C. DeMasco Scrap Iron & Metal Corp. v. Zirk

• Citation: 62 A.D.2d 92,405 N.Y.S.2d 260
• Court: New York Supreme Court Appellate Division
• Decision Date: 24 April 1978
• Parties: In the Matter of C. DeMASCO SCRAP IRON & METAL CORP., Respondent, v. Herbert ZIRK, Chief Building Inspector of the Town of Babylon, et al., Appellants.

Page 260

405 N.Y.S.2d 260

62 A.D.2d 92

In the Matter of C. DeMASCO SCRAP IRON & METAL CORP., Respondent, v. Herbert ZIRK, Chief Building Inspector of the Town of

Babylon, et al., Appellants.

Supreme Court, Appellate Division,Second Department.

April 24, 1978.

Joseph F. Klein, Town Atty., Lindenhurst (Wallace H. Boyle, Lindenhurst, of counsel), for appellants.

Blumberg, FitzGibbons & Blumberg, Amityville (Edgar Hills, Riverhead, of counsel), for respondent.

Before MOLLEN, P. J., and SUOZZI, SHAPIRO and HAWKINS, JJ.

HAWKINS, Justice.

The respondents in this proceeding appeal from a judgment of the Supreme Court, Suffolk County, dated September 16, 1977, which directed the Chief Building Inspector of the Town of Babylon to issue a building permit to the petitioner and, also, enjoined the Babylon Planning Board and Town Board from taking any action which would interfere with the issuance of the building permit to the petitioner.

The judgment should be affirmed, without costs or disbursements.

Petitioner has been operating a scrap metal and vehicle junkyard business at its present location for some five years. The subject property is zoned as "Industrial H" "Heavy Industry District." In 1976 petitioner applied for a permit to construct a foundation and building so that it could install and operate an automobile shredder. That is a huge machine requiring a massive foundation which reduces junked automobiles to small pieces of scrap metal. By letter dated August 26, 1976 the Building Inspector informed petitioner that the use sought was not within the specific uses enumerated in the Town of Babylon's zoning ordinance. Actually, section 15-264 of the ordinance schedules some 27 industrial manufacturing processes requiring special use permits. The use of an automobile shredder concededly is not expressly listed.

Following the denial of its application for a building permit, rather than instituting an article 78 proceeding, petitioner applied to the Zoning Board of Appeals for a special use permit so that it could proceed to erect this special apparatus.

The chronology of events which subsequently transpired is germane. A public hearing was held after the requisite notice and publication. In its application for the permit, petitioner stated that the approximate value of the contemplated improvement was $5,000. In actuality, the expenditure would be some $300,000. At the hearing there was testimony concerning the operation of an automobile shredder, petitioner's need for such machinery and the effect it would have upon the character of the neighborhood. Testimony was further offered as to the following:

1. That the area involved herein was designated as a heavy industrial district in accordance with the zoning map of the Town of Babylon.

2. That the petitioner had been in the motor vehicle junk business for 25 years across the street from the premises and five years at its present location.

3. That the property upon which the petitioner is conducting its business is more than two acres in size and is surrounded by other heavy and light industry.

4. In affidavits of duly qualified engineers and an architect, it was stated that the noise level generated by the shredder would not appreciably increase the noise level presently generated at this site.

5. That the introduction and use of the automobile shredder at the petitioner's plant would create additional employment for residents of the town.

The layout of the proposed foundation and the site plans, as prepared by a licensed architect, were offered as exhibits.

Significantly, the Town Board offered no opposition at the public hearing to granting the special permit. On October 28, 1976 the Board of Appeals granted the application, but provided that its approval would be null and void unless the use was commenced within 180 days of granting the certificate of approval. No judicial review of that decision was sought.

Thereafter, petitioner applied to the Building Inspector for a permit. The Building Inspector submitted the plans to the Planning Board. On January 12, 1977 the Planning Board noted that the site plans were inadequate for review since they were at variance with those submitted to the Board of Appeals. On January 28, 1977 the petitioner was advised by the Planning Board of the need for revised site plans and that further information was required as to parking, highway grading and the use of undeveloped areas. The board also advised that it had to satisfy the Suffolk County Department of Environmental Control. On January 31, 1977 petitioner received a letter from the latter agency in which it advised petitioner to hire an engineer to consult with its engineers.

