MATTER OF GRIEST v. Hooey

• Decision Date: 05 March 1954
• Citation: 205 Misc. 396
• Parties: In the Matter of Edward Griest et al., Petitioners,<BR>v.<BR>Vern E. Hooey et al., Constituting The Board of Appeals of the City of Corning, et al., Respondents.
• Court: New York Supreme Court

205 Misc. 396

In the Matter of Edward Griest et al., Petitioners,

v.Vern E. Hooey et al., Constituting The Board of Appeals of the City of Corning, et al., Respondents.

March 5, 1954.

Harry Treinin for petitioners.

Ransom Pratt, City Attorney, for Vern E. Hooey and others, constituting the Board of Appeals, and another, respondents.

WITMER, J.

Petitioners ask the court to annul and set aside the action of the zoning board of appeals of the City of Corning in granting the application of the respondents, Edward Jones and Thelma B. Jones, for a variance, and authorizing the issuance to them of a permit to construct a retail tire store mostly upon lots 27 and 28 on South Place in the city of Corning.

Respondents Jones own fifteen contiguous lots, ten of which, numbered 48 through 57, front on the east side of Centerway and extend from South Place on the south to North Place on the north a distance of 230 feet, and are 130 feet deep from the east line of Centerway. Three lots, Nos. 27, 28 and 29, are next east of the southerly five lots of the ten above-mentioned and front on South Place. They are each 53.4 feet wide and 115 feet deep. The two remaining lots, Nos. 26 and 25, are next east of the northerly five lots of the ten above-mentioned, and face on North Place. They are each 53.4 feet wide and 115 feet deep, and in the rear adjoin lots 27 and 28. Lot 29 is next east of lot 28, and there is a residence thereon occupied by a tenant.

In 1949, the City of Corning adopted its zoning ordinance. By it, the area on the east side of Centerway and extending 150 feet easterly therefrom, was designated as a business district, and the area east of such district was designated as residential. Petitioners herein are residents of this residential district and live near said lots 25 through 28. Respondents Jones owned said fifteen lots prior to and at the time the zoning ordinance was adopted.

Respondent, Edward Jones, has a business building on the lots which front on the east side of Centerway, in which he operates the business of Jones Motor Company, an automobile sales and service agency. In connection with such business, he has used lots 25 through 28 for storage space for automobiles from a time antedating the adoption of the zoning ordinance. It is observed that the west twenty feet of lots 26 and 27, which are immediately contiguous to the rear of the Centerway lots, is within the business district.

In the spring of 1953, respondents Jones made application to the superintendent of building construction of Corning for a permit to erect principally on lots 27 and 28 and partly on the rear of lots 25 and 26 a building for use as a retail tire store, said building to be approximately forty-five and one-half feet wide, ninety-two feet long, and twelve and one-half feet tall. The superintendent denied the application because the lots are largely in the residential district. Respondents Jones then applied to the zoning board of appeals of Corning for a variance, pursuant to article XVI, B. and C., of the zoning ordinance, to permit their use of an area sixty feet in depth next east of the business district in connection with their Jones Motor Company business, which additional area would accommodate the retail store building they desired to erect. At a meeting of the board of appeals held on April 23, 1953, of which notice was given to no one except the superintendent of building construction and respondents Jones, the board of appeals made and filed its decision authorizing the superintendent to issue a permit to the respondents Jones according to the plans submitted. The plans showed that the building would be set back from South Place a distance of twenty-five feet and would be thirty feet from the east line of lots 28 and 25.

Pursuant to the Labor Law and the Industrial Code of the State of New York, respondents Jones then made application to the Department of Labor at Albany for permission to erect the structure. On September 3, 1953, sixty-eight area residents, including petitioners herein, presented a petition to the board of appeals objecting to the erection of the building by the respondents Jones, and it was received and filed by the board. On October 28, 1953, the State Department of Labor certified its conditional approval and recommended issuance of the building permit if the owners met the conditions. Respondents Jones then submitted plans to conform to such conditions. On December 8, 1953, the superintendent of building construction issued a building permit to respondents Jones. On December 10, 1953, at a meeting of the board of appeals the area residents, through attorney Harry Treinin, argued their objections to the proposed building. The only action taken by the board at the meeting on this subject was to re-examine the later plans submitted by respondents Jones, and when it was discovered that the plans were different from the ones originally filed and upon which the board acted in authorizing issuance of the permit, in that the later plans provided for a setback of twenty feet instead of twenty-five feet from South Place, the board voted to revoke the permit issued December 8, 1953, because it did not conform to the board's authorization of April 23, 1953. On December 17, 1953, respondents Jones resubmitted plans which conformed to the original plans of April, 1953. The board stated at its meeting on that day that it would take no action thereon since its action of April 23, 1953, sufficed and there was no occasion for it to act further. On December 18, 1953, the superintendent of building construction issued a permit to respondents Jones in conformity with the board's authorization of April 23, 1953. On January 4, 1954, petitioners presented to the court the petition herein pursuant to subdivision 1 of section 82 of the General City Law.

