Lapham v. Roulan
| Decision Date | 10 December 1957 |
| Citation | 10 Misc.2d 152,169 N.Y.S.2d 346 |
| Parties | Application of Nathan D. LAPHAM and Marshall J. Root, Jr., Petitioners, v. Robert J. ROULAN, Fredericka B. McCann, G. Raymond Harrold, Alfred J. King, Michael G. Michaels, and Henry J. Visco, Constituting the Board of Appeals of the City of Geneva, New York, and William J. Maher, Respondents. Application of James C. STEPHENS, Catherine D. White, Florence B. Licht, Ward F. Carr, Mary Louise Carr, Harriet L. Reuter, Marion K. Wilson, Robert B. Spencer, Helen T. Spencer, Gordon H. Bennett, John H. Thornton, Henry M. Roenke, Pauline Y. Roenke, Lena Guilfoose, Petitioners, v. Robert J. ROULAN, Chairman of the Board of Appeals, and Fredericka McCann, G. Raymond Harrold, Alfred J. King, Michael G. Michaels and Henry Visco, constituting the Board of Appeals, and William J. Maher, Respondents. |
| Court | New York Supreme Court |
Lyman B. Lewis, Geneva, for Nathan D. Lapham, and others, petitioners.
Bond & McDonald, Geneva (William J. McDonald, Geneva, of counsel), for James C. Stephens, and others, petitioners.
Frederick L. Fabrizi, Geneva, for Robert J. Roulan, and others, constituting the Board of Appeals, respondents.
Frederick M. Toole, Geneva, for William J. Maher, respondent.
Petitioners have instituted two proceedings herein, heard together, to have the court annul the decision of the respondent Board of Appeals granting to respondent William J. Maher a zoning variance. Petitioners are owners of lands adjoining or in the close neighborhood of the property with respect to which the variance was granted. Said property and the properties of petitioners lie within the Multiple Residence District of the City of Geneva, as established in 'The 1956 Zoning Ordinance' of said city.
It appears that in 1953 a predecessor ordinance was adopted, and that prior thereto a zoning ordinance for the City of Geneva was first adopted on August 7, 1930. Under all three ordinances the property in question was situated in a multiple residence district, in which uses were permitted and limited similar to those of the 1956 ordinance. It further appears that in 1928 respondent Maher bought a house and lot fronting on the east side of Twomey Place, Geneva, having dimensions of 30 feet frontage and 56.5 feet depth. Later in 1944 he bought the lot next north of said house, which lot was of equal size and had a garage building on it. It is said that 'in 1930' respondent Maher began to operate an electrical business from his home, and that he leased the lot which he later bought in 1944, above mentioned, and used the structure thereon in his business. Said lots are in the Multiple Residence District. Such business was not a permitted use under the zoning ordinance of 1930, nor is it under the present ordinance.
In 1950 respondent Maher bought the lot next east of his two lots above described; and it is this latter lot with which we are here concerned. It is 63 feet wide, north and south, and 107.25 feet deep, and a one-story brick building sits on it. It is an interior lot, having no street frontage; but on the east it abuts Carriage Road, a private right of way 9 feet wide, which extends easterly from said lot about 235 feet to South Main Street. At the point where said Carriage Road meets the east boundary of said lot, to wit, about the middle of said east boundary line, the road makes a right angle turn northerly along the east boundary of the lot and continues about 10 feet northerly to Park Avenue, a narrow street. Traffic on Park Avenue is limited to one way, to wit, westerly. Twomey Place, upon which respondent Maher's two lots first above mentioned face, is a 'dead end' street, 25 feet in width, running southerly from said Park Avenue to a point 147 feet beyond respondent Maher's property.
In May 1957 Maher made application for a permit to build a cement block, one-story addition to the brick building on said lot which he acquired in 1950. The Superintendent of Buildings and Zoning rejected the application because the zoning ordinance prohibited the use of the building for the purpose for which Maher stated he intended to use it, i. e., the expansion of his electrical business.
Thereafter said superintendent presented to the Zoning Board of Appeals Maher's original application for building permit which had been rejected. The board directed that a public hearing be held in the matter to determine whether a variance should be granted, and due notice of the hearing was given. At the hearing Maher presented written consents to the granting of the variance signed by all owners on Twomey Place and by over one-half the owners on Park Avenue. Petitioners appeared in opposition, in person and by attorneys, and many spoke against the granting of the variance. Maher appeared in person and by his attorney who spoke, but no witnesses were sworn and no formal evidence was taken by the board. After the hearing ended the board adjourned the matter for two days and invited Maher to be present for the consideration of limitations in a permit if a variance were granted. No notice thereof was given to petitioners or anyone else, but the afternoon Geneva paper of the evening to which the matter was adjourned carried a news article about the pending meeting and the meeting was held in a public meeting room. There the board adopted a resolution granting the variance with certain specified limitations or restrictions. The Chairman of the Board of Appeals then signed his approval on the original application by Maher to the Superintendent of Buildings and Zoning for a building permit.
The decision of the Board of Appeals was not filed in the board's office nor in the City Clerk's office, and has not yet been filed. One might think, parenthetically, that entering the resolution in the minutes of the board would amount to a filing of the decision in the board's office, but the board admit in their answer that the decision has not been filed. On July 2nd the Superintendent of Buildings and Zoning noted on the back of Maher's original application for building permit that it was granted, for storage use; and this application form with the signature of approval of the Chairman of the Board of Appeals and with notation on the back thereof by the Superintendent of Buildings and Zoning was filed in the office of the City Clerk. No mention was made thereon of the limitations specified by the Board of Appeals in their resolution granting the variance.
Petitioners then instituted these proceedings. In their return respondent board have not stated the evidence upon which they made their decision and have submitted no findings which may be reviewed by this court. In support of their answer they have submitted an affidavit made by the Chairman of the Board setting forth in detail statements made at the hearing by Maher's attorney and accepted by the board, and stating that from the personal acquaintanceship of the board members with the situation in the area of the lot in question, the board found those facts to be established and that they constitute the basis of the board's decision.
In their formal answer, however, the board state the basis of their decision to be as follows:
Many objections are made to the legality of the proceeding before the Board of Appeals and their decision. The objection to the manner in which the appeal was made to the Board of Appeals is dismissed as without merit in law. The practice of having the officer who denied the application for permit present the original application to the Board of Appeals in behalf of the applicant is certainly not contemplated by the statute (General City Law, § 81, subd. 2), which provides that a notice of appeal shall be filed with the officer from whom the appeal is taken and with the Board of Appeals. There has been violation of this provision. The object of the statute however is that notice of the appeal be given to the officer from whose decision appeal is taken, to set him in motion to transmit to the Board of Appeals 'all the papers constituting the record upon which the action appealed from was taken.'...
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