Ginsberg v. Yeshiva Of Far Rockaway

• Decision Date: 08 July 1974
• Citation: 45 A.D.2d 334,358 N.Y.S.2d 477
• Court: New York Supreme Court — Appellate Division
• Parties: Stanley A. GINSBERG et al., Respondents, v. YESHIVA OF FAR ROCKAWAY, Appellant.

Page 477

358 N.Y.S.2d 477

45 A.D.2d 334

Stanley A. GINSBERG et al., Respondents, v. YESHIVA OF FAR ROCKAWAY, Appellant.

Supreme Court, Appellate Division, Second Department.

July 8, 1974.

Gladstone, Lowell, Karassik & Mondschein, New York City (Stanley H. Lowell, New York City, and Frank A. Romano, New York City, of counsel), for appellant.

Tenzer, Greenblatt, Fallon & Kaplan, New York City (Edward L. Sadowsky, New York City, of counsel), for respondents.

Before GULOTTA, P.J., and LATHAM, COHALAN, BENJAMIN and MUNDER, JJ.

LATHAM, Justice.

In this action to enjoin the operation of a religious school on property subject to a private residential use covenant, the issue is whether there is a violation of the constitutional guarantees of religious freedom by the enforcement of the covenant against the defendant, which purchased with knowledge of the covenant and of the plaintiffs' intention to enforce it.

In 1908, a covenant was attached to six lots, three on the north side and three on the south side of a short dead-end street (now named Virginia Street) off Empire Avenue, which is a well-traveled two-lane street in Far Rockaway, Queens. The defendant's property is situated at the dead end, where all traffic, including emergency vehicles, turns around. The covenant provides in pertinent part that none of the six lots 'shall be used except for one private residence' and that no 'apartment buildings, boarding houses, stores, business houses, barns or stables' shall be 'erected or maintained'. Of the six restricted lots, the four corner ones are improved with single-family residences while the two middle lots are vacant. The surrounding area contains one-family homes in all directions, with the exception of a few two-family homes and a four-story apartment, all of which have been there for many years.

Plaintiffs Dr. Stanley A. and Mrs. Susan K. Ginsberg own and reside in a single-family home on the Restricted southeast corner lot. Dr. Ginsberg uses part of the house as a medical office 12 hours a week. His father, who was also a physician, lived and practiced in the house from 1932 on. Dr. Ginsberg started his practice in 1964, paying rent for the office first to his father and then, after his father's death, to his mother. In 1969, his mother transferred the house to the plaintiffs.

In or about 1963, an orthodox synagogue purchased the adjacent Unrestricted property south of the plaintiffs', demolished two private dwellings, and erected its temple. At the same time, the synagogue bought the adjacent vacant Restricted lot west of the plaintiffs', paved and lighted it, and used it as a parking lot without objection from the plaintiffs or their predecessors apart from minor complaints as to fencing and lighting which were modified pursuant to the plaintiffs' request. Synagogue traffic enters the parking lot through Virginia Street and exits directly onto Empire Avenue by the driveway on the Unrestricted portion of the synagogue's premises, thus not clogging Virginia Street or substantially disturbing the one-family residential atmosphere. The Trial Justice believed Dr. Ginsberg's statement that the use of the lot for parking was not offensive to him.

In August, 1971, concededly with knowledge of the covenant and of the plaintiffs intention to enforce it, the defendant, Yeshiva of Far Rockaway, apparently not affiliated with the synagogue, purchased the Restricted northwest corner lot at the dead end of the block diagonally across from the plaintiffs. On the eve of purchase, the plaintiffs' attorneys advised the defendant of the plaintiffs' intention to enforce the covenant. In September, 1971, the defendant began to operate an all-day religious school in the former private dwelling for grades 9 through 12. The original nine rooms, unchanged, now serve as four classrooms, an office, a prayer room where the boys pray in the morning and the evening, and a kitchen, with two of the rooms used as a dormitory for three out-of-town boys. The hours are 9 to 6 P.M. Monday through Friday, with additional hours on Sunday mornings and meetings on Thursday evenings. There are 47 students ages 14 to 18 and some eight teachers. Dr. Ginsberg has been disturbed by the students playing roller skate hockey on the parking lot and in the street in the late afternoon and early evening and by the frequent failure of the school to remove some 8 to 10 garbage cans from the street for several days after collection.

