Bernstein v. Board of Appeals, Village of Matinecock

• Decision Date: 30 June 1969
• Citation: 302 N.Y.S.2d 141,60 Misc.2d 470
• Parties: Robert BERNSTEIN and Beverly Bernstein doing business under the firm name and style of Piping Rock Country Day School, Petitioners, v. BOARD OF APPEALS, VILLAGE OF MATINECOCK, Respondent.
• Court: New York Supreme Court

Page 141

302 N.Y.S.2d 141

60 Misc.2d 470

Robert BERNSTEIN and Beverly Bernstein doing business under the firm name and style of Piping Rock Country Day School, Petitioners, v. BOARD OF APPEALS, VILLAGE OF MATINECOCK, Respondent.

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

June 30, 1969.

[60 Misc.2d 472] Emanuel M. Cohn, New York City, for petitioners.

Sprague, Dwyer, Aspland & Tobin, Mineola, for respondent.

MEMORANDUM

BERNARD S. MEYER, Justice.

By this motion petitioners seek to punish respondent Board of Appeals for contempt for failure to comply with the judgment of September 6, 1968, which annulled respondent's determination denying petitioners a permit to use their premises as a private nursery school and directed respondent 'to issue a permit to petitioners permitting them to operate a private nursery school subject to appropriate conditions concerning approval of the facilities by the New York State Department of Education'. An appeal from the judgment was dismissed, 31 A.D.2d 650, 297 N.Y.S.2d 702, and leave to appeal to the Court of Appeals having been denied, (23 N.Y.2d 646), respondent on February 24, 1969, adopted a resolution directing the Building Inspector to issue a special use permit, subject to a number of conditions and requirements and limited to a term of two years. Petitioners argue that respondent can impose only the conditions referred to in the September 6, 1968 judgment. While the Court does not agree with that contention, it does find that respondent's resolution exceeds its power. The motion to punish is denied without costs, but under the prayer for other and further relief certain of the conditions are declared invalid and the matter is remanded to the Board for further proceedings not inconsistent herewith.

Determination of the issues presented by this motion turns on (1) the extent of the authority of the Board of Appeals to impose conditions upon a special exception permit, and (2) the effect of the prior proceedings and judgment upon the Board's authority. On the first question the Court notes that under Village Law § 175(1) the Village Board of Trustees is authorized by ordinance to adopt zoning regulations which 'may provide that a board of appeals may determine and vary their application in harmony with the general purpose and intent, and in accordance with general or specific rules therein contained,' that Village Law § 179--b empowers a Board of Appeals to 'hear and decide all matters referred to it upon which it is required to pass under any such ordinance', and that under Section 435 of the Building Zone Ordinance of the Village of Matinecock the decision and order of the Board of Appeals in passing upon an application such as petitioners' 'shall include appropriate and reasonable conditions and safeguards which the Board of Appeals itself deems necessary to impose in any case to assure continual conformance to all applicable requirements'. Though the Board may have inherent power even in the absence of a specific ordinance provision to impose reasonable conditions (compare Matter of Long Island Lighting Co. v. Horn, 49 Misc.2d 717, 725, 268 N.Y.S.2d 366, 374, affd. 24 A.D.2d 840, 263 N.Y.S.2d 696, affd. 17 N.Y.2d 652, 269 N.Y.S.2d 432, 216 N.E.2d 595; Matter of Pearson v. Shoemaker, 25 Misc.2d 591, 202 N.Y.S.2d 779; Matter of Hopkins v. Board of Appeals, 179 Misc. 325, 39 N.Y.S.2d 167; 2 Rathkopf, The Law of Zoning and Planning, 49--1; 1 Anderson, Zoning Law and Practice in New York State, § 18.43, with Matter of Oakwood Is. Yacht Club v. Board of Appeals, 32 Misc.2d 677, 223 N.Y.S.2d 907), there can be no question about its right to do so in light of the above quoted provisions, Matter of Ambrosio v. Zoning Board of Appeals, 196 Misc. 1005, 96 N.Y.S.2d 380.

The right is not, however, unlimited. The conditions imposed cannot go beyond the ordinance, which is the source of the Board's power, Matter of Community Synagogue v. Bates, 1 N.Y.2d 445, 452, 455, 154 N.Y.S.2d 15, 20--23, 136 N.E.2d 488, 492--494; Matter of Schlosser v. Michaelis,18 A.D.2d 940, 238 N.Y.S.2d 433; Matter of Vit-Al Building Corp. v. Eccleston, 7 A.D.2d 737, 180 N.Y.S.2d 652; see People ex rel. Beinert v. Miller, 188 App.Div. 113, 176 N.Y.S. 398. They must be directly related to and incidental to the proposed use of the property, Matter of Conmar Bldrs. v. Board of Appeals, 43 Misc.2d 577, 251 N.Y.S.2d 521; Matter of Oakwood Is. Yacht Club v. Board of Appeals, 32 Misc.2d 677, 223 N.Y.S.2d 907; Matter of Pearson v. Shoemaker, 25 Misc.2d 591, 202 N.Y.S.2d 779, and the conditions stated must be sufficiently clear and definite that the permittee and his neighbors are not left in doubt concerning the extent of the use permitted, Matter of Conmar Bldrs. v. Board of Appeals, Supra; Matter of Pearson v. Shoemaker, Supra. Moreover, the factual basis for the Board's determination to impose a condition must be stated, so that the Court will have an intelligent basis for review, Matter of Pearson v. Shoemaker, Supra.

