Rockefeller v. Pynchon
| Decision Date | 27 November 1963 |
| Citation | 41 Misc.2d 1,244 N.Y.S.2d 978 |
| Parties | Application of Terese and James ROCKEFELLER, Petitioners, v. Thomas R. PYNCHON as Supervisor, Marjorie R. Post, Peter B. Allsopp, Louis A. Sisia, Edmund R. Ocker, Edward Poulos and Carl A. Grunewald, Constituting the Town Board of the Town of Oyster Bay, Respondents. |
| Court | New York Supreme Court |
Green & Willen, Mineola, for petitioners. Morton I. Willen, Mineola, of counsel.
Attilio E. Braune, Town Attorney, Oyster Bay, for respondents. Carmelo C. Tese, New York City, of counsel.
In this Article 78 proceeding, petitioners seek an order annulling a determination of the Town Board of Oyster Bay which denied petitioners' application for a special exception permit to use a portion of their real property for nursery school purposes.
It appears that petitioners own and reside in a single family dwelling on real property located in a Residence 'D' district in the Town of Oyster Bay. The immediate surrounding neighborhood is substantially developed by other single family residences. In July, 1962, petitioners applied for a special exception permit to conduct a nursery school in a portion of their residence and on May 21, 1963, after a public hearing, the Board adopted a resolution denying petitioners' application.
It is contended here that the Building Zone Ordinance is unconstitutional in that it discriminates against private, state-chartered, non-profit nursery schools (Equal Protection), and in that it contravenes the State Constitutional provisions imposing upon the State Legislature the duty to provide a system of free public education. It is further contended that the ordinance has been applied in an unconstitutional manner, and that in failing to grant the special exception permit the Board acted arbitrarily and capriciously.
The pertinent provisions of the Building Zone Ordinance of the Town of Oyster Bay provide:
'Section D-1. In 'D' Residence District, no building or premises shall be used and no building shall be hereafter erected or altered, unless otherwise provided for in this Ordinance, except for one or more of the following uses:
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'5. A regularly organized university, college, elementary or high school having a curriculum approved by the Board of Regents of the State of New York.
Assuming, without deciding, that the constitutionality of the ordinance is a matter properly presented for determination in this proceeding (cf. Diocese of Rochester v. Planning Board of Town of Brighton, 1 N.Y.2d 508, 520, 154 N.Y.S.2d 849, 856-857, 136 N.E.2d 827, 832-833; Town Law § 267; Hofstra College v. Wilmerding, 24 Misc.2d 248, 251, 204 N.Y.S.2d 476, 480), we find nothing which offends the Constitution in this ordinance. Under subdivision 5 of Section D-1 of Article VI above quoted, elementary schools, be they public or private, are permitted uses. Under subdivision 5a, however, nursery schools are permitted only as special exceptions. The ordinance therefore distinguishes between elementary and nursery schools, but we find nothing which contravenes the Constitution in such a classification. It is only when private schools are under a restriction which does not apply to public schools that unconstitutional discrimination is involved. Matter of Diocese of Rochester v. Planning Board of Town of Brighton (supra); Matter of Merrick Community Nursery School v. Young, 11 Misc.2d 576, 171 N.Y.S.2d 522; Brandeis School v. Village of Lawrence, 18 Misc.2d 550, 559, 560, 184 N.Y.S.2d 687, 695, 696, 697. As we read the ordinance, both public and private nursery schools are under equal restraint in that each must obtain a special exception permit in order to operate in the Residence 'D' zone. We are aware that Mr. Justice Meyer, in granting a temporary injunction in the case of Bethpage Nursery School v. Burns, N.Y.L.J., June 12, 1961, p. 20, col. 2, took a different view of this same ordinance. His construction of the ordinance was based upon an assumption that the unconditional authorization of an elementary school in subdivision 5 'apparently' included the operation of a public nursery school. There is nothing in the papers submitted in this proceeding which would lead to that conclusion, and we must, therefore, construe the ordinance as granting unconditional authorization for both public and private universities, colleges, high schools and elementary schools, and only conditional authorization for public and private nursery schools. By such a construction there is no discrimination involved.
The other constitutional argument falls of its own weight. There is no outright prohibition against the use of property for a nursery school here involved, but only a requirement that a special exception permit be first obtained. Thus the cases of Union Free School District No. 14 of Town of Hempstead, Nassau County v. Village of Hewlett Bay Park, 279 App.Div. 618, 107 N.Y.S.2d 858; Jewish Consumptives' Relief Society v. Town of Woodbury, 230 App.Div. 228, 243 N.Y.S. 686, aff'd 256 N.Y. 619, 177 N.E. 165, and Merrick Community Nursery School v. Young (supra), are inapplicable. In each of these cases the municipality had enacted an ordinance which totally and completely prohibited the use involved. In the Matter of Diocese of Rochester case, supra, 1 N.Y.2d at p. 526, 154 N.Y.S.2d at p....
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