Roginski v. Rose

• Decision Date: 03 October 1983
• Citation: 97 A.D.2d 417,467 N.Y.S.2d 252
• Parties: In the Matter of John ROGINSKI, Petitioner, v. Henry W. ROSE, Chairman, et al., etc., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 252

467 N.Y.S.2d 252

97 A.D.2d 417

In the Matter of John ROGINSKI, Petitioner, v. Henry W. ROSE, Chairman, et al., etc., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 3, 1983.

Cohn & Foley, Baldwin, N.Y. (William S. Cohn, Baldwin, of counsel), for petitioner.

W. Kenneth Chave, Jr., Town Atty., Hempstead (Denise Harvey Sher, Hempstead, of counsel), for respondents.

Before MOLLEN, P.J., and WEINSTEIN, BROWN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Hempstead, dated May 13, 1982, which, after a hearing, denied petitioner's application for a special exception permit to use his property for the precision machining of small parts.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

There was a rational basis for and substantial evidence in the record to support the determination of the Zoning Board of Appeals of the Town of Hempstead that the proposed use did not comply with the standards in the ordinance that govern the granting of special exception permits.

A special use permit may be granted only upon the prior approval of the board of appeals (see Town of Hempstead Building Zone Ordinance, art. 7, §§ X-1.0, X-1.14). Such approval is subject to a determination by the board of appeals:

"1. That the use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts; 2. That the use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent use districts; 3. That the safety, the health, the welfare, the comfort, the convenience or the order of the Town will not be adversely affected by the proposed use and its location; and 4. That the use will be in harmony with and promote the general purposes and intent of this ordinance" (Town of Hempstead Building Zone Ordinance, art 12, § Z-1.0, subd B, par [a] ).

Entitlement to a special exception permit is not a matter of right (Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 24, 226 N.Y.S.2d 374, 181 N.E.2d 407) and compliance with ordinance standards must be shown before a special exception permit can be granted (see Matter of Tandem Holding Corp. v. Board of Zoning Appeals of Town of Hempstead, 43 N.Y.2d 801, 802, 402 N.Y.S.2d 388, 373 N.E.2d 282; Matter of Cappadoro Land Dev. Corp. v. Amelkin, 78 A.D.2d 696, 432 N.Y.S.2d 513, app. dsmd. 54 N.Y.2d 833). In making such a determination, the ordinance requires that the board of appeals shall give consideration, inter alia, as to whether the use may give off obnoxious odors or cause disturbing emission of vibration or noise (see art. 12, § Z-1.0, subd B, pars [b], c/s 5, 6).

At the hearing, in addition to other testimony, nearby residents testified that disturbing odors and noises were being emitted from petitioner's premises. We cannot say that the board's determination, that petitioner's proposed use did not comply with the ordinance in view of the proximity of the use to residences and the emission of obnoxious odors, vibration and noise, is without a rational basis and is not supported by substantial evidence (see Matter of Ferman v. Board of Appeals, Inc. Vil. of Sea Cliff, 69 A.D.2d 882, 415 N.Y.S.2d 469).

MOLLEN, P.J., and BROWN and RUBIN, JJ., concur.

WEINSTEIN, Justice, dissents and votes to grant the petition to the extent of annulling the determination and remitting the matter to the board of zoning appeals for further proceedings, with the following memorandum:

Petitioner owns a parcel of land approximately 44 feet wide and 91 feet deep which is located within the Town of Hempstead in a strip zoned as a business district. The parcel, which is improved with a one story cinderblock and brick building, abuts a residential "B" district improved with one family dwellings. On or about November 12, 1981, petitioner applied to the Department of Buildings of the Town of Hempstead for a permit to use his premises for the precision machining of small parts. Said application was disapproved on the ground that the proposed use constituted a nonpermitted use within the meaning of section X-1.0 of article 7 of Town Building Ordinance. Pursuant to said section, the following uses are permitted as of right in the business zone:

"SEC. X-1.2. Club, Fraternity House or Lodge.

"SEC. X-1.3. (Repealed May 4, 1954).

"SEC. X-1.4. (a) Public School, parochial school, private school for instruction of elementary grades, academic grades or both, chartered by the Board of Regents of the State of New York, college, university.

"(b) Religious Use.

"(c) Philanthropic use, excluding a correctional institution.

"(d) Hospital, sanitarium, dormitory of an educational institution.

"(e) Music school or dancing school.

