Durand v. Board of Co-op. Educational Services, Second Supervisory Dist., Westchester County

• Decision Date: 09 June 1972
• Citation: 70 Misc.2d 429,334 N.Y.S.2d 670
• Parties: Leslie DURAND et al., Plaintiffs, v. BOARD of COOPERATIVE EDUCATIONAL SERVICES, SECOND SUPERVISORY DISTRICT, WESTCHESTER COUNTY and New York State Dormitory Authority, Defendants.
• Court: New York Supreme Court

Page 670

334 N.Y.S.2d 670

70 Misc.2d 429

Leslie DURAND et al., Plaintiffs, v. BOARD of COOPERATIVE EDUCATIONAL SERVICES, SECOND

SUPERVISORY DISTRICT, WESTCHESTER COUNTY and New

York State Dormitory Authority, Defendants.

Supreme Court, Westchester County.

June 9, 1972.

Goodhue & Lange, Mount Kisco, for plaintiffs; Kenneth H. Lange, Mount Kisco, of counsel.

William D. Sporborg, Jr., Port Chester, for BOCES.

Louis J. Lefkowitz, Atty. Gen., New York City (Mortimer Sattler, New York City, of counsel).

John G. Moore, Armonk, for Town of North Castle, amicus curiae.

ROBERT J. TRAINOR, Justice.

This is an action by plaintiffs on their own behalf, and on behalf of all other residents and property owners in the towns of North Castle and Harrison similarly situated, for a permanent injunction restraining defendants, Board of Cooperative Educational Services, Second Supervisory District, Westchester County (hereinafter referred to as BOCES) and New York State Dormitory Authority (hereinafter referred to as AUTHORITY) from constructing and operating a bus maintenance facility upon property originally acquired by BOCES, on Old Orchard Street, in the Town of North Castle, Westchester County, New York, and thereafter conveyed by it to AUTHORITY for the purpose of such construction by AUTHORITY and subsequent lease of the completed facility by AUTHORITY to BOCES, pursuant to Education Law, Sections 1958, 1959 and Public Authorities Law, Section 1689.

BOCES is an integral part of the State Public Education System created under and for the purposes set forth in Education Law Section 1958. Its 26 component public school districts are located throughout the southern half of Westchester County. It provides for those districts on a cooperative basis, among other services, special education for handicapped children and occupational education for some 1,200 pupils. To provide legally required transportation for such pupils, BOCES owns, maintains and operates approximately 64 buses of varying sizes and capacities, plus several service vehicles.

In 1967, BOCES rented a garage in White Plains for bus maintenance purposes. Shortly thereafter it was advised that the garage was included in the White Plains Urban Renewal area and that its lease would not be renewed. Since the expiration of its lease in 1969, BOCES has occupied the premises on a month-to-month basis and, at the time of the trial, it had received notice that it must vacate the premises on March 31, 1972.

As a result of the initial advice BOCES, in 1967, began a search for a new site and in September of that year received an offer to sell to it a two-acre site on Orchard Street, in the Town of North Castle, adjoining property already owned by BOCES, known as the Rye Lake Campus. After negotiations with the offerors and also with the Jennie Clarkson Home for Children, the owner of an additional adjoining site of one acre, BOCES entered into contracts to purchase both sites, conditioned upon a commitment from AUTHORITY to finance the acquisition of the sites and the erection of the proposed bus maintenance facility thereon, and authorization by BOCES' qualified voters for such acquisition and construction.

At a duly called, and held, meeting such voters on February 14, 1968, BOCES was authorized, pursuant to Education Law, Sections 1958 and 1959, and Public Authorities Law, Section 1689, by a vote of 5,786 to 1,438 to, among other things, acquire the proposed site, and to enter into an agreement with AUTHORITY for the erection thereon of the bus maintenance facility at an estimated maximum cost of $249,600. BOCES did acquire the site and entered into the authorized agreement with AUTHORITY which, in turn, entered into construction contracts. After all required authorizations and permits were obtained (which are still in effect) construction commenced November 6, 1969. This action for injunctive relief was commenced January 8, 1971.

The court, with the consent of the attorneys for both sides, has personally viewed the site and the adjoining properties.

Plaintiffs claim that the construction and operation of this bus maintenance facility will cause environmental pollution in violation of the New York Constitution, Article XIV, Section 4, and of 'policies' set forth in the Environmental Conservation Law, and will constitute a nuisance. Defendants vigorously dispute this.

