North Shore Hebrew Academy v. Wegman

• Decision Date: 05 November 1984
• Citation: 481 N.Y.S.2d 142,105 A.D.2d 702
• Parties: In the Matter of NORTH SHORE HEBREW ACADEMY, Appellant, v. Leonard S. WEGMAN, as Mayor of the Village of Kings Point, et al., constituting the Board of Trustees of the Village of Kings Point, Respondents; Gary Gelman, et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 142

481 N.Y.S.2d 142

105 A.D.2d 702

In the Matter of NORTH SHORE HEBREW ACADEMY, Appellant, v. Leonard S. WEGMAN, as Mayor of the Village of Kings Point et al., constituting the Board of Trustees of the Village of Kings Point, Respondents Gary Gelman, et al., Intervenors-Respondents.

Supreme Court, Appellate Division,

Second Department.

Nov. 5, 1984.

Dennis Rapps, New York City (Irving Rotter, New York City, of counsel), for appellant.

Schiffmacher, Cullen, Farrell & Limmer, Great Neck (John M. Farrell, Jr., Great Neck, of counsel), for respondents.

Before GIBBONS, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Trustees of the Village of Kings Point, dated February 20, 1980, denying an application for an amendment of a special use permit to allow a private school to conduct a performing arts program on Sundays, petitioner appeals from a judgment of the Supreme Court, Nassau County, entered July 19, 1983, which, inter alia, dismissed the petition.

Judgment reversed, on the law, with costs, and petition granted to the extent of (1) annulling the determination and remitting the matter to the respondent board of trustees with the direction to grant the requested amendment to petitioner's special use permit under such reasonable conditions as will permit the operation of a Sunday performing arts program while mitigating its detrimental effects upon the surrounding community, and (2) declaring that section 231 (subd. 2) of the Building Zone Ordinance of the Village of Kings Point is unconstitutional to the extent indicted herein.

The North Shore Hebrew Academy (hereinafter the academy) is a Jewish day school, organized under the Religious Corporations Law, offering a program of secular and Judaic studies. In or about January, 1977, the academy applied to the Board of Trustees of the Village of Kings Point for a special use permit to operate a Hebrew day school for children in nursery through fourth grades, with classes to be held on Monday through Friday of each week between the hours of 8:30 A.M. and 3:30 P.M., in a building formerly used by the Board of Education of the Great Neck Union Free School District (hereinafter the Board of Education) for an elementary school. The school building, which the academy leased and subsequently purchased from the Board of Education, is situated in a Residence A-2 District, zoned for single-family detached dwellings on lots having a minimum area of 40,000 square feet. Access to the school is obtained by two-lane roads having no sidewalks and the nearest four-lane highway is approximately one mile away. Subdivision 2 of section 231 of the Building Zone Ordinance of the Village of Kings Point provides that public and private schools and houses of worship are permitted in residential districts only upon the granting of a special use permit by the board of trustees. The provision of the zoning ordinance, inter alia, authorizes the board of trustees to require educational and religious institutions seeking special use permits to locate in residential neighborhoods to meet certain minimum restrictions, including a minimum plot size, set-backs from the street and the boundaries of neighboring property, screening along the boundaries of neighboring property and "parking providing one parking space for every two persons in the total capacity of persons whom the premises are designed to legally and safely accommodate" (Building Zone Ordinance, § 231, subd. 2, par. f). On March 23, 1977, the board of trustees adopted a resolution granting the special exception permit sought by the academy, with the proviso that "shall be no expansion of existing physical facilities, and no change in grade levels or days and hours of operation except on further application to and approval by this Board".

In the fall of 1979, the academy began to conduct classes on Sundays in music, folk dancing and dramatics. The program was open to children who were not enrolled in the academy's weekday program, as well as to regular academy students. After officials from the village notified the academy that the Sunday classes violated the limitations on the hours and days of operation contained in the special use permit granted in March, 1977, the academy applied to the board of trustees for an amendment to the permit to allow it to operate a center for the performing arts on Sundays, between the hours of 10:00 A.M. and 1:30 P.M. The board of trustees held public hearings on the academy's application, at which representatives of the day school and residents of the surrounding neighborhood who opposed the center for the performing arts on Sundays testified.

On February 20, 1980, the board of trustees passed a resolution denying the academy's application for an amendment of its special use permit so as to allow it to operate a center for the performing arts on Sundays. The board of trustees concluded that "scheduling of such an activity on a Sunday, with its attendant noise and traffic, is an unwarranted interference with the peaceful use and enjoyment of the properties in the neighborhood" and that the on-site parking facilities maintained by the academy were grossly inadequate for the program.

The academy commenced the instant proceeding pursuant to CPLR article 78, inter alia, to annul the determination of the board of trustees denying its application to conduct a Sunday performing arts program and to declare subdivision 2 of section 231 of the zoning ordinance unconstitutional, both on its face and as applied by the board of trustees. Special Term confirmed the determination, concluding that the board of trustees rationally based its denial of the academy's application to operate the Sunday performing arts program on the lack of adequate on-site parking facilities, as required by section 231 (subd. 2, par. f) of the zoning ordinance. The judgment...