Paliotto v. Harwood

• Decision Date: 28 June 1961
• Citation: 217 N.Y.S.2d 864
• Parties: Angelo J. PALIOTTO v. Thomas J. HARWOOD, etc.
• Court: New York Supreme Court

Page 864

217 N.Y.S.2d 864

Angelo J. PALIOTTO v. Thomas J. HARWOOD, etc.

Supreme Court, Suffolk County.

June 28, 1961.

Angelo J. Paliotto, New York City, petitioner, in person.

George F. X. McInerney, Bay Shore, for respondents.

HENRY M. ZALESKI, Justice.

By this proceeding under Article 78 of the Civil Practice Act, petitioner is attempting to review certain action by the respondent Town Board denying his application for a change of zone. Respondents have moved to dismiss on the ground that the action under review, being legislative in character, is not reviewable in a proceeding of this type.

The application to the respondents recites as its purpose that 'the undersigned do hereby respectfully petition your Honorable Board for a change of zone from Business '1' to Business '3' * * *'. The change was required because of petitioner's desire 'to erect a gasoline service station' on his property.

By Article V of the Islip Town zoning ordinance a gasoline service station is permitted in a Business District, but is specifically excluded in Business 1 and Business 2 Districts (Art. V, 1, (2). In the Business 3 district a gasoline service station is allowed after a public hearing by the Town Board.

Petitioner's property is situated in the Business 1 District. Therefore, before petitioner could apply to the Town Board for permission to erect a gasoline station, it was necessary for him first to seek a change of zone from a district wherein such use was prohibited to one wherein it was allowed. Such application was made and denied. In his supporting affidavit, petitioner suggests that his application was for a special exception. However, that could not be so for there is no provision in the ordinance authorizing respondent to grant a special exception for a gasoline station on Business '1' property. The power to grant a special exception with respect to gasoline stations applies only to Business and Business 3 Districts. The Board, therefore, has no power except to act legislatively, that is, by amendment to the ordinance as it affected petitioner's property. Pelham Jewish Center v. Board of Trustees, etc., 9 Misc.2d 564, 170 N.Y.S.2d 136, affirmed 6 A.D.2d 710, 174 N.Y.S.2d 957.

When a Town Board, although essentially a legislative body, acts in an administrative capacity, its determinations are reviewable in an Article 78 proceeding. Shields v. Sahm, 14 Misc.2d 102, 177 N.Y.S.2d 230; Copp v. Mead, Sup., 194 N.Y.S.2d 144. Throughout the supporting papers, petitioner identifies his application as one 'for a change of zone * * * by amending the Revised Zoning Ordinance and Zoning Map No. 2 * * * for the sole purpose' of operating a gasoline station. The power of the Board to enact such an amendment is legislative. Nowhere in his papers does petitioner question that proposition. It is now beyond dispute that a legislative act may not be reviewed in an Article 78 proceeding. Paliotto v. Cohalan, 6 A.D.2d 886, 177 N.Y.S.2d 553, affirmed 8 N.Y.2d 1065, 207 N.Y.S.2d 281; Pelham Jewish Center v. Board of Trustees, etc., supra; Schachter v. Burns, 24 Misc.2d 60, 203 N.Y.S.2d 499; Firestone v. Town Board, etc., Sup., 134 N.Y.S.2d 882.

Petitioner urges that notwithstanding judicial authority, Town Law, § 267(7) expressly authorizes this proceeding. So far as applicable that Section reads: 'Any person * * * aggrieved by any decision of the board of appeals or any officer, department, board or bureau of [any] town' may petition the Court under Article 78. There is undoubtedly no question but that a town board is a 'board' within the Section (Tobin v. Waters, 6 Misc.2d 159, 166 N.Y.S.2d 165; Wallshein v. Burns, 14 Misc.2d 943, 178 N.Y.S.2d 780), but in the opinion of this Court the review provided applies only to decisions made in an administrative capacity. Petitioner has not called attention to any case wherein, over objection, a legislative act was reviewed under Article 78. In Diocese of Rochester v. Planning Board of Town of Brighton, 1 N.Y.2d 508, 154 N.Y.S.2d 849 the Town Board acted as a reviewing authority, not as a legislative body. Tobin v. Waters, 6 Misc.2d 159, 166 N.Y.S.2d 165 was a special exception matter. Wallshein v. Burns, 14 Misc.2d 943, 178 N.Y.S.2d 780 was...