Each case of alleged nuisance stands on its own facts. It depends upon the location, character of the neighborhood, nature of the use, extent and frequency of the injury, the effect upon the enjoyment of life, health and property, and the like. (Slattert v. Herbstone Realty Co., 233 N.Y. 420, 135 N.E. 836; McCarty v. National Carbonic Gas Co., 189 N.Y. 40, 81 N.E. 549).

As to the claimed constitutional question, in a companion action brought to enjoin the construction of this same facility upon the ground of an alleged violation of the same provision of the State constitution (Town of Harrison, et ano. v. Board of Cooperative Educational Services, et ano., Westchester County clerk's index number 71--14727), Mr. Justice Fanelli of this court, in an unpublished opinion dated January 13, 1972, granting summary judgment to defendants therein, held that the constitutional provision relied on did not apply to the premises which were the subject of that (as well as this) action. This court concurs in that conclusion.

While plaintiffs refer to the 'policies' of the Environmental Conservation Law, they have not called to the attention of the court, nor has the court ascertained, any specific provision of that law which the construction and operation of this facility will violate. The Commissioner of Environmental Conservation is empowered to 'Provide for prevention and abatement of all water, land and air pollution' Environmental Conservation Law, Section 14, subdivision 9); to 'Prevent pollution through the regulation of the storage, handling and transport of * * * liquids * * * which may cause or contribute to pollution'. (ibid. subd. 13) and the power to summarily abate any condition or activity which, after investigation, he finds 'presents an imminent damger to the health or welfare of the people of the state, or results in or is likely to result in irreversible or irreparable damage to natural resources' (idid., sec. 16).

The court finds it hard to believe, as was testified to by plaintiff's expert, that a spill of one quart of oil would destroy all animal life in the marsh area of Cranberry Lake Park, when one considers, as the same witness asserted, that the oil spilled over several miles of Route 22, as well as from existing Orchard Street, winds up in Kensico Reservoir, a principal source of drinking water for the City of New York, and a place where fish seem to thrive. The same thing would seem to hold true of new Route 684!

After construction of this facility commenced, vigorous protests from private citizens and local public officials were made to various county, state and federal officials, including Governor Rockefeller. At the request of the Governor, the Commissioner of Environmental Conservation investigated the environmental factors involved in the construction of this facility and filed a report of his investigation and findings with the Governor, a copy of which report was received in evidence herein. After such investigation, the Commissioner not only did not seek to abate or alleviate any action of defendants with respect to this facility as likely to result in irreversible or irreparable damage to natural resources, but found that the construction and operation of this facility would have minimal, if any environmental impacts.

Plaintiffs, although not relying upon a violation of the Town of North Castle's zoning ordinance as a ground for an injunction, did urge that the placing of this structure in a residentially zoned district and with a setback less than the zoning ordinance requires, violated the 'spirit' of the zoning ordinance. It is settled law that school districts are not subject to local zoning ordinances and building or permit regulation (Matter of Board of Education of the City of Buffalo v. City of Buffalo, 32 A.D.2d 98, 302 N.Y.S.2d 71; Union Free School District No. 14, Town of Hempstead v. Village of Hewlett Bay Park, 279 App.Div. 618, 107 N.Y.S.2d 858; Town of Poughkeepsie v. Hopper Corp., 46 Misc.2d 761, 260 N.Y.S.2d 901, affd. 26 App.Div.2d 772, 272 N.Y.S.2d 974; Town of Onondaga v. Central School District No. 1, 56 Misc.2d 26, 287 N.Y.S.2d 581), and this rule has been extended to Boards of Cooperative Educational Services (Matter of Board of Cooperative Educational Services, Nassau County v. Gaynor, 60 Misc.2d 316, 303 N.Y.S.2d 183, affd. 33 App.Div.2d 701, 306 N.Y.S.2d 216, mot. for lv. to app. den. 26 N.Y.2d 612, 310 N.Y.S.2d 1025, 258 N.E.2d 729). As bearing upon the equities herein, the proof showed that after the construction of this facility had commenced, another school district had constructed an addition to its bus maintenance facility in a residentially zoned area in the same Town of North Castle without let or hindrance by the Town officials or any of its residents (for whole benefit This action is brought) and that the Town of Harrison, for whose residents This action is also brought, itself constructed, maintains and operates a garage for its highway department trucks and equipment in a residentially zoned area. The property directly across the street from the site involved in this action, acquired by the County of Westchester in May 1968, and now known as Cranberry Lake Park, is located in an area zoned for office buildings under the North Castle zoning ordinance.

Defendants would have exercised better judgment if they had originally located this facility farther back from the road. They have now agreed, however, to relocate it so that it will have a 34-foot setback. While this will not comply with the 50-foot setback called for by...