Imbergamo v. Barclay

• Decision Date: 26 December 1973
• Citation: 77 Misc.2d 188,352 N.Y.S.2d 337
• Parties: Application of Salvatore C. IMBERGAMO, Petitioner, v. George C. BARCLAY et al., constituting the Board of Trustees of the Incorporated Village of Lloyd Harbor etc., Respondents.
• Court: New York Supreme Court

Page 337

352 N.Y.S.2d 337

77 Misc.2d 188

Application of Salvatore C. IMBERGAMO, Petitioner, v. George C. BARCLAY et al., constituting the Board of Trustees of the Incorporated Village of Lloyd Harbor etc Respondents.

Supreme Court, Special Term, Suffolk County, Part I.

Dec. 26, 1973.

Salvatore C. Imbergamo, per se.

Charles W. Root, Village Atty., Huntington, for respondent Village of Lloyd Harbor.

LEON D. LAZER, Justice.

In this Article 78 proceeding, petitioner seeks to annul the grant of a special use permit by the respondent Board of Trustees of the Village of Lloyd Harbor to the Friends World College to renovate and use three former Nike site buildings located on the latter's campus.

Petitioner's target is the proposal of the College to renovate one of the buildings and lease it to the Huntington Township Art League (the 'League') for ten years (at a rental calculated to pay for the renovation). The League, a non-profit membership corporation, plans to conduct art classes for Town residents and students at the college although the premises will also be used for several annual art exhibits and bazaars projected for fund raising purposes.

The College's 93 acre campus lies in the Residence A--1 District of the Village of Lloyd Harbor in which there are permitted:

'Educational institutions only when authorized by the Board of Trustees in accordance with the provisions of Article IX of this ordinance and provided that the buildings and property of such institution shall be used for bona fide educational purposes recognized by the Board of Regents of the State of New York.'

(Lloyd Harbor Zoning Ordinance Article V, § 5.0 (h))

Article IX, Section 9.0 of the zoning ordinance authorizes the Board of Trustees to grant a special use permit where the use is not detrimental to the essential character, health, safety, morals or general welfare of the community and is consistent with the Master Plan.

The Board's power to 'authorize' the use may be characterized as a special exception or special use permit (Hartnett v. Segur, 21 A.D.2d 132, 249 N.Y.S.2d 193) and the exercise of such power by a legislative body is administrative in nature (Rothstein v. County Operating Corp., 6 N.Y.2d 728, 185 N.Y.S.2d 813, 158 N.E.2d 507; Bar Harbour Shopping Center, Inc. v. Andrews, 23 Misc.2d 894, 196 N.Y.S.2d 856) at least to the extent that it is subject to review in an Article 78 proceeding (Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 226 N.Y.S.2d 374, 181 N.E.2d 407; Sun Oil Co. v. Young, 37 A.D.2d 969, 327 N.Y.S.2d 211). The judicial function in such review is exhausted when there is found to be a rational basis for the conclusion reached (Lemir Realty Corp. v. Larkin, supra; Greenpoint Sav. Bank v. Board of Zoning Appeals, 281 N.Y. 534, 24 N.E.2d 319; Victory Markets v. Herman, 38 A.D.2d 625, 326 N.Y.S.2d 827; Leathersich v. Wade, 20 A.D.2d 963, 249 N.Y.S.2d 609). A special use permit may not be issued for a use prohibited or specifically proscribed by the zoning ordinance (Simensky v. Mangravite, 16 A.D.2d 977, 230 N.Y.S.2d 170, aff'd 12 N.Y.2d 908, 237 N.Y.S.2d 1007, 188 N.E.2d 270; Tidewater Oil Company v. Mangravite, 38 Misc.2d 662, 238 N.Y.S.2d 605; Barr v. Michaelis, 40 Misc.2d 968, 244 N.Y.S.2d 420), and in fact such permit may be granted only for a use or improvement which is expressly permitted subject to approval by an official body (Szelega Enterprises, Inc. v. Town of Vestal, 36 A.D.2d 483, 320 N.Y.S.2d 963; Hartnett v. Segur, supra).

