Sherman v. Frazier
| Decision Date | 29 January 1982 |
| Citation | 84 A.D.2d 401,446 N.Y.S.2d 372 |
| Parties | In the Matter of Harvey SHERMAN, et al., Respondents, v. Charles FRAZIER et al., Appellants; Joseph Roth, Intervenor. |
| Court | New York Supreme Court — Appellate Division |
Joseph F. Klein, Town Atty., Lindenhurst (Raymond F. Wolfram, North Babylon, of counsel), for appellants.
Abrams & Herman, P. C., Huntington (Norman S. Abrams, Huntington, of counsel), for respondents.
Before DAMIANI, J. P., and LAZER, COHALAN and BRACKEN, JJ.
The focus of this appeal is the Town of Babylon's legislative reaction to the burgeoning problem of illegal two-family houses. At issue is a judgment which (1) annulled a determination of the town's Two-Family Review Board granting the intervenor a special permit to convert his one-family home into a two, and (2) struck down the Local Law which created and empowered the review board to legalize past two-family house conversions and to authorize them in the future. Prominent in our dispositive reasoning is an obscure amendment to the Municipal Home Rule Law which--with a few specified exceptions--permits towns to supersede or amend the Town Law when enacting local laws.
Unauthorized conversions of one-family homes for two-family use have become an oft-discussed subject of public concern in recent years (see "Wide Appeal for 'Accessory Apartments' ", New York Times, Jan. 3, 1982, § 8, p. 6, col. 1; "Why so Many Families are Doubling Up", U. S. News & World Report, March 9, 1981, p. 53; "Make Your House a Money-Saver", 50 Plus, March 1981, p. 76; "Legal or Not, Single-Family Homes Adding Apartments", New York Times, June 3, 1979, § 8, p.1, col. 6; "2-Family Housing Called a Necessity by Priorities Panel", Newsday, April 9, 1978, p. 3, col. 1; "Illegal rentals, a major problem and a major part of the solution", Newsday, March 27, 1978, p. 6, col. 1). Illegal conversions are the consequence of decreasing availability of rental housing to the young and increasingly burdensome costs of one-family house maintenance for the not-so-young whose children have departed, leaving their parents with unused house space. This case reveals how rampant is the spread of such conversions in but a single Long Island town.
Illegal two-family conversions are not, of course, unique to Babylon, and several Long Island municipalities have enacted legislation in efforts to solve or alleviate the problem . The Long Beach solution, which provided for almost categoric legalization of premises converted up to a particular date, ultimately was accorded legal approbation by the Court of Appeals (see Ilasi v. City of Long Beach, 38 N.Y.2d 383, 379 N.Y.S.2d 831, 342 N.E.2d 594). Babylon has chosen a different and more selective response to its difficulties.
Babylon's problem is substantial. The town is largely populated by blue collar families; its average household income in 1979 was $17,050 and more than 40% of its homeowners are 50 years of age or older (see "Report on Illegal Two-Family Dwellings in the Town of Babylon", Town of Babylon Department of Planning and Development, Jan. 10, 1979, pp. 5, 9). The cited Planning Department study revealed that the 880 legal two-family homes in Babylon were accompanied by a much larger number of illegal ones, then estimated at 10 to 20% of the approximately 38,000 single-family houses in the unincorporated area of the town (Id., p. 4). Only one of Babylon's four residential zoning districts permits two-family homes and that zone is rather limited in area. It is apparent that the Babylon Town Board was not enamored of a vast law enforcement effort against the thousands of persons involved in ownership and occupancy of illegal dwellings as a solution for its troubles. The chosen method was a scheme for selective grants of temporary permits for two-family homes.
In enacting the requisite legislation, the town board did not amend the zoning ordinance to expand the availability and legality of two-family homes as permitted uses in the residential zones. Instead, it enacted Local Law No. 9 of 1979 entitled "Special Permit Law for Temporary Two-Family Dwellings." This statute created a Two-Family Review Board to consist of seven members empowered to conduct public hearings and determine special permit applications by those who own illegally converted two-family houses or intend to undertake such conversion. The special permit authorized by the Local Law grants the owner the right to use his single-family dwelling as a two-family house use for a two-year period, provided there is filed with the County Clerk's office a covenant declaring that the permit terminates upon the death of the owner or the transfer of the property. Upon expiration of the permit, the owner may apply for renewal.
Under the Local Law, special permits are available for premises which (1) are owner occupied; (2) contain a minimum of 500 square feet of habitable space per unit; (3) have two on-site parking spaces; and (4) have a single front entrance with any additional entrances at the side or rear. In deciding whether to exercise its discretion to issue a permit, the review board is required to consider the character of the area, property values, traffic congestion, safety and welfare, overcrowding of land, unreasonable proximity to churches, schools, theaters, recreational areas and places of public assembly and reasonable development of established uses in the area. These standards may easily be recognized as traditional special exception guidelines found in many zoning ordinances.
But superimposition of Local Law No. 9 upon Babylon's existing zoning scheme creates a curious anomaly. An owner cannot obtain a building permit to construct a two-family home in a one-family zone but he can convert an existing one-family home to a two, legalize an existing illegal conversion, or if the property is vacant, build a one-family house and convert it afterwards. Recognition of the last option as having the potential for widespread abuse led the town board (during the pendency of this litigation) to adopt a seven-year moratorium upon special permit applications for premises constructed after January 1, 1980 (see Local Laws, 1982, No. 1 of Town of Babylon).
The instant controversy results from the application of Joseph Roth for a special permit to convert his single-family home to two-family use. Although there was some opposition at the hearing on the ground that a traffic hazard would be created by cars leaving the Roth driveway and entering a three-road intersection, the review board approved the application and granted the permit. Unfortunately, it made no findings of fact.
In this article 78 proceeding, the petitioners (who are Roth's next door neighbors) argue that Local Law No. 9 violates section 267 of the Town Law because it delegates powers to the Two-Family Review Board instead of to the Zoning Board of Appeals and because it is not in accordance with a comprehensive plan (see Town Law, § 263). As to the determination itself, petitioners contend that the failure of the board to make findings of fact requires a remand. Babylon responds that it is not constrained by Town Law provisions because section 10 (subd. 1, par. cl. d, subcl. ) of the Municipal Home Rule Law (MHRL) has bestowed upon it the power to amend or supersede the Town Law. Special Term rejected the town's position and declared the Local Law to be invalid on the ground that article 16 of the Town Law does not authorize the creation of a two-family review board and the delegation of powers to it (see Matter of Sherman v. Frazier, 106 Misc.2d 129, 431 N.Y.S.2d 305). We conclude there should be a reversal.
Although an article 78 proceeding is not the proper vehicle by which to review legislative action (Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 407, 301 N.Y.S.2d 1, 248 N.E.2d 855), we will treat the declaratory portion of the petition as an action for a declaratory judgment (see, e.g., Matter of Kovarsky v. Housing & Dev. Admin. of City of N. Y., 31 N.Y.2d 184, 191-192, 335 N.Y.S.2d 383, 286 N.E.2d 882) and dispose of this proceeding on its merits.
It is not clear whether the far-reaching effects of the 1976 amendment to section 10 of the MHRL (see L.1976, ch. 365) were comprehended at the time of the enactment. Most of the comments found in the legislative bill jacket view the legislation as affecting the power to restructure town government. But, as this litigation indicates, the potential reach of the amendment is well beyond mere matters of structure. As it now stands, section 10 of the MHRL grants local law powers to towns as follows:
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