The plaintiffs commenced this action to enforce the covenant on or about February 1, 1972. In or about March, 1972, the defendant purchased the adjoining vacant Restricted lot. It plans to further expand the school. Though the record is barren with respect to a connection between the synagogue and the school, it is apparent that a synagogue and a yeshiva are both identified with the Jewish faith.

The trial court found that despite the synagogue's use of one lot as a parking lot and some deterioration in the residential character of the area, the area retains a residential character of substantial value. This value will be adversely affected by the presence of groups of students of high school age and by the use and servicing of the school property by persons other than private residents. In reliance on Evangelical Lutheran Church v. Sahlem, 254 N.Y. 161, 172 N.E. 455, the trial court enjoined the operation of the school.

On appeal, the defendant seeks to distinguish Sahlem on the ground that in that case the covenanted area was exactly the same as when the restriction was placed on the land, while at bar, as contended by the defendant, there has been substantial change. The defendant Inter alia argues that, in balancing the equities, religious corporations should be distinguished from commercial enterprises (cf. Matter of Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 493, 293 N.Y.S.2d 297, 301, 239 N.E.2d 891, 894).

It has long been the rule in this and other jurisdictions that residential use covenants are enforceable against religious institutions such as churches and synagogues (Evangelical Lutheran Church v. Sahlem, 254 N.Y. 161, 172 N.E. 455, Supra; Anno. 13 A.L.R.2d 1239; A.L.R.2d Later Case Service; 12 Syracuse L.Rev. 347). Chief Judge Cardozo, speaking for the Court of Appeals, said (p. 168, 172 N.E. p. 457): 'Neither at law nor in equity is it written that a license has been granted to religious corporations, by reason of the high purpose of their being, to set covenants at naught. Indeed, if in such matters there can be degrees of obligation, one would suppose that a more sensitive adherence to the demands of plighted faith might be expected of them than would be looked for of the world at large.' In that case, as at bar, the plaintiff, with knowledge of the restrictive covenants and of the defendant's opposition, purchased land opposite the defendant's and sought to build a church. In the absence of proof that 'the character of the neighborhood has so changed as to defeat the object and purposes for which the restrictions were imposed', the Court of Appeals declared the covenants enforceable both at law and in equity (Sahlem, supra, p. 166, 172 N.E. p. 456). The facts at bar are entirely similar to those in Sahlem, with the added circumstance that the Purchaser here is a school, not a church or synagogue. Sahlem is clearly dispositive.

The dissenters, ignoring the limits of both the briefs and the arguments before the trial court, attack the viability of Sahlem in the light of more recent decisions with regard to zoning and restrictive covenants.

Clearly, however, zoning is an aspect of the police power, asserted for the general welfare, and must bear a substantial relation to the public health, safety, morals, or general welfare (Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 74 L.Ed. 303). It is conceded that All schools, public and private, and religious institutions are protected from the full impact of Zoning restrictions because of their contribution to the public welfare (1 Anderson, New York Zoning Law and Practice (2d ed.), pp. 485, 462--463; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 526, 154 N.Y.S.2d 849, 862, 136 N.E.2d 827, 836). While the Court of Appeals has stated that a municipality's lack of power to limit the use or erection of structures for churches and synagogues is founded on the constitutional guarantees of freedom of worship (Matter of Community Synagogue v. Bates, 1 N.Y.2d 445, 458, 154 N.Y.S.2d 15, 25, 136 N.E.2d 488, 496; Matter of Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 496, 293 N.Y.S.2d 297, 303, 239 N.E.2d 891, 896, Supra), at the same time the court noted that appropriate restrictions may nevertheless be imposed on churches and schools and they may also be excluded (Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 526, 154 N.Y.S.2d 849, 862, 136 N.E.2d 827, 836, Supra; Matter of Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 497, 293 N.Y.S.2d 297, 304, 239 N.E.2d 891, 896, Supra).

There is a fundamental distinction between zoning restrictions and private covenants. Zoning is an Encroachment on private property rights and its enforcement requires the justification of an overriding public interest. In contrast, the restrictive private covenant Is itself a property right and its subordination to the right of the purchaser is 'condemnation without authority of law' (Christ's Methodist Church v. Macklanburg, 198 Okl. 297, 300, 177 P.2d 1008, (emphasis added)).

Reliance by the dissenters on Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, is completely misplaced. Unlike the restrictions at bar, the covenants considered in Shelley were racially discriminatory on their face, as clearly and directly pointed out in Ireland v. Bible Baptist Church, 480 S.W.2d 467 (Tex.), cert. denied sub nom., Bible Baptist Church v. Ireland, 411 U.S. 906, 93 S.Ct....