Gardner v. Leboeuf

• Decision Date: 14 July 1960
• Citation: 24 Misc.2d 511,204 N.Y.S.2d 468
• Parties: Hope N. GARDNER, Plaintiff, v. R. J. LEBOEUF, Jr., as Mayor and F. B. Von Stade, Robert Winthrop, P. L. Iglehart, and J. C. Wilmerding, or their Successors in Office, constituting the Board of Trustees of the Incorporated Village of Old Westbury, Defendants.
• Court: New York Supreme Court

Page 468

204 N.Y.S.2d 468

24 Misc.2d 511

Hope N. GARDNER, Plaintiff, v. R. J. LEBOEUF, Jr., as Mayor and F. B. Von Stade, Robert Winthrop, P. L. Iglehart, and J. C. Wilmerding, or their Successors in Office, constituting the Board of Trustees of the Incorporated Village of Old Westbury, Defendants.

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

July 14, 1960.

Sprague & Stern, Mineola, for plaintiff.

J. Oakey McKnight, Mineola, for defendants (Philip Huntington, Glen Cove, of counsel).

BERNARD S. MEYER, Justice.

This action seeks a judgment declaring that the Zoning Ordinance of the Village of Old Westbury is unconstitutional insofar as it prohibits busines use of plaintiff's property. The complaint, dismissed under Rules of Civil Practice, rule 106 at Special Term (14 Misc.2d 98, 177 N.Y.S.2d 643), was held sufficient by the Appellate Division (8 A.D.2d 736, 187 N.Y.S.2d 92), and the Court of Appeals dismissed an appeal from that determination, (7 N.Y.2d 799, 799, 194 N.Y.S.2d 923). The constitutional issues raised are 1) confiscation, is that the property is not reasonably adapted to the use for which zoned and in that the ordinance destroys the greater part of its value, 2) arbitrariness, in that there is no substantial relationship between the zoning imposed and public health, safety, morals or general welfare, and 3) that the zoning is not in accord with a comprehensive plan. After trial, judgment will be entered for the defendants, dismissing the complaint on the merits, without costs.

On November 26, 1941 plaintiff became the owner of a parcel of approximately 19 acres of land bounded on the south by Jericho Turnpike on the west by Glen Cove Road and on the north and east by Hillside Avenue which runs in a southeasterly are from Glen Cove Road to Jericho Turnpike. In general layout the parcel is roughly triangular, or more accurately, pie-shaped. Since the adoption of the zoning ordinance on May 8, 1926 the parcel has been zoned Residence B. The ordinance establishes five districts: Residence BB, requiring an area of two acres, Residence B, requiring an area of one acre, Residence A, requiring an area of 8,000 square feet, Business A, allowing designated service and retail establishments, and Business C, allowing such establishments plus an additional group of service establishments and limited manufacturing operations as an accessory to a retail sales use. In Residence BB and Residence B districts, permitted uses are 1) detached single family dwelling, 2) office of a professional person residing in such a dwelling, under specified limitations, 3) public school, 4) farm, provided there be no advertising and no products offered at roadside for sale, or sold at retail, and conditionally permitted uses are 1) a non-profit college or non-profit private school on a lot of not less than 50 acres (§§ 401and 10022) a public utility, if the use in the particular location is necessary and convenient for efficient operation of the system or for service by the utility to the neighborhood in which the use is located (§§ 401and 1002and 3) a church, parish house, parochial school, non-profit college or non-profit private school (with specified exceptions) approved by the Board of Regents or Department of Education, non-profit memorial building, non-profit library, non-profit museum or art gallery (§ 1002Residence A uses include all of the above, but allow customary home occupations conducted solely by the occupant, with area and parking limitations.

Jericho Turnpike is the southern boundary of the Village and Northern State Parkway (which in this area runs north and south) its western boundary. To the east of the subject parcel the entire Jericho Turnpike frontage of the village is zoned Residence B to a depth of 300 feet. To the west of and directly across Glen Cove Road from the subject parcel in an area bounded by Jericho Turnpike on the south, Northern State Parkway on the west, Hillside Avenue on the north and Glen Cove Road on the east, the southermost 350 feet is zoned Business C and is occupied by a gasoline station and a Carvel stand and the remainder of the area is zoned Residence A. In January 1957, the Village Planning Board, reporting as required by the ordinance, on an application to rezone the Residence A area to Business A, certified that construction of a restaurant as proposed in the application for rezoning was consistent with the use of surrounding property, but the application was later withdrawn. All of the remainder of the village is zoned Residence BB except the following areas which are zoned Residence B; across Hillside Avenue to the north of the subject parcel to a depth of 300 feet; north of Hillside Avenue a triangular area west of Glen Cove Road and east of Northern State Parkway; north of Hillside Avenue a roughly rectangular area east of Glen Cove Road approximately 400 feet deep and running north about 3,000 feet; north of Old Westbury Road east of Glen Cove Road approximately 600 feet deep and running north about 2,200 feet to the Village line.

