Gershowitz v. Planning Bd. of Town of Brookhaven

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore SUOZZI; PER CURIAM
Citation419 N.Y.S.2d 976,69 A.D.2d 460
Decision Date30 July 1979
PartiesIn 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.

Page 976

419 N.Y.S.2d 976
69 A.D.2d 460
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.
Supreme Court, Appellate Division, Second Department.
July 30, 1979.

Page 977

Joseph R. Mulee, Town Atty., Patchogue (David P. Fishbein, Riverhead, of counsel), for appellants.

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.

PER CURIAM.

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

Page 978

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.

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.

FACTS

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:

" 'L' Industrial 1 District (Light Industry)

"s 85-154. Permitted uses.

"In 'L' Industrial 1 District, buildings, structures and premises may be used for any lawful business or industrial use except as otherwise provided in this ordinance and except for the following prohibited uses:

"(39) Junkyard, except when authorized by special permit from the Board of Appeals."

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:

"The site plan for AUTO SHREDDER PLANT has been given a preliminary review by the Planning Board and appears to be in violation of the following sections of the Town of Brookhaven Zoning Ordinance:

(None were listed)

"Special permit for: SHREDDER PLANT".

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:

"Pursuant to the provisions of Article XXVI, Sec. 85-187 of the Building Zone Ordinance of the Town of Brookhaven, notice is hereby given that the Board of Zoning Appeals will hold a public hearing at the Board Room * * * on Wednesday, July 23, 1975 at 7 P.M. to consider the following:

"1. Sam Gershowitz * * * Applicant requests a special permit for construction of auto shredder plant."

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:

"This is a notice of approval, it is NOW necessary for you to make application to

Page 979

the Building Department * * * for issuance of required building permit certificate of occupancy. This grant is valid for 6 months from above date."

On August 1, 1975 petitioner wrote to the zoning board asking:

"Do I have to apply for this Special Permit at certain intervals or is this permit good for the period of time that I operate this facility"?

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:

"Site plan review and approval.

"A. In each case where a building, structure or use for any alteration thereof is proposed in this district, the Building Inspector shall refer the site plan of the proposed building, structure or use or alteration thereof to the engineer for the town for his review. There shall be submitted with the application for site plan approval a copy of any restrictive covenant running in favor of the town, or if there is no such restrictive covenant, the applicant shall furnish an affidavit to that effect. The engineer for the town shall determine that all the requirements of this ordinance and other applicable municipal ordinances, rules, regulations and laws have been complied with. The engineer for the town shall review ingress and egress from and to all public highways to the premises subject to the approval of the appropriate municipal agency having jurisdiction of such highways, all drainage facilities, the traffic pattern within the premises, the location and placement of parking spaces, parking areas, loading areas and spaces, curbs, sidewalks, and access driveways as may be required under this ordinance or by any municipal agency, lights and placement of signs on the premises. The engineer for the town and the Chairman of the Planning Board shall approve, approve with modification or disapprove said site plan. No building permit shall be issued by the Building Inspector without such approval of the site plan and in appropriate cases, authorization by special permit from the Board of Appeals, highway work permits issued by the appropriate municipal agency having jurisdiction over the roads or highways adjacent to the subject premises, permit from the Suffolk County Health Department, and permit from the New York State Department of Labor, if required."

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) (later renumbered as section 85-154(80) by amendment dated April 6, 1976, effective April 26, 1976) 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...

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7 practice notes
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...The Law of Zoning and Planning § 30.04[1], pp. 30-13 to 30-14; see also, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000). In essence, a site plan shows the proposed......
  • Pete Drown Inc. v. Town Bd. of Town of Ellenburg
    • United States
    • New York Supreme Court Appellate Division
    • July 25, 1996
    ...here, there has been no construction or other change to the land itself (see, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 479, 419 N.Y.S.2d 976, revd on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000; Matter of Putnam Armonk v. Town of Southeas......
  • Pittsford Plaza Associates v. Spiegel
    • United States
    • New York Court of Appeals
    • October 17, 1985
    ...reinstate Special Term's judgment. In Matter of Gershowitz v. Planning Bd., 52 N.Y.2d 763, 765, 436 N.Y.S.2d 612, 417 N.E.2d 1000, revg. 69 A.D.2d 460, 474, 419 N.Y.S.2d 976, the only authority cited by the Appellate Division in this case, we held that a Town Planning Board, as a delegate o......
  • Rattner v. Planning Commission of Village of Pleasantville
    • United States
    • New York Supreme Court Appellate Division
    • July 23, 1984
    ...278 N.Y.S.2d 558; Matter of Kalen, 248 App.Div. 777, 289 N.Y.S.2d 58; cf. Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000). Therefore, we affirm the judgment of Spec......
  • Request a trial to view additional results
7 cases
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...The Law of Zoning and Planning § 30.04[1], pp. 30-13 to 30-14; see also, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000). In essence, a site plan shows the proposed......
  • Pete Drown Inc. v. Town Bd. of Town of Ellenburg
    • United States
    • New York Supreme Court Appellate Division
    • July 25, 1996
    ...here, there has been no construction or other change to the land itself (see, Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 479, 419 N.Y.S.2d 976, revd on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000; Matter of Putnam Armonk v. Town of Southeas......
  • Pittsford Plaza Associates v. Spiegel
    • United States
    • New York Court of Appeals
    • October 17, 1985
    ...reinstate Special Term's judgment. In Matter of Gershowitz v. Planning Bd., 52 N.Y.2d 763, 765, 436 N.Y.S.2d 612, 417 N.E.2d 1000, revg. 69 A.D.2d 460, 474, 419 N.Y.S.2d 976, the only authority cited by the Appellate Division in this case, we held that a Town Planning Board, as a delegate o......
  • Rattner v. Planning Commission of Village of Pleasantville
    • United States
    • New York Supreme Court Appellate Division
    • July 23, 1984
    ...278 N.Y.S.2d 558; Matter of Kalen, 248 App.Div. 777, 289 N.Y.S.2d 58; cf. Matter of Gershowitz v. Planning Bd. of Town of Brookhaven, 69 A.D.2d 460, 473-474, 419 N.Y.S.2d 976, revd. on other grounds 52 N.Y.2d 763, 436 N.Y.S.2d 612, 417 N.E.2d 1000). Therefore, we affirm the judgment of Spec......
  • Request a trial to view additional results

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