On April 8, 1977 petitioner received an extension from a unanimous Zoning Board of Appeals for an additional 180-day period which would expire on October 4, 1977. On April 15, 1977 the Department of Environmental Control advised the Building Inspector that it had reviewed the plans and specifications of the petitioner and that it was "satisfied with air and water pollution control for this project and recommends that the Town look further into the noise and vibration aspects."

The revised plans were submitted on May 16, 1977. The Planning Board, on May 17, 1977, requested the petitioner to furnish engineering studies and reports of the noise and vibration which the facility might cause. These were furnished to the Planning Board about eight days later. They established that operation of the shredder would cause no appreciable vibration. The Planning Board, nevertheless, determined that these reports were inconclusive and requested that the Town Board retain an engineer to conduct its own studies. On June 23, 1977 the Planning Board informed petitioner's attorney that it was awaiting a decision from the Town Board.

On July 7, 1977 the petitioner's attorney obtained a memorandum from the Town Attorney to the Planning Board in which the Town Attorney advised that he had "no knowledge of any reason why a Building Permit could not be issued at this point." However, on July 15, 1977 the Town Supervisor instructed the Town Attorney to prepare a resolution to the effect that the shredder represented a serious hazard to the health, welfare and safety of the area residents and, consequently, was "an impermissible use of the property." On July 19, 1977 the Planning Board advised petitioner's attorney that it had adopted a resolution incorporating verbatim the supervisor's language. This proceeding was then commenced.

The Town Board also instituted an article 78 proceeding. It challenged the Board of Appeals' grant of the special use permit and the subsequent renewal thereof.

During the pendency of the article 78 proceedings, the Town Board held a public hearing, upon notice, and adopted a resolution changing the zoning of petitioner's property so that automobile shredding would be an impermissible use. Petitioner has instituted a declaratory judgment action challenging the validity of the rezoning.

Special Term, on September 8, 1977, dismissed the Town Board's article 78 proceeding, holding that the permit to build the automobile shredder was available to petitioner as a matter of right under the Babylon zoning ordinance; hence, there was no need for petitioner to have sought a special use permit.

The pertinent provision of the Babylon ordinance, section 15-264, reads:

"ARTICLE XVI. DISTRICT REGULATIONS: 'H' HEAVY INDUSTRIAL DISTRICT.

"Sec. 15-264. Uses permitted, restricted.

"In 'H' Industrial District, buildings and premises may be used for any purpose whatsoever not in conflict with any ordinance of the town; provided, however, that no building or occupancy permit shall be issued for any of the following uses until and unless the location of buildings and all other appurtenances of the use shall have been approved by the planning board, board of appeals and also approved by the town board, as hereinafter provided".

The section then enumerates 27 types of industrial uses for which approval is required. Immediately following the list, the section concludes:

"No use shall be permitted which is found by the town board to be detrimental to the health, welfare and safety of the residents of the town. (Zon.Ord.Rev.1962, Art. 10, § H-1; Ord. of 3-17-64; Ord. of 12-23-66; Ord. of 5-23-67; Ord. of 10-12-71)."

Concededly, automobile shredding is not included among the 27 uses; nor is there any other provision of the ordinance which prohibits an automobile shredding plant in this district.

The area involved, as aforesaid, is zoned for heavy industrial use. The businesses surrounding petitioner's premises run the gamut from automobile parts yards, cement plants, iron work plants and junk yards to a Long Island Lighting Company plant which operates jet engines and is located almost directly beyond petitioner's property.

Special Term, in the proceeding commenced by the Town Board, found that petitioner need not have applied for any permit. We agree. Appellants' plaint is that the broad, inclusive, concluding language of the section should be construed to include the use of a shredder. It may well be that this massive machinery will not enhance the zoning district and could readily be deemed to run contrary to the ordinance's basic conception. The omission, however, cannot be supplied by the courts. This very contention was rejected by the Court of Appeals in Matter of Westchester County S.P.C.A. v. Mengel, 292 N.Y. 121, 126, 54 N.E.2d 329, 331, when it held:

"The restrictions on the use of property imposed by the Zoning Ordinance may not be extended by any administrative board or judicial tribunal in order to exclude a use which in its opinion should have been excluded in order to effectuate the purposes set forth in the preamble, nor may we give a strained meaning to the words of the ordinance in order to effectuate its purpose better. Nonetheless, we read this ordinance, as we read all stat...