Gershowitz v. Planning Bd. of Town of Brookhaven
| Citation | 419 N.Y.S.2d 976,69 A.D.2d 460 |
| Parties | In the Matter of Sam GERSHOWITZ, Respondent, v. The PLANNING BOARD OF the TOWN OF BROOKHAVEN et al., Appellants. Sam GERSHOWITZ, Respondent, v. The TOWN OF BROOKHAVEN et al., Appellants. |
| Decision Date | 30 July 1979 |
| Court | New York Supreme Court Appellate Division |
Christopher Steele, Archibald & Bloom, Mount Sinai (Oscar J. Bloom, Mount Sinai, of counsel), for respondent.
Before SUOZZI, J. P., and O'CONNOR, MARTUSCELLO and MANGANO, JJ.
The prime issue to be decided on this appeal is whether the operation of an automobile shredder on petitioner's premises was a permitted use as of right without the need for a special permit in an L-1 industrial (Light Industry) zone under section 85-154 of the Brookhaven Town Code. Special Term held that the proposed use and the ordinance involved in this proceeding were "virtually indistinguishable" from those involved in the recent cases of Matter of DeMasco Scrap Iron & Metal Corp. v. Zirk, 62 A.D.2d 92, 405 N.Y.S.2d 260, affd. 46 N.Y.2d 864, 405 N.Y.S.2d 260, and Matter of Allmendinger v. Ziegner, 62 A.D.2d 1053, 405 N.Y.S.2d 269, affd. 46 N.Y.2d 864, 405 N.Y.S.2d 269 wherein this court held that an automobile shredder was a permitted use as of right under the Babylon zoning ordinance.
Although the proposed use in the case at bar and the use in DeMasco are identical, it is our view, contrary to that advanced by Special Term, that the two zoning ordinances are significantly different. In DeMasco the particular section of the Babylon zoning ordinance permitted all uses as a matter of right with the exception of 27 specifically enumerated conditional uses. Accordingly, this court and the Court of Appeals held that the following concluding provision of the appropriate section of the Babylon zoning ordinance was applicable only to the 27 conditional uses:
"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."
In the case at bar the applicable section of the Brookhaven zoning ordinance permits all uses as a matter of right and specifically prohibits per se 78 enumerated uses. 1 Therefore, the following concluding provision of this section of the Brookhaven zoning ordinance, although somewhat similar in language to the concluding provision in DeMasco, can only be applicable to all uses which are not specifically prohibited per se:
"Any other trade, business, industry, use or industrial process that may be injurious, hazardous, noxious or offensive to the surrounding area by reason of the emission of odor, dust, light, smoke, soot, gas, fumes, vibration, noise or similar substances or conditions."
Accordingly, it cannot be held that an automobile shredder is permitted as of right under section 85-154 of the Brookhaven Town Code. Rather, it is our view, for the reasons hereinafter set forth, that this matter If that question is answered in the affirmative, the use will be absolutely prohibited; if answered in the negative, then and only then it will be permitted without any conditions or need for a special permit, and a second question will have to be determined in the declaratory judgment action, i. e., whether plaintiff acquired vested rights to operate the automobile shredder before the amendment to the Brookhaven Town Code became effective which prohibited that use in an L-1 industrial (Light Industry) zone.
must be remanded to the Brookhaven zoning board of appeals for an in-depth hearing to determine if the proposed use will be "injurious, hazardous, noxious or offensive to the surrounding area by reason of the emission of odor, dust, light, smoke, soot, gas, fumes, vibration, noise or similar substances or conditions" pursuant to section 85-154(80) of the Brookhaven Town Code.
In June, 1975 petitioner submitted an application to the Brookhaven building department for a "Shredder Plan for Autos" on a 13.3-acre tract zoned L-1 industrial (Light Industry). The application was disapproved "Per 85-154(39)" of the Town Code. That section provides:
A junkyard is defined in section 85-1 of the zoning ordinance:
"JUNK YARD The use of more than three hundred (300) square feet of the area of any lot, whether inside or outside a building, or the use of any portion of that half of any lot that joins any street, for the collecting, storage or sale of wastepaper, rags, scrap metal or discarded material, or for the collecting, dismantling, storage or salvaging of machinery or vehicles not in running condition or for the sale of parts thereof."
On June 11, 1975 petitioner submitted his site plan to the planning board for review. At that time, a preliminary review was made by a planning board employee and a memo was sent to the building department with no violations listed. This preliminary approval reads as follows:
In accordance with the building department's implied recommendation that he proceed through the mechanism of a special permit, petitioner applied to the Brookhaven zoning board of appeals for same.
The notice of public hearing on this issue stated:
On July 23, 1975, after conducting a hearing at which no opposition to the proposed special permit was adduced, the zoning board of appeals granted the application "as presented." The approval notice also contained the following notation:
On August 6, 1975 the chairman of the zoning board answered as follows:
"In reply to the above question, be advised the special permit granted to you on July 23, 1975 is a permanent grant, however, must (Sic ) be commenced six months from the date of grant."
On September 18, 1975 petitioner submitted his site plan for final approval to the Town Engineer and the Chairman of the planning board pursuant to section 85-160A of the Brookhaven Town Code. That section provides, in pertinent part:
On October 20, 1975 the planning board held a hearing on the said site plan and held the matter in abeyance until another hearing was held on January 5, 1976. On January 5, 1976 the full planning board, by resolution, denied approval to petitioner's site plan on the grounds, Inter alia, that the proposed automobile shredder violated then section 85-154(79) () and section 85-227 of the Brookhaven Town Code which prohibit any use which is "injurious, hazardous, noxious or offensive to the surrounding area by reason of the emission of odor, dust, light, smoke, soot, gas, fumes, vibration, noise or similar substances or conditions". Pursuant to the action of the...
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