Loder v. Goodday
| Decision Date | 21 March 1966 |
| Citation | 25 A.D.2d 671,268 N.Y.S.2d 507 |
| Parties | In the Matter of George E. LODER, Sr., et al., Petitioners, v. Gerald G. GOODDAY, Chairman, et al., members of the Zoning Board of Appeals ofthe Town of Ramapo, County of Rockland, Respondents. |
| Court | New York Supreme Court — Appellate Division |
James F. M. McNulty, New York City, for appellants; Teague W. McCarthy, New York City, of counsel.
Jerome M. Kornfeld, Suffern, for respondent; Andrew Codispoti, Monsey, of counsel.
Before UGHETTA, Acting P.J., and BENJAMIN, CHRIST, HOPKINS and RABIN, JJ.
MEMORANDUM BY THE COURT.
Proceeding pursuant to article 78 of the CPLR to review and to annul a determination of the respondent Zoning Board of Appeals which granted a special permit to construct a Masonic Temple in the Town of Ramapo. By order of the Supreme Court, Rockland County, entered September 15, 1965, the proceeding was transferred to this court for disposition.
Determination confirmed, with costs.
It was within the power of the Board to hold, on the findings made, that the proposed Temple was within the scope of one of the uses set forth in the Zoning Ordinance of the Town of Ramapo (Table of General Use Regulations, Column 3 as referrable to District R--35) for which a special permit may be granted for the property in question, namely, 'Neighborhood or community centers serving primarily local residents.'
The special permit was granted by the Zoning Board of Appeals under the terms of the town zoning ordinance reading as follows:
'On a reference by the Building Inspector after application to the Building Inspector for a building permit or a certificate of occupancy, the Board of Appeals is hereby authorized to issue a Special Permit for any use listed in Use Table Col. 3 subject to the Additional Requirements and conditions therein (or in Col. 8).'
In an R--35 district, in which lies the property for which the special permit was issued, the Zoning Board of Appeals may grant a special permit for 'Neighborhood or community centers serving primarily local residents; such as golf courses, tennis, swimming clubs, community theatres on plots of not less than five (5) acres.'
The special permit was granted to the Ramapo Masonic Association, a fraternal organization, upon certain findings of fact by the Zoning Board of Appeals, which allegedly support its 'opinion' that 'a Masonic Temple is a neighborhood or community center within the meaning of * * * (the) zoning ordinance.' In our opinion, the Board was without power to so conclude.
The Zoning Board of Appeals may not enlarge the powers delegated to it by the ordinance; under the guise of 'neighborhood or community centers serving primarily local residents', it may not permit a use fundamentally at variance with the purpose and function of the activities thereby authorized (cf. Matter of Schroeder v. Kreuter, 206 Misc. 198, 132 N.Y.S.2d 144, affd. 284 App.Div. 972, 135 N.Y.S.2d 637, affd. 308 N.Y. 993, ...
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