Nassau Children's House, Inc. v. Board of Zoning Appeals of Inc. Village of Mineola

• Decision Date: 11 August 1980
• Citation: 430 N.Y.S.2d 683,77 A.D.2d 898
• Parties: In the Matter of NASSAU CHILDREN'S HOUSE, INC., Respondent, v. BOARD OF ZONING APPEALS OF the INCORPORATED VILLAGE OF MINEOLA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 683

430 N.Y.S.2d 683

77 A.D.2d 898

In the Matter of NASSAU CHILDREN'S HOUSE, INC., Respondent, v. BOARD OF ZONING APPEALS OF the INCORPORATED VILLAGE OF MINEOLA, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 11, 1980.

Murphy & Bartol, Garden City (Patrick M. Murphy, Jr., Garden City, of counsel), for appellant.

Sprague, Dwyer, Aspland & Tobin, P. C., Mineola (Eugene Kirby Ferencik and Joseph L. Tobin, Jr., Mineola, of counsel), for respondent.

Before LAZER, J. P., and GIBBONS, GULOTTA, COHALAN and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Incorporated Village of Mineola, dated December 7, 1978, which denied petitioner's application for a declaration that its program constituted a permitted school use and for an area variance, the appeal is from a judgment of the Supreme Court, Nassau County, dated May 21, 1979, which annulled the determination and directed the board to grant petitioner's application.

Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed, without prejudice to the institution of a declaratory judgment action.

Nassau Children's House, Inc. (the shelter) is a not-for-profit corporation which maintains a children's shelter in the Village of Mineola in the R-2, One Family Residential District, in which private and public schools are a permitted use. One of the two main structures at the premises houses 25 children ranging in age from 12 to 18; the other building is used for administrative purposes. The shelter funds its operations with the assistance of the Nassau County Department of Social Services, the State of New York, and by its own fund raising activities.

In 1978 the shelter sought a permit from the Mineola building department to construct four attached buildings which would be utilized to house children residing at the premises. Under the proposal, a maximum of eight children and a supervising couple would be housed in each unit, thus increasing the number of children sheltered to 32 and creating a family atmosphere and permitting greater supervision than that currently available. The space presently utilized as bedrooms in one of the main buildings would be converted to classrooms.

Under section 60-144.1 of the Mineola zoning ordinance, dormitory facilities are permitted as a special exception which may be granted by the Board of Zoning Appeals (the board) provided the following conditions are met:

"A. Where dormitory or sleep-in facilities are to be provided, there shall be a minimum area of at least two (2) acres for each fifty (50) or less number pupils.

"B. At least one (1) acre of said two (2) acres shall be provided and suitably designed and used solely for playground, play area or recreation area.

"C. One (1) off-street parking space shall be provided for each teacher or other member of any public, parochial or private school, university or rehabilitation center staff and one (1) additional space for each five (5) students. For auditoriums, gymnasiums, grandstands and other gathering places, one (1) off-street parking space shall be provided for each three (3) seats."

The building inspector denied the permit on the ground that the premises constitute a nonconforming use and are not a school and that the property lacks the requisite two acres for each 50 pupils, the mandated recreation area, and the required off-street parking. The shelter then applied to the board for approval of the dormitory proposal pursuant to section 60-144.1 of the ordinance, area variances from the requirements of that section, and a determination that its operation was a permitted school use.

At the ensuing hearing, proof was adduced that there had been some educational curriculum at the facility at least as early as 1965 but that most of the attending children were educated in the Mineola public schools. However, in 1975, as part of an operational change, the decision had been made to educate all residents in-house. To accomplish that end, the shelter engaged five teachers who taught courses in basic English, science, mathematics, social studies, consumer education, physical education, and woodshop. Textbooks were borrowed from the Mineola school system, report cards were issued four times a year, and the grades given by the shelter's educational staff apparently were accepted by the public schools in Nassau County. The school calendar was two days longer than that of the Mineola public schools, and formal instruction was given 30 hours per week. However, the facility was not licensed by the State Department of Education, although an application for approval was pending at the time of the hearing.

The board denied the application, finding that while the shelter was providing an educational program with well-qualified instructors, its primary purpose was that of a children's shelter and the educational function was merely incidental. The primary bases for this conclusion were the lack of Education Department accreditation, the failure of the 1975 amendments to the shelter's certificate of incorporation to include education as a corporate purpose, and, particularly, the fact the arrival and departure of children bore no relationship to the school calendar. In the board's view, the educational facilities fell "well below the standard necessary to constitute a school use within the meaning of the Code."

Despite these dispositive conclusions, the board considered the effect on public health, morals, safety and general welfare of the proposed construction, as well as whether variances of section 60-144.1 requirements should be granted on the facts presented. As to the former, it was determined from the testimony that the shelter's children caused a great deal of disruption in...