Bar Harbour Shopping Center, Inc. v. Andrews

• Decision Date: 23 October 1959
• Citation: 23 Misc.2d 894,196 N.Y.S.2d 856
• Parties: Application of BAR HARBOUR SHOPPING CENTER, INC., Petitioner, v. Robert J. ANDREWS as Mayor, William Chapman, Hyman Greenstein, Herbert Watson and Alfred J. Stansfield, as Trustees, constituting the Board of Trustees of the Village of Massapequa Park, Respondents.
• Court: New York Supreme Court

Page 856

196 N.Y.S.2d 856

23 Misc.2d 894

Application of BAR HARBOUR SHOPPING CENTER, INC., Petitioner, v. Robert J. ANDREWS as Mayor, William Chapman, Hyman Greenstein, Herbert Watson and Alfred J Stansfield, as Trustees, constituting the Board of Trustees of the Village of Massapequa Park, Respondents.

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

Oct. 23, 1959.

Hall & Casey, Oyster Bay, for petitioner.

Morton Koppel, Massapequa Park, for respondents.

BERNARD S. MEYER, Justice.

This is an Article 78 proceeding seeking a direction requiring the Village Board of Massapequa Park to issue a permit for a gasoline service station. The prayer of the petition is granted, and the matter is remanded to the Board with directions.

Prior to February 11, 1952, the Village zoning ordinance made such service stations a special permit use and provided for approval by the Board of Appeals. In February 1952, the zoning ordinance was amended to prohibit all such service stations and it was not until November 10, 1958, when Article XXVII was added to the zoning ordinance, that gasoline service stations were again permitted. The operative sections of Article XXVII read as follows:

'Section 1. No gasoline and/or service station shall be erected, altered, or extended except in Business 'G' or 'GG' Districts provided the property is abutted on the rear and side by property zoned Business 'G' or 'GG' and said plot shall have at least 150 ft. frontage and 100 ft. in depth.

'Section 2. No lot or plot shall be used for the sale or storage of gasoline or oil until the owner has made application for and received a special permit therefor from the Board of Trustees of the Incorporated Village of Massapequa Park after a public hearing held for that purpose.

'Section 3. In the interpretation and application, the provisions of this ordinance shall be held to be minimum requirements adopted for the promotion of public health, morals, safety or general welfare of this Village. Wherever the requirements of this ordinance are at variance with the requirements of any other adopted rules, regulations, codes or ordinances, the most restrictive or that imposing the higher standard shall govern.'

Petitioner herein is the owner of a 30-acre shopping center which, in August 1956, was changed from Business 'G' to a Business 'GG' District. Petitioner's premises are the only premises within the Village limits designated as a Business 'GG' District. On March 2, 1959, petitioner made application for a special permit under Article XXVII for a gasoline station to be erected at the northeast corner of the shopping center premises on a portion thereof having a frontage of 150 feet on Merrick Road and a depth of 125 feet. The application requested waiver of the full basement requirement because impractical in view of the ground water elevation in the area. The zoning maps and photographs attached to the papers show that the shopping center is bounded on the north by Merrick Road, on the east by Whitewood Drive (also called River Drive), on the south by Nassau Street and on the west by Harbor Lane. The property to the east of Whitewood Drive and to the west of Harbor Lane is zoned residential, and is partially, though not completely, developed. The property to the south of Nassau Street is zoned for and occupied by residences, except that opposite approximately sixty per cent of the southern boundary of the shopping center (between Whitewood Drive on the east and Birch Lane on the west) there is an elementary school. On the north side of Merrick Road, opposite the shopping center premises and for approximately one-half of the frontage of the shopping center on Merrick Road, running from Harbor Lane east past Cartwright Boulevard, are business buildings. Opposite the balance of the Merrick Road frontage of the shopping center is the Massapequa High School. The main entrance to the high school is at the western end of the high school tract, approximately opposite the middle of the shopping center premises. That portion of the high school tract which directly faces the proposed site of the gasoline station is vacant except for a few trees.

On May 25, 1959, after notice given in accordance with the ordinance, a public hearing was held, and on June 11, 1959, the Village Board denied the application. The resolution of denial recited that (1) erection of the gasoline station would create a traffic hazard by increasing the flow of traffic on Merrick Road, (2) the proposed site of the station is directly opposite a high school, (3) there are numerous gasoline stations in the vicinity of the proposed site, (4) the gasoline station was not set forth on the developer's original plan at the time it was submitted in 1952, and (5) the erection of the station would not be for the general welfare and safety of the inhabitants of the Village and would depreciate the value of the neighboring residential property.

