Little Joseph Realty, Inc. v. Town of Babylon

• Decision Date: 12 May 1977
• Citation: 395 N.Y.S.2d 428,363 N.E.2d 1163,41 N.Y.2d 738
• Parties: , 363 N.E.2d 1163 LITTLE JOSEPH REALTY, INC., Respondent, v. TOWN OF BABYLON et al., Appellants. (And Another Action.)
• Court: New York Court of Appeals Court of Appeals

Page 428

395 N.Y.S.2d 428

41 N.Y.2d 738, 363 N.E.2d 1163

LITTLE JOSEPH REALTY, INC., Respondent, v. TOWN OF BABYLON et al., Appellants. (And Another Action.)

Court of Appeals of New York.

May 12, 1977.

Patrick J. Barton, Babylon and Joseph F. Klein, Lindenhurst, for Town of Babylon, appellant.

Max Margules, Mineola, for J. D. Posillico, Inc., and another, appellants.

Bennett E. Aron, West Hempstead, for respondent.

FUCHSBERG, Judge.

This action was brought against the Town of Babylon and the defendants Posillico (J. D. Posillico, Inc., and its wholly owned subsidiary, Posillico Bros. Asphalt Co., Inc.) to enjoin the construction and operation of an asphalt plant in violation of the town's zoning law. The plaintiff, Little Joseph Realty, Inc., is an adjoining property owner.

These salient facts are undisputed: Little Joseph owns approximately eight acres of land improved by buildings in which it leases space to industrial tenants. Sully Concrete Materials Corporation owned an adjoining 19 1/2 acre parcel on which it conducted a sand and gravel mining and screening business. Both parcels are located in the town's "G" Industrial District (light industry). Sully petitioned to downzone its parcel to an "H" Industrial District (heavy industry) so as to permit it to construct and maintain an asphalt plant, a prohibited use in "G" district; after a public hearing, the application was denied. The town then took steps to acquire Sully's land for use as a sanitary landfill site for the deposit of selected refuse; Sully thereupon sold the property to the town. Immediately thereafter, Posillico presented a proposal to the town board to lease 14 acres of the newly acquired property; on 7 acres it planned to build an asphalt plant and on the other 7 to excavate sand for its use in its manufacture of asphalt. This led to the board's adoption of a resolution authorizing the town supervisor to enter into a 15-year lease and an excavation contract with Posillico; no petition for a permissive referendum having been received, he did so.

After a trial on the merits, Special Term dismissed the complaint, holding that the asphalt plant was merely incidental to a governmental use of the land for waste disposal and that therefore the zoning ordinance was not a bar to its "temporary maintenance". It held too that, in any event, plaintiff had suffered no special damage or irreparable harm because its property "has not depreciated in value".

The Appellate Division, weighing the facts differently, as it is empowered to do (CPLR 5501, subd. (c)), after first finding that the invasion of Little Joseph's property by "great quantities of dust and soot from Posillico's plant", which by then was in full operation, constituted sufficient damage to entitle it to "the threshold right to sue for (an) injunction" (51 A.D.2d, at p. 162, 379 N.Y.S.2d at p. 440), went on to decide that the asphalt plant in this case did not enjoy exemption from the zoning ordinance. Upon the basis of proof that the plant had been expensive to construct, that the installation of a specified filter would substantially reduce the emission of dust and that a disparity existed between plaintiff's damages and the larger economic consequences of an injunction, it then directed that an injunction, to be issued pursuant to its order of modification of the judgment of dismissal, be conditioned upon a failure to install the filter. In doing so, it expressly adapted to the options available in private nuisance under our decision in Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870. It further directed a remand to Special Term for a hearing for the determination of damages, ordering, however, that, if the filter was installed, "the damages sustained by the plaintiff shall take into account the diminution of the value of the plaintiff's premises for the entire 15-year period of the lease, the loss of rentals and the extent to which damages will be mitigated by installation of the filter and such other steps as may have been taken to further reduce the emission of dust and soot" (51 A.D.2d at p. 165, 379 N.Y.S.2d at p. 443). (We are advised that the filter has been duly installed.)

Posillico and the town now appeal by leave of the Appellate Division, which certifies to us the broad question as to whether its order was properly made. Little Joseph did not seek leave to cross appeal. In answering the certified question we touch on three areas: (1) plaintiff's standing to sue, (2) whether the Appellate Division had a right to find that the operation of the asphalt plant is under the circumstances in this case an activity of a proprietary rather than governmental nature and (3) the appropriateness of the relief granted.