Glen Cove Road is to be widened and the County has already taken for this purpose the westernmost 7 feet of plaintiff's Glen Cove Road frontage. Hillside Avenue is to be elevated and Jericho Turnpike to be widened and for this purpose the State has already taken part of the Jericho Turnpike frontage and a triangular area at the eastern end of subject parcel, a total of approximately five acres in area, for widening and drainage. On the south side of Jericho Turnpike in the Village of Westbury, facing 125 feet on Glen Cove Road and 100 feet on Jericho Turnpike, there is a gasoline station, the only portion of a Business A district 150 feet in depth and fronting 418 feet on Jericho Turnpike, that is presently occupied. The balance of the area south of Jericho Turnpike for more than a mile to the east is residential, minimum 7,500 foot plot, except for two non-conforming uses, a nursery and a restaurant, which are close to the intersection of Hillside Avenue and Jericho Turnpike.

With the consent of both parties, the court has viewed the property and its environs. In approximately the center of the Hillside Avenue frontage of the subject parcel is a one acre drainage area owned by the Town. Topographically the parcel presents no problem for residential development. The taking maps and testimony show that there will be controlled access to Jericho Turnpike and Hillside Avenue at the eastern end of subject parcel and from the eastern boundary (after taking) for approximately 250 feet west along both Hillside and Jericho. Hillside Avenue is to be elevated to cross Jericho Turnpike but the evidence does not establish where that crossing will be located or where elevation will begin. Traffic counts for Glen Cove Road at the Jericho Turnpike intersection show 28,166 vehicles on March 22, 1960; for Jericho Turnpike east of Roslyn Road in April and May 1959, an average of 23,000 vehicles, for Hillside Avenue, east of Roslyn Road, during the same period, an average of 11,600.

Plaintiff applied to the Village Board of Trustees in 1957 for rezoning of the subject parcel to Business 'C'. No action has ever been taken on that application. In October 1959 she filed a further application with the Board under Article VII of the Zoning Ordinance for change to Business 'A'. Pursuant to the ordinance that application was referred to the Planning Board, which declined to make the certification necessary for action by the Board of Trustees. It is conceded that plaintiff has made no other application with respect to the property. At the close of plaintiff's case defendant moved to dismiss on the ground that plaintiff had failed to show that she had exhausted her administrative remedies and at the close of the entire case defendant moved to conform the pleadings to the proof by the assertion of an affirmative defense to the same effect. Decision on both motions was reserved; the first is now denied; the second is granted but the affirmative defense is dismissed on the merits.

It is now well established that a complaint seeking a declaratory judgment that an ordinance is unconstitutional because confiscatory is sufficient though it does not allege that application for a variance or special exception has been made, and denied. Gardner v. Leboeuf, 8 A.D.2d 736, 187 N.Y.S.2d 92; Levitt v. Incorporated Village of Sands Point, 6 A.D.2d 701, 174 N.Y.S.2d 283, affirmed 6 N.Y.2d 269, 189 N.Y.S.2d 212; Hammond v. Town of Caldwell, 282 App.Div. 798, 122 N.Y.S.2d 480. Whether that rule of pleading necessarily implies that the availability of other relief to plaintiff is always a matter of affirmative defense, or whether as a matter of constitutional law plaintiff must as part of her prima facie case 'show that the ordinance did not authorize a variance of the general restrictions which would permit the use of her property for a purpose to which it is reasonably adapted', Town of Cortlandt v. McNally, 282 App.Div. 1072, 126 N.Y.S.2d 702, 704, leave to appeal denied 283 App.Div. 800, 128 N.Y.S.2d 597, it is not necessary now to decide. Plaintiff's evidence showed that the parcel in question was 19 acres before taking and over 14 acres after taking by the state. While plaintiff's case is largely predicated on the unique situation of the parcel because surrounded by three major highways, it is clear that notwithstanding the uniqueness of the property, application need not be made for a variance if such application would be futile, O'Brien Transfer & Storage Co., Inc. v. Village of Great Neck, 2 A.D.2d 690, 152 N.Y.S.2d 588. Since a Board of Appeals 'has no power to remake the zoning map under the guise of granting a variance', Levitt v. Incorporated Village of Sands Point, 6 N.Y.2d 269, 273, 189 N.Y.S.2d 212, 214; the size of the instant parcel would appear to make a variance application futile. Nor is any special exception available to plaintiff; that...