Presnell v. Leslie

• Decision Date: 03 July 1957
• Citation: 144 N.E.2d 381,165 N.Y.S.2d 488,3 N.Y.2d 384
• Parties: , 144 N.E.2d 381 In the Matter of Oscar PRESNELL, Appellant, v. Jean LESLIE, Chairman of the Board of Appeals et al., constituting the Board of Appeals of the Village of Westbury, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 488

165 N.Y.S.2d 488

3 N.Y.2d 384, 144 N.E.2d 381

In the Matter of Oscar PRESNELL, Appellant, v. Jean LESLIE, Chairman of the Board of Appeals et al.,

constituting the Board of Appeals of the Village

of Westbury, Respondents.

Court of Appeals of New York.

July 3, 1957.

Quayle B. Smith, admitted on motion pro hac vice, Washington, D. C., Louis H. Roth, Jamaica, and Paul M. Segal, Washington, D. C., for appellant.

Frederick E. Weinberg, New York City, and Donald M. Booxbaum, for respondents.

FROESSEL, Judge.

Petitioner is an amateur radio operator, duly licensed by the Federal Communications Commission to operate and maintain a station at his residence in Westbury, Long Island, which is located in a 'Residence A' zone of the village, the highest classification of zoning. For a period of seven years, petitioner operated his station using an antenna on a 10-foot wooden pole. He now seeks to replace it with a 44-foot steel tower.

Application for a permit to erect the tower was denied by the building inspector on the ground that 'it is neither an accessory building or use customary to a residential dwelling and the same does not belong in a residential zone'. On appeal to the Board of Appeals, petitioner claimed that such a tower 'is an accessory use with and customarily incidental to a private one-family house', and that he had the right to a permit therefor. At the board hearing, the Westbury Gardens Association and 20 residents of the village opposed the granting of the permit, while 5 persons, only 3 of whom were village residents favored the application. The evidence before the board is rather briefly presented to us by way of an 'Extract of the Minutes of the Hearing', and what appears to be only a summary of the testimony taken there. The text of a number of letters concerning the matter sent to the board was not included. There is no evidence in this record that an amateur radio station cannot be operated without a 44-foot steel tower for an antenna, and there is evidence, as already noted, that petitioner had been operating for seven years previously.

The board, after considering the matter for more than a month following the hearing, unanimously voted to affirm the ruling of the building inspector refusing the permit. In an affidavit submitted by its chairman in the present proceeding, she states that, in the view of the board, the proof at the hearing established that the structure would 'be an eyesore in an exclusively residential community occupied by private homes situated close to one another', that it would be 'a menace to the safety of children', and that it would have 'an adverse effect upon real estate value in the neighborhood'. No such structure as proposed has ever existed in the village.

In this proceeding to annul the determination of the board, and to compel the issuance of a permit, Special Term was of the opinion that the 'erection of this rotary beam antenna tower' was not 'an accessory or customarily incidental use of the premises'. The Appellate Division, in unanimously affirming the dismissal of the petition, stated that it did not find it necessary to pass upon the question as to whether the proposed tower is a permitted 'customarily incidental' accessory use 'for in no event has appellant shown a clear legal right to the relief demanded' (1 A.D.2d 955, 150 N.Y.S.2d 364); if the tower is not a permissible accessory use, the building permit was properly denied; if it be a permitted one, the tower must be considered an accessory building, and therefore limited in height by section 11 of article III of the Village of Westbury Amended Building Zone Ordinance of 1937 to 20 feet. Since we are of the view that the proposed tower is not an accessory use, and the ordinance when so construed and applied is constitutional, we do not reach the question as to whether restricting its height to 20 feet would be valid.

While we are all familiar with antennae used in conjunction with television receivers, and their appearance on rooftops is a part of the national scene, there is an unmistakable difference between the ordinary television antenna and the 44-foot-high structure petitioner seeks to construct in his back yard, which is more akin to a commercial broadcasting tower. It is clear that, in the conduct of a hobby, the scale of its operation may well carry it beyond what is customary or permissible. Thus one who builds a stable in which to keep show horses has not constructed an accessory building (Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 346, 113 N.E.2d 816). So, a simple workshop may be expanded beyond all reasonable bounds. Similarly, maintenance of a candy, tobacco and newspaper counter in an apartment house is not an accessory use of the premises (140 Riverside Drive v. Murdock, 276 App.Div. 550, 95 N.Y.S.2d 860).