Standing need not detain us long. The town's primary challenge to the plaintiff's right to maintain this action relies on subdivision 2 of section 268 of the Town Law. That statute, which vests power to enjoin zoning violations in town authorities, provides that, if they fail or refuse to do so after written request by a resident taxpayer of the town, "any three taxpayers * * * who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do." Obviously intended to create an avenue for direct action by which resident taxpayers, acting in concert, may overcome official lassitude or nonfeasance in the enforcement of zoning laws, this provision is hardly to be construed as a diminution of the right of one who suffers damage beyond general inconvenience to the public at large to take legal action on his own (Armstrong v. Gibson & Cushman, 202 Misc. 399, 117 N.Y.S.2d 185, app. dsmd., 280 App.Div. 939, 116 N.Y.S.2d 135; Slevin v. Long Is. Jewish Med. Center, 66 Misc.2d 312, 314-315, 319 N.Y.S.2d 937, 942-943 (Harnett, J.)).

That right is well recognized. "The provision that an official of the village shall enforce the zoning ordinance does not prevent a private property owner who suffers special damage from maintaining an action" (Marcus v. Village of Mamaroneck, 283 N.Y. 325, 333, 28 N.E.2d 856, 860), and thereby seek to enjoin the continuance of the violation and obtain damages (Rice v. Van Vranken, 132 Misc. 82, 229 N.Y.S. 32, affd. 225 App.Div. 179, 232 N.Y.S. 506, affd. 255 N.Y. 541, 175 N.E. 304; cf. Cord Meyer Dev. Co. v. Bell Bay Drugs, 20 N.Y.2d 211, 216-217, 282 N.Y.S.2d 259, 262-263, 229 N.E.2d 44, 46-47). In doing so, the private property owner is pursuing more than a civic interest in law enforcement; he is vindicating a discrete, separate identifiable interest of his own (2 Anderson, New York Zoning Law and Practice, § 23.07, p. 228; Note, The Injunction A Method of Zoning Enforcement, 15 Syracuse L.Rev. 546, 549).

Turning then to the relationship between the governmental vis-a-vis proprietary function dichotomy and the town's obligation to comply with zoning regulations, the general rule is equally clear: A local government may carry out its governmental operations without regard to zoning restrictions, but it is subject to the same restrictions that are imposed on a nongovernmental landowner when it acts in a proprietary capacity (Nehrbas v. Incorporated Vil. of Lloyd Harbor, 2 N.Y.2d 190, 193, 159 N.Y.S.2d 145, 147, 140 N.E.2d 241, 242 (Fuld, J.)).

Granted that the legal classification of a particular municipal activity as governmental or proprietary is, in this transitional age, subject to change with time and circumstance, the operation of a landfill "must today be stamped a governmental function" (Nehrbas, p. 195, 159 N.Y.S.2d p. 149, 140 N.E.2d p. 243) and even the manufacture of asphalt, as for public road building, may very well be. But, in the case now before us, the plant did not manufacture asphalt for use by, or for sale to, the town or its constituent agencies. It was operated solely by and for the commercial benefit of Posillico as a private entrepreneur. The lease, therefore, could not serve to clothe Posillico with immunity from the zoning laws (see, e. g., Carroll v. Board of Adjustment of Jersey City, 15 N.J.Super. 363, 83 A.2d 448; Zoning, Governmental Projects, Ann., 61 A.L.R.2d 970, 972; cf. Matter of County of Suffolk, 48 Misc.2d 39, 42, 264 N.Y.S.2d 162, 166 (Munder, J.); 2 Rathkopf, Law of Zoning & Planning, p. 53-16 (1975 Supp., p. 267)).

Moreover, there is much in the record to suggest that the town's lease to Posillico was not merely a transient or incidental adjunct to its own municipal sanitary landfill program. To be sure, 15 years is not an eon, but it is not an inconsequential period in the duration of a zoning imposition either. And the percentage of the entire parcel devoted to the asphalt plant here was a substantial part of the whole.

Since this case is here only on a certified question, we cannot now review the Appellate Division's finding of fact ¹ on the basis of which it apparently concluded that the town, in the very leasing itself, was engaged in the performance of an act proprietary in character when it thus entered into the business transaction which resulted in the private occupancy of this property for a private purpose. But we do observe that the record, among other things, contains the following relevant additional information on that issue:

Posillico, it developed at trial, had for years been eager to locate an asphalt plant on this parcel, with its built-in supply of sand as a raw material. In fact, it had entered into an agreement with Sully that, if the latter obtained the zoning amendment it sought, it would sell the property to Posillico. When shortly thereafter the town acquired the property, it was only a matter of days before the town board was engaged in exploratory conversations with Posillico; this was at a time not only long before the issuance of the...