Balsam v. Jagger

• Decision Date: 20 July 1962
• Parties: Aldo R. BALSAM et al. v. Frederick R. JAGGER.
• Court: New York Supreme Court

Page 450

231 N.Y.S.2d 450

Aldo R. BALSAM et al. v. Frederick R. JAGGER.

Supreme Court, Special Term, Suffolk County.

July 20, 1962.

Matthews & Ostrander, Southampton, for petitioners.

Harold M. Platt, Southampton, for respondent Halsey.

Benjamin J. Michne, Bridgehampton, for respondent Bd. of Appeals.

HENRY M. ZALESKI, Justice.

This is an Article 78 proceeding to review a determination of respondent Board of Zoning Appeals granting rear and side yard variances to one Halsey.

At the outset, petitioners are met with a motion to dismiss for failure to state sufficient facts and because there is no showing that petitioners are aggrieved parties. Lengthy review of the petition is unnecessary. Suffice it to say that the petition in Paragraphs 17 and 19 alleges sufficient facts to sustain it. The Court also holds that petitioners are aggrieved parties. All that was decided in Hattem v. Silver, 19 Misc.2d 1091, 190 N.Y.S.2d 752 was that the statement that petitioner owned property 'in the immediate vicinity' was insufficient. Herein petitioners not only make that allegation, but also allege that the decision substantially injures them 'by seriously impairing the resale value of their properties * * *.' (Par. 20). That allegation is ample to entitle petitioners to maintain the proceeding. In any event, the objection is not well taken for the reason that the petitioners, by counsel, appeared at the hearing, objected to the application and cross-examined Halsey with the apparent approval of the Board. Any complaint relating to the status of petitioners should have been lodged at the hearing (cf. Bayport Civic Ass'n, v. Koehler, Sup., 138 N.Y.S.2d 524; Gerling v. Board of Zoning Appeals, 11 Misc.2d 84, 167 N.Y.S.2d 358, rev'd. on other grounds, 6 A.D.2d 247, 176 N.Y.S.2d 871). The motion to dismiss is denied.

Considering the application then, we begin with the rule that 'in reviewing board actions as to variances and special exceptions the courts do not make new or substitute judgments but restrict themselves to ascertaining whether there has been illegality, arbitrariness, or abuse of discretion.' (Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 24, 226 N.Y.S.2d 374, 376). Application of that rule requires that the petition be granted and the determination of the Board annulled.

First, the Board had no jurisdiction to act. The question of jurisdiction is somewhat complicated by reason of a prior application of Halsey to the Respondent Board. In September of 1961 Halsey applied to the Building Inspector for a permit to construct two summer rental cottages. On denial by the Inspector Halsey appealed to the Board on the theory that he was entitled to expand a non-conforming use (Art. XXIII, Sec. 4 of the Town Zoning Ordinance). The Board reversed the Inspector and gave Halsey permission to build on the ground that he had a non-conforming use which he was entitled to expand under the express provisions of the Ordinance (Art. XXIII, Subd. 4). That determination was eventually upheld by this Court.

In December, 1961 the Board on its own motion called a public hearing, as stated in the notice, to 'consider the following * * * Applicant requests rear yard and side yard variances.' The fact is that there was no application or request at all. The Board said to Halsey at the December, 1961 hearing that at the September hearing it 'failed to take into account you needed a rear yard variance' and further stated on March 8, 1962, the adjourned date of the hearing, that it 'failed to notice that * * * he would need a rear yard variance.' The minutes of the March 8 hearing show that the Board considered that it had an application before it 'by implication' in the sense that it could have granted the variances on the September, 1961 application but failed to do so by mistake and that the new hearing was held on the old application and to correct the error. However, this Court held in the prior litigation between these parties that variances could not have been granted as a result of the September application and that the September and December hearings were independent of each other (Balsam v. Jagger, N.Y.L.J. June 5, 1962). Following that conclusion, it must be held that the Board had no jurisdiction to act. Town Law, § 267, subd. 2 gives the Board appellate jurisdiction to 'hear and decide appeals from and review any * * * determination made by an administrative official charged with the enforcement of any ordinance * * *' and original jurisdiction to 'hear and decide all matters referred to it or upon which it is required to pass' under the Ordinance. By the Town Zoning Ordinance (Art. XIX, Sec. 1.A.) Jurisdiction over variances is expressly made a matter of appellate, not of original jurisdiction. To perfect such appeal, the applicant must apply for a permit and, on refusal thereof, file an appeal and pay the requisite fees.

The return herein discloses only the application to the Board in September. The record does not show a refusal by the Building Inspector thereafter to issue building permit nor does it appear that an appeal was filed with the Board. Indeed, for whatever it may be worth, the...