In the present case, there was no sufficient showing that it was customary to have towers of the kind petitioner desired to erect in 'A' residential areas of a suburb. While we are informed that there are 146,000 licensed amateur radio operators in the United States, we are not told the number using antennae of the type petitioner seeks to erect, nor where amateur operators having such towers reside. In the absence of such evidence, and yet with due regard for the valuable services rendered by amateur radio operators, it cannot be said as a matter of law that the erection of a 44-foot steel tower in a compact residential area of a suburban community, where dwellings are restricted in height to 35 feet (Building Zone Ordinance, art. III, § 8), is a customarily incidental use of residential property, or one which might commonly be expected by neighboring property owners.

In failing to draw a distinction between ordinary television and radio antennae for reception on the one hand, and an elaborate tower constructed for the purpose of far-flung radio transmission and reception on the other, the courts in the cases cited by appellant merely considered the kind, but gave no consideration to the degree of use, in determining whether or not a given structure is customarily incidental to residential property in a highly classified zone. Moreover, in Village of St Louis Park v. Casey, 218 Minn. 394, 16 N.W.2d 459, 155 A.L.R. 1128, the action was for an injunction; Wright v. Vogt, 7 N.J. 1, 80 A.2d 108, involved an exception to a height restriction, and in Appeal of Lord, 368 Pa. 121, 81 A.2d 533, no one opposed the application, and the court conceded the question was a 'close' one.

Petitioner contends that the denial of the right to erect the tower constitutes a deprivation of property without due process of law in contravention of the New York State and Federal Constitutions. It is clear that if the construction and application of the ordinance deprived petitioner of the use of his property on some basis wholly unrelated to the police power of the State, the ordinance would be invalid (Nectow v. City of Cambridge, 277 U.S. 183, 187-188, 48 S.Ct. 447, 72 L.Ed. 842; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303; Concordia Collegiate Institute v. Miller, 301 N.Y. 189, 196, 93 N.E.2d 632, 636, 21 A.L.R.2d 544; Baddour v. City of Long Beach, 279 N.Y. 167, 174, 18 N.E.2d 18, 21, 124 A.L.R. 1003; 1 Rathkopf on Law of Zoning and Planning, ch. 8, pp. 141-145).

This is not such a case, however. There was some evidence before the board as to the tendency of children to climb on such towers, which in this case embodied a solid loop stepladder, and the board could have regarded petitioner's offer to fence in the tower as insufficient protection. Moreover, there was evidence as to the effect of the proposed tower on property values. There was also evidence before the board from which it could properly find that the proposed tower, 'constructed to withstand winds up to 85 miles per hour', and to sustain a 3/4-ton load, erected on a 6-foot triangular base, would be 'an eyesore in an exclusively residential community occupied by private homes situated close to one another', and would not be in conformity with the character of the neighborhood. While we have never supported a zoning ordinance which restricts the use of property for a purely aesthetic reason alone, we have stated that such considerations are not wholly without weight (Baddour v. City of Long Beach, supra; Dowsey v. Village of Kensington, 257 N.Y. 221, 230, 177 N.E. 427, 430, 86 A.L.R. 642; see Perlmutter v. Greene, 259 N.Y. 327, 332, 182 N.E. 5, 6, 81 A.L.R. 1543; 8 McQuillin on Municipal Corporations (3d ed.), §§ 25.30, 25.31).

It should also be noted in considering whether the ordinance constitutes a taking of property without due process that petitioner is not being deprived of any substantial part of the value of the premises involved. Nor is he here being totally prevented from carrying on his hobby, as was the case in People v. Miller, 304 N.Y. 105, 109, 106 N.E.2d 34, 36, where we quoted with approval the statement in Barkmann v. Town of Hempstead, 268 App.Div. 785, 49 N.Y.S.2d 262, affirmed 294 N.Y. 805, 62 N.E.2d 238, that "Depriving (defendant) of this pastime does not affect substantially (his) property rights * * * in the use of the premises, which are otherwise undisturbed and unimpaired." Thus, balancing the restriction as between the unlimited exercise of petitioner's hobby on the one hand and the public interest on the other, it has not been shown by any reasonable interpretation of the facts in this record that the ordinance is not justified under the police power of the State (Shepard v. Village of Skaneateles, 300 N.Y. 115, 118, 89 N.E.2d 619, 620); and even if the legislative classification for zoning purposes as construed by the board be 'fairly debatable', the legislative judgment must be allowed to control (Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303, supra; Rodgers v. Village of Tarrytown, 302...