The answer and return of the respondent Village Board denies certain factual allegations set forth in paragraph 13th of the petition and all of paragraph 14th of the petition, and sets up as affirmative defenses, first, that the action of the Board was taken by virtue of its legislative power and in the proper exercise of discretion, and second, that the petition is legally insufficient since it seeks to obtain judicial review of a legislative act. The objection in point of law made by the second defense must be dismissed. Rothstein v. County Operating Corp., 6 N.Y.2d 728, 185 N.Y.S.2d 813, has now made it clear that 'in making determinations upon applications for special exceptions under the zoning ordinance, the town board exercises judgment or discretion of a character which is reviewable as to reasonableness in a proceeding under [Article 78 of] the Civil Practice Act. * * *'

Respondent's answer is insufficient to raise any question except the legal objection since it does not state the pertinent and material facts showing the grounds on which the Board's action was taken, C.P.A. § 1291; Lemir Realty Corp. v. Larkin, 8 A.D.2d 970, 190 N.Y.S.2d 952; Pratt v. Larkin, 7 A.D.2d 869, 182 N.Y.S.2d 178. Under the circumstances, petitioner was at liberty, under the provisions of C.P.A. § 1297, to apply for a final order in its favor on the basis of the petition and accompanying papers. Since, however, petitioner served a reply and a reply affidavit, and since the facts which should properly have been alleged in the answer are set forth in the affidavit and other documents annexed to the respondent's answer, the court will consider the application on the merits, on the basis of the papers submitted, cf. Pratt v. Larkin, supra.

The last cited case held that Town Law, § 267(7) governs review of a Town Board's action in granting or denying a special exception. It follows from that holding that the corresponding language of Village Law, § 179-b governs review of the Village Board's similar action in the instant case. In consequence, the limitation set forth in C.P.A. § 1296 is not applicable and this court must determine all of the questions presented for determination under that section, whether related to law or to fact. However, neither the Rothstein case nor Lemir Realty Corp. v. Larkin, supra [8 A.D.2d 970, 190 N.Y.S.2d 954] spells out 'the precise nature of the function exercised' by the Board in passing on applications for special exception nor does either clearly define the limits of the review 'as to reasonableness' allowed.

The adoption and amendment of a zoning ordinance by the Village Board are legislative functions. The statutory authority of a Village Board with respect to zoning is contained in Village Law, §§ 89(30), 175 and 177. Uniformity for each class or kind of building within a district is required, Village Law, §§ 89(30), 178, and in the enactment or amendment of the zoning ordinance, specified procedures, including notice and publication, must be followed, Village Law, §§ 178, 179. Clearly, a zoning ordinance may entirely prohibit gasoline stations in a particular district (Suburban Tire & Battery Co. v. Village of Mamaroneck, 304 N.Y. 971, 110 N.E.2d 894, affirming 279 App.Div. 1084, 113 N.Y.S.2d 449, affirming, Sup., 104 N.Y.S.2d 850, n. o. r.), and an amendment to permit a station in such a district would be a legislative act. Clearly, also, if without specifying the particular districts in which gasoline stations will be permitted, the ordinance established standards for such stations and the Board then, upon application, rezoned property conforming to such standards, its action would be legislative, Rodgers v. Village of Tarrytown, 302 N.Y. 115, 96 N.E.2d 731; Nappi v. LaGuardia, 295 N.Y. 652, 64 N.E.2d 716, affirming 269 App.Div. 693, 54 N.Y.S.2d 722, affirming 184 Misc. 775, 55 N.Y.S.2d 80; Congregation Beth Israel West Side Jewish Center v. Board of Estimate of New York City, 285 App.Div. 629, 637, 139 N.Y.S.2d 645, 652. The general practice, however, is to specify in the zoning ordinance the districts in which gasoline stations will be permitted, but condition use of property in such a district upon the issuance of a special permit, after a hearing. Power to issue such a permit may be delegated to the planning board or board of zoning appeals, provided standards sufficiently definite to guide such board are adopted, Little v. Young, 299 N.Y. 699, 87 N.E.2d 74; see Concordia Collegiate Institute v. Miller, 301 N.Y. 189, 93 N.E.2d 632, 21 A.L.R.2d 544. Action by a planning board or board of zoning appeals under such a delegation is, however, administrative, Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N.Y. 86, 92 N.E.2d 903; Green Point Savings Bank v. Board of Zoning Appeals of Town of Hempstead, 281 N.Y. 534, 24 N.E.2d 319, appeal dismissed 309 U.S. 633, 60 S.Ct. 719, 84 L.Ed. 990. Difficulty in characterizing the nature of the action taken arises when, as here, the zoning ordinance specifies districts...