Petitioners contend that the action of the board of appeals on April 23, 1953, was contrary to law and that it is a nullity because no notice of the meeting was given to them nor to others similarly situated. Respondents answer that neither the statute nor the ordinance, nor any rule or regulation of the board of appeals, requires notice to petitioners, and that since this proceeding was not instituted within thirty days of the filing of the decision of the board of appeals on April 23, 1953 (General City Law, § 82, subd. 1; Civ. Prac. Act, § 1286), it is untimely and must be dismissed.

The application by the area residents, including petitioners, in September, and the meetings of the board of appeals in December, 1953, did not serve to extend the time within which this proceeding to review must be brought, because no new facts were presented to nor considered by the board of appeals, and indeed the board took no action upon petitioners' application. (Matter of Weinstock v. Hammond, 270 N.Y. 64; Matter of Hall v. Leonard, 260 App. Div. 591, 595, affd. 285 N.Y. 719; Campbell v. Nassau County, 273 App. Div. 785; Matter of Canzano v. Hanley, 188 Misc. 167; Matter of Harrington v. Coster, 194 Misc. 577; Matter of Mallen v. Morton, 199 Misc. 805, 811; Rosenblatt v. Finkelstein, 84 N. Y. S. 2d 193; Fleischer v. Murdock, 62 N. Y. S. 2d 417.) Moreover in the absence of new facts, the board of appeals would have had no right to reopen its decision of April 23, 1953, and render a new decision even had it wished to do so. (Matter of Collins v. Board of Stds. & Appeals, 253 N.Y. 594; Town of Greece v. Smith, 256 App. Div. 886; Matter of Riker v. Board of Stds. & Appeals, 225 App. Div. 570; and cf. Matter of Reed v. Board of Stds. & Appeals, 230 App. Div. 21, 25, affd. 255 N.Y. 126.) Whether there is such a change of facts or circumstances as to justify a rehearing is primarily for the board of appeals to determine on the application for rehearing. (Matter of Amer. Seminary of the Bible v. Board of Stds. & Appeals, 280 App. Div. 792; Ellsworth Realty Co. v. Kramer, 268 App. Div. 824.) The board found no new facts justifying a reopening of the matter, and there is no basis in this proceeding for the court to disagree with the board in this respect.

Thus, petitioners on January 4, 1954, have asked this court to review the decision of the board of appeals filed in its office on April 23, 1953. The petition is untimely (Pallante v. Board of Stds. & Appeals, 245 App. Div. 729; Matter of Canzano v. Hanley, supra, 188 Misc. 167; Matter of Mallen v. Morton, supra, 199 Misc. 805, 811; Fleischer v. Murdock, supra, 62 N. Y. S. 2d 417), and it must be dismissed unless the action of the board of appeals was illegal for lack of notice to petitioners of the meeting of April 23, 1953.

Subdivision 4 of section 81 of the General City Law is part of the statutory basis for the Zoning Ordinance of Corning. It provides in part as follows: "The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to the parties, and decide the same within reasonable time." The Zoning Ordinance of Corning (art. XVI, C., subd. 2) provides as follows: "Variances. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulation (sic), the Board of Appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of this ordinance so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done."

It is to be noted that this section of the ordinance makes no provision for notice. It is presumed, however, that the provisions of subdivision 4 of section 81 of the General City Law above-quoted apply to and must be read into the ordinance. Subdivision 3 of article XVI, C., of the ordinance authorizes special exceptions in specified cases "after due notice", but it does not apply to this case. Counsel have advised the court that the board of appeals has adopted no rule or regulation requiring...