was using his property for a restaurant and soda fountain operation. In 1962 defendant enacted its zoning ordinance which placed the property in an R-2 District. In 1965 plaintiff obtained a liquor license and converted the use of his property to that of a restaurant and tavern. Because of alleged protests by neighbors and the change in use, defendant brought action against Phillips in 1969 to enjoin him from continuing the operation of his tavern business on the property. Defendant alleges that the action was settled and discontinued by Phillips' agreement to accept a limited variance for continuance of the tavern business in the premises only so long as he should continue to operate it; and in accordance with that settlement defendant's Zoning Board of Appeals on June 10, 1969 granted a variance to Phillips for such use, but "only so long as said premises shall be operated as a restaurant and/or tavern by the applicant". Phillips continued to operate the tavern under such variance, and in 1974 he entered into a contract to sell the property and business to plaintiff Dean F. Burth on condition that the variance to operate the tavern would be extended to Burth. On September 19, 1974 Burth's application to the Zoning Board of Appeals for such extension of the variance was denied; and plaintiffs then instituted this action.

After Special Term's order denying defendant's motion to dismiss the complaint and granting summary judgment thereon to plaintiffs, defendants moved for reargument. The court denied the motion; and defendant also appeals from such order of denial.

An order denying a motion for reargument is not appealable (Matter of Roberts v. County Court of Wyoming County, 39 A.D.2d 246, 248, 333 N.Y.S.2d 882, 885; affd. 34 N.Y.2d 246, 356 N.Y.S.2d 853 313 N.E.2d 335). In any event, such a motion is made on the papers submitted on the original motion, and new facts may not be presented thereon (7 Weinstein-Korn-Miller, NY Civ.Prac, P 5701.23). Thus, additional facts contained in the papers in support of and in opposition to the motion for reargument may not be considered on this appeal.

In its memorandum decision Special Term concluded that the 1969 action by the Village against Phillips to enjoin his operation of the tavern was settled upon owner Phillips' agreement to accept the variance as limited to the time that he personally should continue to conduct the business; but the court made no formal finding or order in this respect. Phillips has not cross-appealed. Although not admissible on this appeal, we note that in his affidavit in opposition to the motion for reargument Phillips denied knowledge of any such settlement agreement.

Insofar as Special Term granted judgment respecting item (3) of the relief requested, to wit, that the determination on September 19, 1974 by the Zoning Board of Appeals denying an extension of the variance was void and insofar as it declared that the restriction in the 1969 variance should have no legal significance, the judgment is a nullity, for the Zoning Board of Appeals was not made a party to this action and the court was without jurisdiction to make such adjudication. Moreover, such review of a variance must be had through an article 78 proceeding (Village Law, § 7-712, subd. 3; Island Park Taxpayers & Prop. Owners Assn. v. Sacino, 42 A.D.2d 729, 345 N.Y.S.2d 664; Siegel v. Lassiter, 6 A.D.2d 879, 177 N.Y.S.2d 894, lv. to app. den., 5 N.Y.2d 709, 180 N.Y.S.2d 1026, 154 N.E.2d 697), and with respect to the 1974 determination it must be instituted within 30 days (Village Law, § 7-712, subd. 3). The same statute also is a bar to an action for declaratory judgment for such review (Verbanic v. Nyquist, 41 A.D.2d 466, 344 N.Y.S.2d 406; Matter of Smith Co. v. Ingraham, 32 A.D.2d 188, 301 N.Y.S.2d 266).

With respect to item (2) of plaintiffs' prayer for relief, that is, that section 25 of Article IX of the Zoning Ordinance is unconstitutional, we must consider two sentences in that section. The sentence upon which the court specifically relied to find that the section is unconstitutional is, "All non-conforming uses of land shall be discontinued within two (2) years after the effective date of this ordinance as amended", etc. That provision of the ordinance was not invoked by defendant or the Zoning Board of Appeals in this case, and so there was no occasion for the court to rule thereon. Assuming that Special Term is correct in its view that the above provision of the ordinance is invalid and unconstitutional (see Matter of Dexter v. Town Bd. of Town of Gates, 36 N.Y.2d 102, 105, 365 N.Y.S.2d 506, 507, 324 N.E.2d 870, 871; Matter of Weinrib v. Weisler, 27 N.Y.2d 592, 313 N.Y.S.2d 407, 261...