Rockland County Builders Ass'n, Inc. v. McAlevey

• Decision Date: 23 July 1971
• Citation: 37 A.D.2d 738,324 N.Y.S.2d 190
• Parties: ROCKLAND COUNTY BUILDERS ASSOCIATION, INC. et al., Appellants, v. John McALEVEY, Supervisor, et al., Councilmen and constituting the Town Boardof the Town of Ramapo et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 190

324 N.Y.S.2d 190

37 A.D.2d 738

ROCKLAND COUNTY BUILDERS ASSOCIATION, INC. et al., Appellants, v. John McALEVEY, Supervisor, et al., Councilmen and constituting the Town Boardof the Town of Ramapo et al., Respondents.

Supreme Court, Appellate Division, Second Department.

July 23, 1971.

David W. Silverman, Granik, Garson, Silverman & Nowicki, New City, for appellants.

Max Mason, Suffern, for respondents; Robert H. Freilich, Spring Valley, of counsel.

Before MARTUSCELLO, Acting P.J., and LATHAM, BRENNAN, SHAPIRO and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action to declare section 46--13.1, amending the Zoning Ordinance of the Town of Ramapo, illegal, unconstitutional and void, plaintiffs appeal from an order of the Supreme Court, Rockland County, entered November 19, 1970, which denied their motion for summary judgment and granted defendants' cross motion for summary judgment dismissing the complaint.

Order reversed, on the law, without costs; plaintiffs' motion for summary judgment granted; the subject ordinance is declared unconstitutional; and defendants' cross motion denied.

Plaintiffs brought the instant action after the Planning Board of the Town of Ramapo denied plaintiff Mildred Rhodes preliminary plat approval for her parcel of property on the ground she failed to obtain a special permit required under the challenged ordinance. The ordinance provided Inter alia that a 'residential developer' obtain a special permit from the Town Board prior to the issuance of any subdivision approval for a 'residential development use' by the Planning Board. (See Golden v. Planning Bd. of the Town of Ramapo, 37 A.D.2d 236, 324 N.Y.S.2d 178 (decided herewith), for details of the challenged ordinance.)

The threshold question is one of standing. Special Term concluded that plaintiffs' constitutional attack was premature because they had not applied to the Town Board for a special permit prior to seeking plat approval and that accordingly there was not the proper exhaustion of remedies, citing Old Farm Road v. Town of New Castle, 26 N.Y.2d 462, 311 N.Y.S.2d 500, 259 N.E.2d 920.

In our opinion, plaintiff Rhodes has standing to challenge the constitutionality of the Town's amended ordinance. Not only was Rhodes' preliminary subdivision plat denied, but any application to the Town Board for a special permit would, under the circumstances, have been futile. We cannot see any justification for compelling a plaintiff to go through the motions of applying for a special permit prior to the commencement of a constitutional attack on a zoning ordinance where, as here, the circumstances clearly indicate that such action would be futile. To hold otherwise would be blind adherence to the rule that one's administrative remedies must be exhausted before constitutional attack.

Old Farm Road v. Town of New Castle, 26 N.Y.2d 462, 311 N.Y.S.2d 500, 259 N.E.2d 920, Supra is distinguishable, as indicated in Justice Benjamin's dissenting memorandum in this case.

On reaching the merits we find that the aforementioned section of the challenged ordinance is unconstitutional on its face for the reasons set forth in Golden v. Planning Bd. of the Town of Ramapo, 37 A.D.2d 236, 324 N.Y.S.2d 178, Supra.

MARTUSCELLO, Acting P.J., and LATHAM and BRENNAN, JJ., concur.

SHAPIRO, J., dissents and votes to affirm the order, with the following memorandum:

If I were to reach the merits in this case I would concur in the views as to constitutionality expressed by Mr. Justice Munder in his dissenting opinion in Golden v. Planning Bd. of the Town of Ramapo, 37 A.D.2d 236, 324 N.Y.S.2d 178 (decided herewith) and by Mr. Justice Benjamin in his opinion in this case, but I feel that the order appealed from should be affirmed on the ground that none of the plaintiffs has any standing to maintain this lawsuit.

Since plaintiff Rockland County Builders Association, Inc. is not a property owner it is not a party aggrieved by the zoning amendment here in question and may therefore not subject it to attack (Point Lookout Civic Assn. v. Town of Hempstead, 12 A.D.2d 505, 207 N.Y.S.2d 121, affd. 9 N.Y.2d 961, 217 N.Y.S.2d 227, 176 N.E.2d 203).

The other two plaintiffs, Rhodes and Eldorado Development Corp., do own property in the Town of Ramapo, but they make no showing that any of the provisions of the zoning amendment materially affect them, for they cannot know whether the amendment will prohibit them from using their land for residential purposes unless they apply for the special permit provided for in the zoning amendment. It may be that their property is so situated as to have the necessary development points to permit the immediate--or reasonably immediate--use of their property for residential development. As the court said in People v. Calvar Corp., 286 N.Y. 419, 421, 36 N.E.2d 644, 645:

'There has been no such deprivation until there has been application for a permit and unreasonable refusal, and a statute does not violate the Constitution where it does not deprive an owner unreasonably of his property if the statute is properly administered in accordance with its terms.'

In Old Farm Road v. Town of New Castle, 26 N.Y.2d 462, 311 N.Y.S.2d 500, 259 N.E.2d 920, Special Term granted a motion to dismiss the plaintiff's complaint, which sought a declaratory judgment that a zoning ordinance which set up certain architectural standards was unconstitutional. That dismissal was affirmed by this court (28 A.D.2d 570, 282 N.Y.S.2d 449) and by the Court of Appeals. The Court of Appeals said (p. 465, 311 N.Y.S.2d p. 502, 259 N.E.2d p. 921):

'We conclude that the plaintiff should, indeed, be confined to its administrative remedy, in the first instance. Aesthetic considerations are not unlawful per se (People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, app. dismd. 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107); and unless and until a building permit for a specific structure shall have been denied, even the existence of any present damage cannot be demonstrated, so nebulous is plaintiff's claim thereof as it appears in the allegations of the amended complaint hereinbefore quoted. Additionally, in this particularly difficult area of regulation, a decision rendered prior to the denial of a building permit would have to be reached in a vacuum and without such help as we might obtain from knowledge of the board's practical construction of the ordinance and of the standards actually applied' (emphasis supplied).

It thus appears clear, at least to me, that in order to be in a position to raise the issue of constitutionality plaintiffs must be able to demonstrate that they have sustained damage or injury by reason of the inhibiting provisions of the statute which they attack. Here the two affected property owners, Rhodes and Eldorado Developing Corp., have not applied to the Town Board for...