"SEC. X-1.5. Agriculture, Green House, Nursery, Municipal Recreational Use, Railway Passenger Station.

"SEC. X-1.6. Office, Bank, Financial Institution and Telephone Exchange.

"SEC. X-1.7. Store for the sale at retail of articles to be used or consumed off the premises, which is not subject to the provisions of Section X-1.14 hereof.

"SEC. X-1.8. Restaurant other than a diner, lunch wagon, drive-in restaurant, drive-in luncheonette, drive-in counter or drive-in refreshment stand.

"SEC. X-1.9. When approved as a special exception by the Town Board, public garage, minor garage, battery service station, tire service station or a combination thereof, motor vehicle repair shop whether or not operated in connection with new or used motor vehicle sales, boat repair shop, whether or not operated in connection with new or used boat sales, public utility buildings and structure. [eff. 8/4/75]

"SEC. X-1.10. Carpenter, Hand Cabinet-Making, Furniture Repair or Upholstery Shop, Electrical Shop, Hand Metal Working, Blacksmith, Tinsmith, New and Unused Plumbing, Pet Shop, Gas, Steam or Hot Water Fitting Shop.

"SEC. X-1.11. Hand Laundry, Custom Tailoring, Hand Dressmaking, Shoemaking and Repairing.

"SEC. X-1.12. Sale or repair of jewelry, watches, clocks, or optical goods, musical, professional or scientific instruments.

"SEC. X-1.13. Undertaking and embalming.

"SEC. X-1.14. SPECIAL USES: Special Uses when approved by the Board of Appeals pursuant to Article 12, Section Z-5.0."

Petitioner appealed the building department's negative determination to the zoning board of appeals on the ground that the requested use was one allowable under the provisions of section Z-5.0 (subd c, par 15) of article 12 of the ordinance which grants authority to respondents to approve a special exception for "[a]ny use of the same general character as any of the uses expressly permitted in a business district by this Ordinance". Petitioner contended, in essence, that the use requested is similar in nature to the occupations enumerated in the ordinance as "Hand Metal Working", "Blacksmith", "Tinsmith", and "Carpenter".

A public hearing was held before the appeals board on February 24, 1982. In a decision dated May 13, 1982, the board denied petitioner's application for the special exception permit, stating in pertinent part:

"The Board finds that the proposed operation is not a permitted use in a Business district. The Board finds that applicant is actually engaged in a manufacturing business, the creation and fabricating of multiple products out of sheet metal, be they metal containers, aircraft parts or otherwise. The Board finds that the proposed use is not of the same general character as a tinsmith, handmetal worker, carpenter or blacksmith, who did not have a multiple machine, production line as is the subject use. Furthermore, if we were to extend applicant's contention to his logical conclusion, any factory producing metal or wood products would be entitled to 'special exception' consideration. Thus an automobile assembly plant would not be a prohibited use in a Business district. This Board therefore finds the proposed use not permitted in a Business district. Since there has been no evidence of 'unnecessary hardship' the application must be Denied.

" * * * Although the Board has found that the proposed use is not entitled to 'special exception' consideration, the Board will nonetheless comment on the standards of the Ordinance as referrable to the use.

"The Board finds that North Jerusalem Rd. is zoned Business in the ribbon pattern and abuts a Res. 'B' district improved with one-family dwellings. In view of the proximity of the use to residences the consideration of obnoxious gases, odors, smoke and noise becomes of major importance.

"Applicant's witness testified that there is an odor, but that it is not objectionable. Despite that opinion, several witnesses felt differently. There was testimony of an awful odor and large amounts of smoke being emitted from applicant's chimney. There was also testimony of noise, low bellowing sounds, high pitched squeals and the sound of machines.

"This Board finds that the noises complained of are consistent with the machinery working with metal. Stone wheels are an abrasive and the sound of those wheels grinding metal will be loud and disturbing. Similarly the drilling and cutting of metal and the sanding machine can cause loud and disturbing noises as the witnesses testified.

"Also of interest is applicant's testimony that windows and doors are closed at all times, in the summer as well, that there is no need for air conditioning because the ceiling is insulated and there is leakage for air circulation. The Board finds it very difficult to believe that a sealed building depending on leakage can be a suitable work place. The Board finds that the structure has apparently been unable to contain the noise.

"The Board finds that it is very unlikely that the premises will be limited to one occupant for evermore. The Board finds...