Innet v. Liberman
| Decision Date | 05 July 1956 |
| Citation | 155 N.Y.S.2d 383 |
| Parties | Application of Edward H. INNET, as Supervisor, and Edward N. Vetrano, P. Boice Esser, Patsy Massaro and Thomas J. Coyle, as Councilmen, constituting all of the members of the Town Board of the Town of Greenburgh, Theodore Beesley, Bertha Ann Beesley, Otto C. Doering, Lucy T. Doering, Sylvia T. Katz, William A. Mac Farlane, Jane L. Mac Farlane, Jack A. Sobel, Hannah E. Sobel, Jack Derevensky, Norma Derevensky, William Pirk, Frances K. Pirk, Mathilde J. Miller, Donald A. Bohl and Martha Habenicht, Petitioners, v. Julian LIBERMAN, Charles E. Stahl, Jr., Frank X. Hahn, Frank Roegge and Frank M. Bosworth, constituting all of the members of the Zoning Board of Appeals of the Town of Greenburgh, Carroll M. Worthington, as Building Inspector of the Town of Greenburgh, and Bobandal Realties, Inc., Respondents, for a review of a determination and order of said Zoning Board of Appeals made in the matter of Bobandal Realties, Inc. Application of Don P. WALLACH, Beatrice R. Wallach, Sol Martin, Ethel Martin, Walter M. Langsdorf and Jerome Adler, Petitioners, v. Julian LIBERMAN, Charles E. Stahl, Jr., Frank X. Hahn, Frank Roegge and Frank M. Bosworth, constituting all of the members of the Zoning Board of Appeals of the Town of Greenburgh and Carroll M. Worthington as Building Inspector of the Town of Greenburgh, and Bobandal Realties, Inc., Respondents, for a review of a determination and order of said Zoning Board of Appeals made in the matter of Bobandal Realties, Inc. |
| Court | New York Supreme Court |
Charles J. Costabell, New York City, for petitioner Town Board of Greenburgh.
Kent, Hazzard, Jaeger & Wilson, White Plains, for individual petitioners.
William Scott, 2nd, White Plains, for respondent-owner.
Behrman & Real, Mt. Vernon, for respondent Zoning Board of Appeals.
This is a proceeding under Article 78 of the Civil Practice Act and the Town Law brought by the members of the Town Board of the Town of Greenburgh, jointly with individual neighboring properties owners, to review a determination made by the Zoning Board of Appeals of the Town of Greenburgh on April 6, 1956, granting to respondent-owner (Bobandal Realties, Inc.) a variance and directing the Building Inspector to issue a permit for the construction and use of a swimming pool. A similar proceeding has also been commenced by additional individual property owners and both proceedings have been presented to the court simultaneously for hearing upon the facts.
The court is faced with the preliminary question as to whether the individual members collectively constituting the Town Board are a 'person aggrieved' within the meaning of the Town Law, Section 267, subdivision 7. Despite the express language of the Town Law, Section 267, subdivision 2 which permits 'any person aggrieved, or by an officer, department, board or bureau of the town' to appeal to the Board of Appeals from any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance, and the absence of the words 'officer, department, board or bureau of the town' from subdivision 7 of Section 267, this court holds that for the purpose of the decision to be made in these proceedings, the individual members of the Town Board, collectively and in their representative capacities, are proper party petitioners. Cf. Village of Bronxville v. Francis, 206 Misc. 339, 134 N.Y.S.2d 59, modified on other grounds, 1 App.Div.2d 236, 150 N.Y.S.2d 906, affirmed by Court of Appeals, 1 N.Y.2d 839, 153 N.Y.S.2d 220. See also Section 282, Town Law. As far as the individual neighboring property owners are concerned, the court holds that they likewise are aggrieved persons and proper petitioners in the light of the allegations in the petitions. Cf. Rice v. Van Vranken, 132 Misc. 82, 229 N.Y.S. 32, affirmed 225 App.Div. 179, 232 N.Y.S. 506, affirmed 255 N.Y. 541, 175 N.E. 304. See Bayport Civic Ass'n v. Koehler, Sup., 138 N.Y.S.2d 524.