Petitioner asserts, Inter alia, that respondent's action is Ultra vires because the League is not a recognized educational institution as required by the ordinance and because the lease implies a commercial venture incompatible with residential use. With respect to his first assertion, petitioner has misread the ordinance. Its recognition criterion applies not to the educational institution itself but to the uses to which its property is put. Had the Board intended to restrict the grant of special use permits to those institutions approved by the Board of Regents it could easily have done so (see the ordinances described in Paris v. Eisenberg,35 Misc.2d 934, 231 N.Y.S.2d 189 and in Merrick Community Nursery School v. Young, 11 Misc.2d 576, 171 N.Y.S.2d 522). The Board of Regents is the head of the Education Department and is empowered to appoint a Commissioner of Education who serves as the administrative officer (Education Law § 101). The Commissioner is charged with executing educational policies determined by the Regents (Education Law § 305). The Commissioner's regulations provide, Inter alia, for a three year sequence in the visual arts as part of the curriculum offered to students in the public high schools of this State (8 NYCRR 100.1(b)). The regulations also mandate courses in the visual arts at the junior high school level (8 NYCRR 100.1(d)) and in public day schools (8 NYCRR 100.1(e)). The State's public school system includes the Fiorello H. LaGuardia High School of Music and Art in New York City, which provides intensive instruction in the arts. The Legislature has established, as state policy, the goal of insuring that the role of the arts, 'play an ever more significant part in the welfare and education experience of our citizens . . .' (Executive Law, Art. 19--I, § 526) and has provided for art instruction in continuing education schools (Education Law § 4604). The list of degrees authorized by the Board of Regents includes, among others, a Bachelor of Fine Arts and a Master of Fine Arts (8 NYCRR 3.50). Instruction in art is clearly an educational purpose recognized by the Board of Regents.

The League qualifies as an educational institution because its objective ('to foster an application of the arts') has some educational value, it performs some educational function (84 C.J.S. Taxation § 283) and it is organized exclusively for that purpose (Goldstein v. Mills, 185 Misc. 851, 57 N.Y.S.2d 810, aff'd 270 App.Div. 930, 62 N.Y.S.2d 619). It should be distinguished from those organizations which have been denied special use permits on the ground that their activities are not educational (see Fremed v. Bayswater Park, 11 Misc.2d 1017, 176 N.Y.S.2d 729 and Margo Operating Corp. v. Village of Great Neck, Sup., 129 N.Y.S.2d 436 (summer camps); Delpriore v. Ball, 281 App.Div. 214, 118 N.Y.S.2d 53 (dancing school); Village of East Hampton v. Mulford, 188 Misc. 1037, 65 N.Y.S.2d 455 (riding academy)). The League retains a full staff of instructors and proposes to conduct art classes for adults and children for 35 weeks a year, at the rate of 22 classes per week with 15 to 156 participants in a thirteen hour day (see Brookville v. Paulgene Realty Corp., 24 Misc.2d 790, 200 N.Y.S.2d 126, aff'd 14 A.D.2d 575, 218 N.Y.S.2d 264, aff'd 11 N.Y.2d 672, 225 N.Y.S.2d 750, 180 N.E.2d 905).

As to petitioner's contention that the lease to the League implies a commercial venture, the word 'commercial' as used in the law of zoning denotes 'uses for profit' (2 Anderson, American Law of Zoning § 11.01). Both the League and the College are non-profit organizations and they cannot be excluded from a residential area merely because they are privately sponsored (Diocese of Rochester v. Planning Board of Town of Brighton, 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827; Merrick Community Nursery School v. Young, supra). The fact that the League conducts occasional art sales and bazaars does not transform it into a commercial venture (Not For Profit Corporation Law § 508; cf. Stoller v. Board of Zoning Appeals, 40 A.D.2d 867, 337 N.Y.S.2d 946); neither does the fact that it leases real property (Not For Profit Corporation Law § 202(a)(4)). The renovation undertaken by the College as part of its integrated expansion program is a valid purpose where educational uses are permitted (see Concordia Collegiate Institute v. Miller, 301 N.Y. 189, 93 N.E.2d 632).

Petitioner urges that the community will be adversely affected by traffic congestion resulting from the League's activities. The entrance to its building is only 1,000 feet from a point where children cross School Lane to enter an elementary school which is also the location of Little League games and various summer activities. A traffic survey made by the Traffic Safety Department of Suffolk County (submitted in a report by the Village Planning Board) shows that existing traffic volume on School Lane averages 760 vehicles per day while the increase generated by the League is projected at 400 vehicles for a total of 1160 vehicles per day. The report concludes that the volume could go as high as 5,750 before a traffic signal would be warranted. While summer information would no doubt be...