Kenville Realty Corp. v. Board of Zoning Appeals of Briarcliff Manor

• Decision Date: 28 June 1965
• Citation: 48 Misc.2d 666,265 N.Y.S.2d 522
• Parties: KENVILLE REALTY CORPORATION, Petitioner, v. BOARD OF ZONING APPEALS OF the VILLAGE OF BRIARCLIFF MANOR, New York, Respondent. For a judgment pursuant to the provisions of Article 78 of the Civil Practice Law and Rules, reviewing and annulling the determination of the Respondent made on
• Court: New York Supreme Court

Page 522

265 N.Y.S.2d 522

48 Misc.2d 666

KENVILLE REALTY CORPORATION, Petitioner, v. BOARD OF ZONING APPEALS OF the VILLAGE OF BRIARCLIFF MANOR, New York, Respondent.

For a judgment pursuant to the provisions of Article 78 of

the Civil Practice Law and Rules, reviewing and annulling

the determination of the Respondent made on June 28, 1965,

which directs the revocation of certificates of occupancy of

Petitioner's property.

Supreme Court, Westchester County.

Dec. 14, 1965.

McCarthy, Fingar, Gaynor, Sullivan & Donovan, White Plains, for petitioner.

Edward Conrad Clune, Tarrytown, for respondent.

JOSEPH F. GAGLIARDI, Justice.

This is a proceeding (CPLR, art. 78) to annul a determination dated June 28, 1965 of the Board of Zoning Appeals of the Village of Briarcliff Manor, which found the noise emanating from petitioner's refrigeration and air-conditioners to be excessive. Thereupon, the Board gave petitioner 'sixty (60) day * * * in which to take any necessary steps to accomplish the reduction of said noise to reasonable levels in the opinion of this Board, and in the event of their failure to do so within said period all certificates of occupancy on said premises shall be revoked forthwith.'

Petitioner owns a small shopping center in a commercial zone for which it had obtained a 'temporary' certificate of occupancy. Sidney Shaievitz and John G. Ferreri own two homes in the residential area which abuts to the rear. They complained of the noise emanating from the refrigeration compressors and air-conditioners on the premises and eventually brought proceedings in the Board of Zoning Appeals to cancel the temporary certificate of occupancy.

An extensive public hearing was conducted. The owners and expert witnesses testified and the Board personally viewed the premises. The Board found that the noise was audible in Mr. Schaievitz' cellar with the door closed. The readings of audio instruments placed the noise at levels similar to that of four piston engined aircraft passing overhead at 1,000 feet or a locomotive with cars passing at 200 feet.

The Board's finding that the noise constitutes a 'private nuisance' cannot be ruled as arbitrary or capricious. Rather, the problem is whether the Board had the power to intervene in the way it did and whether the ordinance is too vague for enforcement.

The applicable provision is contained in the 'Schedule limiting the use of buildings and land' under 'retail Business B1 District.' It reads in pertinent part as follows:

'* * * no operation shall be permitted which would be offensive, obnoxious or detrimental by reason of vibration, dust fumes, odor, noise, lights or traffic generation and resultant congestion * * *.'

A Board of Zoning Appeals must be furnished a sufficient standard or rule by which its actions are to be governed (Matter of Little v. Young, 274 App.Div. 1005, 85 N.Y.S.2d 41, affd. 299 N.Y. 699, 87 N.E.2d 74). The issue is whether the above language supplies such standards or rules. Surprisingly enough, neither counsel nor the Court's research has supplied conclusive New York precedents. The basic difficulty with a statute in the form before this Court was forcefully stated by the Supreme Court of Florida:

'Objectionable to whom? * * * [T]ake noise for example, it might be said that it is objectionable in some degree to any adult with good hearing. As a general proposition, the less noise the better. * * * Such a test, which is in reality no test at all * * * places the owner of business property wholly at the whim and mercy of his neighbors.' (Phillips Petroleum Co. v....