Daly v. Eagan
| Decision Date | 28 March 1972 |
| Citation | 77 Misc.2d 279,353 N.Y.S.2d 845 |
| Parties | Donald F. DALY et al., Petitioners, v. Edwin EAGAN et al., Respondents. |
| Court | New York Supreme Court |
Milgraum & Willen, Huntington, for petitioners.
Ingerman, Smith & Greenberg, Northport, for respondents.
Petition for judgment pursuant to Section 179--q of the Village Law is granted setting aside and voiding the determination of the Planning Board of the Village of Northport in approving the subdivision entitled 'Fairwind at Northport'.
Application was made to the Planning Board for the proposed subdivision on or about September 29, 1971. The premises are now and were on September 29, 1971, being used for a hotel as a non-conforming use in an E Residential Zone located on Northport Harbor. The area involved is 4.558 acres, of which 1.203 acres are harbor bottom land. On December 8, 1971, the Board unanimously approved the application which provides for cluster zoning, the elimination of side yard requirements, attached dwellings and provides for 22 plots.
This is an Article 78 Proceeding brought by eighteen petitioners who are residents and property owners in the vicinity of the proposed development. They attack the Planning Board's approval on the grounds that the Board's action is illegal, ultra vires, unreasonable, capricious, arbitrary, and in excess of its authority.
The respondents contend that the Board is authorized to modify the zoning requirements to allow construction of this subdivision under Section 179--p of the Village Law and Section 52--9 of the Code of the Village of Northport, and that the petitioners have no 'standing' as aggrieved persons so as to enable them to maintain this proceeding.
The State Legislature in an effort to enable municipalities to avoid the banal and stereotyped clones resulting from the Procrustean application of traditional zoning ordinances authorized the local legislature to empower the local Planning Boards to vary certain statutory standards of the zoning ordinances by Section 179--p of the Village Law and Section 281 of the Town Law.
This goal occasioned some legal difficulties. If the Planning Board were given unlimited discretion to vary the statutory requirements, it would be a usurpation of the functions of the Board of Appeals and of the Village Board. If the applications were to be processed by the Boards of Appeals, the Boards would be acting as Planning Boards, a function for which they were not designed. Van Deusen v. Jackson 35 A.D.2d 58, 312 N.Y.S.2d 853, aff'd 28 N.Y.2d 608, 319 N.Y.S.2d 855, 268 N.E.2d 650.
In addition, since the variances sought for a subdivision were not within the normal categories of use or hardship appeals, the delegation of powers to the Planning Boards had to be carefully delimited to avoid an illegal assignment of power. Hiscox v. Levine, 31 Misc.2d 151, 216 N.Y.S.2d 801.
The Statute (Village Law, Section 179--p) authorizing the approval of cluster zoning for village reads in pertinent part:
'* * * (b) This procedure shall be applicable only to lands zoned for residential purposes * * *' (Emphasis supplied).
Two sentences are critical. The first is 'Such authorization shall specify the lands to which this procedure may be applicable'. The second is 'This procedure shall be applicable only to lands zoned for residential purposes * * *'.
To give the first sentence meaning in the face of the general limitation in the second, one must conclude that a specific resolution of the trustees is contemplated for each subdivision presumably giving directions and limitations to the Planning Board for that specific project. It will not suffice to say that the second sentence automatically fulfills this requirement, for then the first sentence is entirely unnecessary.
The Court holds that the second sentence is a limitation on the zoning classification of land properly to be considered by the Planning Board, and that the first sentence requires a direction to the Board as to which part of this classification may be considered by it. Thus, the resolution discussed in Orrell v. Planning Board, Town of Pound Ridge, 66 Misc.2d 843, 322 N.Y.S.2d 444, explicitly describes the lands to be processed and very carefully limits the powers of the Board adding to the limitations already contained in the enabling statute (Town Law, § 281).
Johnson v. Moore, 13 A.D.2d 984, 985, 216 N.Y.S.2d 740, 743.
The only purported resolution of the trustees empowering the Planning Board to process applications is Section 52--9 of the Northport Village Code. The respondents must of necessity argue that this is sufficient to activate the powers of Section 179--p of the Village Law.
The Court finds no controlling difference between a resolution and an ordinance other than that the ordinance is a more formal...
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