When conditions are imposed by a Board of Appeals after remand following a reversal of its earlier determination, the Board's authority may be limited by its own prior preceedings or by the remand judgment. Its own prior proceedings may limit its authority because Res judicata is applicable to administrative determinations unless the nature of the power being exercised or the peculiar necessities of the particular case dictate otherwise, Matter of Evans v. Monaghan, 306 N.Y. 312, 324, 118 N.E.2d 452, 458; Matter of Slattery v. Bd. of Est. & Appor., 271 N.Y. 346, 351, 3 N.E.2d 505, 506, and the rule against splitting causes of action will be invoked to proscribe piecemeal administrative determinations except under the same special circumstances. If the Board's earlier determination was based on less than all the grounds available to it, it could not have urged other reasons before the Court in support of that determination in the prior Article 78 proceeding, Matter of Aiosa, N.Y.L.J. 3/31/66, p. 18, col. 5 (Pittoni, J.), nor could the Court in its review have gone beyond the grounds invoked by the Board, Matter of Barry v. O'Connell, 303 N.Y. 46, 50, 100 N.E.2d 127, 129; Matter of Rubel Corp. v. Murdock, 255 App.Div. 224, 7 N.Y.S.2d 358, affd. 280 N.Y. 839, 21 N.E.2d 886; Matter of Blum v. D'Angelo, 15 A.D.2d 909, 225 N.Y.S.2d 894, for 'enumeration of the reasons is tantamount to definition, explanation and restriction', Matter of Steiert v. Epstein, 15 A.D.2d 532, 222 N.Y.S.2d 824. If it has thus waived grounds that it could have but did not urge in the earlier determination, it cannot after remand base conditions upon those grounds unless the remand judgment permits it to do so.

The rule concerning remand judgments is that 'Although an administrative agency is generally free, in a proper case, to exercise its full discretion anew when proceedings are remanded to it, it may not do so to the extent that an order explicitly limits such discretion', Matter of Quittner v. Herman, 15 A.D.2d 68, 70, 222 N.Y.S.2d 278, 281, affd. 11 N.Y.2d 800, 227 N.Y.S.2d 249, 181 N.E.2d 850; see Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656; 1 N.Y.Jur. 666, Administrative Law § 209; Davis, Administrative Law Treatise 624, § 18.11, for an agency is bound to honor the judicial decision made on review of its determination, Matter of Anderson v. Johnson Lighterage Co., 241 N.Y. 523, 150 N.E. 538; Matter of Jones v. Schenectady Boys Club, Inc., 276 App.Div. 879, 93 N.Y.S.2d 764. That rule is, however, subject to the limitation that a Court may not in passing upon an agency order exercise the discretion which the statute has vested in the agency, Matter of Nash v. Brooks, 276 N.Y. 75, 81, 11 N.E.2d 545, 547, unless the agency has been given the opportunity to exercise its discretion and failed to do so, Matter of Levin v. Thornbury, 2 A.D.2d 774, 154 N.Y.S.2d 584. An order limiting the exercise of the agency's discretion on remand may, therefore, be beyond the power of the Court to make, see Matter of N.Y. State Elec. Corp. v. P.S. Comm., 260 N.Y. 32, 182 N.E. 237; Matter of Grade Crossings, 255 N.Y. 320, 174 N.E. 695; Matter of North Amer. Holding Corp. v. Murdock, 6 A.D.2d 596, 180 N.Y.S.2d 436, affd. 6 N.Y.2d 902, 190 N.Y.S.2d 708, 160 N.E.2d 926, as when a rate making order is reversed because based upon insufficient evidence, Matter of Yonkers Railroad Co. v. Maltbie, 251 App.Div. 204, 296 N.Y.S. 411, or when under the governing statute or ordinance additional steps involving the exercise of discretion are required of the agency after the decision which was annulled.

Courts may and often do authorize full reconsideration on remand, see, e.g., Matter of Gilbert v. Stevens, 284 App.Div. 1016, 135 N.Y.S.2d 357, or by imposing no limitation upon the agency's discretion leave it free on reconsideration to exercise full discretion anew, Matter of Quittner v. Herman, 15 A.D.2d 68, 70, 222 N.Y.S.2d 278, 281, affd. 11 N.Y.2d 800, 227 N.Y.S.2d 249, 181 N.E.2d 850. Clearly, the instant judgment is not of the former type. It would have been a judgment of the latter type had it stopped with the words 'subject to appropriate conditions'. Do the modifying words 'concerning approval of facilities by the New York State Department of Education' leave the respondent Board without authority to impose any other conditions? The Court concludes not, because, the Board's prior determination having been to deny the permit, it has never had the opportunity to exercise its discretion under the ordinance. The judgment of September 6, 1968 can be construed as limiting reconsideration only by application of the rule of construction that the express mention of one thing implies the exclusion of others. The one thing mentioned in the judgment had been argued before the Court; most of the others were not touched upon in the prior review proceeding. More importantly,...