Belle Harbor Realty Corp. v. Kerr
| Decision Date | 20 December 1974 |
| Citation | 364 N.Y.S.2d 160,35 N.Y.2d 507,323 N.E.2d 697 |
| Parties | , 323 N.E.2d 697 In the Matter of BELLE HARBOR REALTY CORP., Respondent, v. Andrew P. KERR, as Administrator of the Housing and Development Administration, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Adrian P. Burke, Corp. Counsel, New York City (Leonard Koerner, L. Kevin Sheridan and Jesse J. Fine, New York City, of counsel), for appellants.
Jesse I. Levine and J. Stanley Shaw, New York City, for respondent.
Early in 1972, the Belle Harbor Realty Corp. (Belle Harbor) submitted to the City of New York a new building application for the construction of a four-story nursing home. To secure a written permit from the Commissioner of Buildings as required by the Administrative Code (Administrative Code of City of New York, § C26--109.1) a builder must first obtain approval of his building plans from the appropriate departments (Administrative Code, § C26--108.8). This procedure is designed to insure compliance with the requirements of the Building Code and other applicable laws and regulations. Between July 6 and September 25, 1972 the requisite approvals were issued to Belle Harbor by the Department of Buildings, the Department of Water Resources and the State Board of Social Welfare.
Prior to the issuance of the written permit, citizens concerned with the inadequacy of existing sewerage facilities commenced an action against the city and Belle Harbor seeking to enjoin the city from issuing the permit (Oetjen v. Sigman, Index No. 1296 11/72). The city cross-moved for dismissal contending that the petitioners lacked standing and that the issuance of the work permits was a ministerial act in light of the approvals evidencing Belle Harbor's compliance with all the building and zoning requirements. This motion was granted and the complaint was dismissed.
Shortly thereafter in response to numerous complaints of sewer backups the city investigated the sewerage facilities at the proposed site. The city discovered that the municipal sanitary sewers which would serve the proposed home had been installed in 1889, had six inch rather than eight inch pipes, and required the repeated removal of sand indicative of open joints. The sum of this inquiry was that the sewers were 'grossly inadequate' for present use and therefore new sewer connections were unadvisable.
On the basis of this information the city notified Belle Harbor that the prior approvals were revoked. The city also indicated that plans were being made to consider a new sewer system for the area.
Belle Harbor reacted by commencing this article 78 proceeding to annul the city's revocation of its approval of the new building application and to compel the city to reissue all approvals and to issue all permits necessary to complete the construction of the proposed nursing home. Belle Harbor contended that the city had succumbed to community pressure thereby abdicating its civic professional responsibility. Moreover, Belle Harbor asserted that the revocations by the city was a delaying tactic until such time as the city council could act on proposed zoning changes which would adversely affect the construction of a nursing home in that area. The city responded by denying that it had bowed to political pressure. The city contended that the original approval for the sewer connections was given at a time when it did not know about the deteriorated condition of the sewers; consequently such approval was a mistake susceptible of revocation in the proper exercise of its police power.
Special Term agreed finding that the revocation of approvals and refusal to issue the permits were occasioned through a reasonable exercise of police power and dismissed the petition.
The Appellate Division reversed and directed the city to issue the requisite approvals and permits. Relying on Westwood Forest Estates v. Village of South...
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Wincamp Partnership v. Anne Arundel County, Md.
...adapted * * * citations omitted. Id. 297 N.Y.S.2d at 133, 244 N.E.2d at 702-03. Subsequently, in Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 364 N.Y.S.2d 160, 323 N.E.2d 697 (1974), a developer sought a building application for construction of a four-story nursing home in New York Cit......
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Haslund v. City of Seattle
...974 (1973) (warranty theory); Cf. Belle Harbor Realty Corp. v. Kerr, 43 A.D.2d 727, 350 N.Y.S.2d 698 (1973), Rev'd, 35 N.Y.2d 507, 364 N.Y.S.2d 160, 323 N.E.2d 697 (1974).Whether a local government stands in such a relation to a permit applicant that the law will impose upon him an obligati......
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Ecogen, LLC v. Town of Italy, 06-CV-6196 L.
...actions are "reasonably calculated to alleviate or prevent the crisis condition." See Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 512, 364 N.Y.S.2d 160, 323 N.E.2d 697 (1974). That may indeed be the law of New York, but it is not the test for determining whether one's due pr......
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C.F. v. N.Y.C. Dep't of Health & Mental Hygiene
...the contagion.We cannot say that the Board's resolution exceeded the "limits of necessity" ( Matter of Belle Harbor Realty Corp. v. Kerr, 35 N.Y.2d 507, 511, 364 N.Y.S.2d 160, 323 N.E.2d 697 [internal quotation marks omitted] ). The record before us reflects that the City Health Department,......