The subject property is a portion of what was formerly and commonly known as 'Schmidt's Farm', Greenburgh, New York, which for many years had been owned and operated by the Schmidt family as a restaurant and picnic area. Fraternal organizations, political organizations, Bar Associations and other large groups of people would engage the facilities of Schmidt's Farm for picnics, clambakes and similar types of outings.
Respondent-owner in September 1955 purchased this property from a corporation owned by the Schmidt family. It is now divided into two parcels. Parcel 19A is the tract of land on which the restaurant building (now known as Fort Hill Restaurant) stands and Parcel 37A (vacant land at the time the instant determination was made) adjoins it immediately to the north and west. The record does not disclose the fact, but all parties seem to agree that for many years prior to 1932 and perhaps even prior to 1924, the Schmidt family conducted a restaurant business on Parcel 19A. In 1938, Mr. Schmidt acquired title to the adjoining unimproved Parcel 37A. This is the parcel for which the variance hereinafter mentioned has been granted and which is the subject of these proceedings.
The record discloses that the first Zoning Ordinance of the Town of Greenburgh was enacted on May 2, 1924. This was subsequently repealed and the present Building Zone Ordinance was enacted in lieu thereof on September 29, 1932. This latter ordinance approved lawful pre-existing non-conforming uses. Under both ordinances Parcels 19A and 37A were at all times located in a one family residential district. All parties agree and concede that the restaurant operation including the furnishing of facilities for picnics, outings and clambakes on Parcel 19A was a lawful non-conforming use on September 29, 1932, and no one contests this point. However, it is the extension of the use of the adjoining Parcel 37A as an 'athletic field' in conjunction with and accessory to these picnics, outings, clambakes and the like, which is the target in these proceedings.
Respondent-owner contends that on the date of the enactment of the 1932 zoning ordinance, said Parcel 37A likewise enjoyed a non-conforming use, since this land was used prior to said date as an athletic field where patrons engaged in baseball games and similar outdoor festivities. There is some indication in the record that this use goes back to 1926 or 1927 (or perhaps further). It was upon this major premise that the respondent-owner filed his present application for a variance. It contends, in substance, that despite the fact that Parcel 37A is and has been located in a residential district since the enactment of the 1932 ordinance, yet, since its predecessors in title used this land prior thereto, either by 'lease, adverse possession or actual ownership' for a business purpose, it is now constitutionally protected and will be permitted to continue notwithstanding the contrary provisions of the ordinance. Many decisions of this state in approving this proposition are sometimes predicated upon the ground that the owner has secured a 'vested right' in the particular use--which is but another way of saying that the property interest affected by the particular ordinance is too substantial to justify its deprivation in the light of the objectives to be achieved by the enforcement of the provisions. See People v. Miller, 304 N.Y. 105, 107, 108, 106 N.E.2d 34, 35.
The application, as originally filed by respondent-owner with the Building Inspector, was for the construction of a 'swimming pool to be used in conjunction with present operation at existing restaurant, picnic grounds, etc.--no fee or charges will be made for use of swimming pool.' This application was denied by the Building Inspector on the ground that in his opinion the proposed swimming pool constituted a non-conforming use under the Building Zone Ordinance and under those circumstances, he was without power to issue a building permit. This denial was followed by the immediate filing by the owner with the Zoning Board of Appeals an application for a variance under Article I, Section 4(a) of the Building Zone Ordinance hereinafter referred to. In this latter application, respondent-owner stated:
Without deciding the various contentions regarding the legality and sufficiency of the hearings had upon the aforementioned application, it is sufficient to observe that petitioners and respondents were adequately represented at these hearings by counsel and after 'having deliberated at great length thereon' the Board of Appeals granted the application and directed the issuance of a building permit for the construction of a swimming pool, the cost of which will approximate $80,000, and which, according to petitioners, will accommodate 480 bathers at one time. Implicit in its determination, respondent-board in substance found (1) that the owner had established a non-conforming use for Parcel 37A upon which portion of the property the pool was to be located even though this land was not owned by the owner or by Mr. Schmidt on the date of the enactment of the 1932 ordinance; (2) that said portion of the property was used as an 'athletic field, whether by lease, adverse possession or actual ownership'; ...
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