South Woodbury Taxpayers Ass'n, Inc. v. American Institute of Physics, Inc.
| Decision Date | 07 May 1980 |
| Citation | 428 N.Y.S.2d 158,104 Misc.2d 254 |
| Parties | SOUTH WOODBURY TAXPAYERS ASSOCIATION, INC., Plaintiff, v. AMERICAN INSTITUTE OF PHYSICS, INC., Defendant. |
| Court | New York Supreme Court |
Windels, Marx, Davies & Ives, New York City, for defendant.
Is a building permit authorizing construction of an addition to a building used pursuant to a special exception from the zoning ordinance invalid where a second special exception has not been applied for or obtained and the original permit contained no restrictions on the extent of the use?
That is the issue raised on this motion for an injunction pendente lite, wherein plaintiff South Woodbury Taxpayers Association, Inc. ("Association") seeks to halt construction of a one-story 17,000 square foot addition to a building owned and occupied by the defendant American Institute of Physics, Inc. ("Institute"). In the underlying action the Association seeks a judgment permanently enjoining such construction and directing that the partially completed structure be demolished and the pre-existing landscaping restored.
The Institute's use of the premises, located in the B Residence District of the Town of Oyster Bay, commenced in 1977 when a special use permit was issued to it by the Town Board pursuant to section 222(p) of the Oyster Bay Code. That section provides in pertinent part as follows:
The ordinance contains minimum lot and yard area requirements and provides that in the "B residence district, the total building area shall not exceed twenty (20) per cent of the total lot area" (Section 230).
The required public hearing was held by the Town Board upon the Institute's application in 1977 and on April 12, 1977 a resolution was adopted granting a special exception from the ordinance permitting use of the premises as an office for the administration and coordination of the Institute's activities in pursuit of its stated purpose ("The advancement of and diffusion of knowledge of the science of physics and its application to human welfare"). Although the issue of a possible addition to the existing building was raised at the public hearing (and such a possibility was denied by the applicant), the Town Board imposed only one condition upon the use as follows:
"That there shall be absolutely no printing presses, no offset printing, nor printing of any kind or nature, permitted on the above described premises."
This condition was, by resolution adopted on May 3, 1977, clarified, but the substance remained the same. No other conditions were imposed. The Board's findings were that the use would be compatible with the general character of the area and would not endanger the health, safety or welfare of the community and would be in keeping with the purpose and intent of the zoning ordinance. The word "premises" was described in the resolution in a metes and bounds description of the ten (10) acre parcel of land upon which the office building was located.
In December 1979 the Institute applied to the Department of Building and Zoning of the Town of Oyster Bay for a permit to construct a 222.92 foot by 130 foot masonry addition to the existing building, and such a permit was issued on March 7, 1980. The site plan shows that the existing building has a floor area of 34,000 square feet, the addition a floor area of 24,000 square feet and that the total floor area will be 58,000 square feet more or less. At no
point is the addition, shown on the site plan, closer to a property line than the existing structure. Immediately after the permit issued, the Association wrote to the Department of Building and Zoning, protesting that the Institute was not an "eleemosynary" institution as required by the ordinance and that its use of the premises was thus a violation of the zoning ordinance. When no "stop-work" order issued as requested, the Association commenced this action against the Institute. Construction was commenced and continues unabated. This Court denied the temporary restraining order requested by the Association.
Before the merits of plaintiff's motion are reached, it is necessary to dispose of the Institute's contentions raised at the hearing and in its memorandum of law that the Association lacks standing to bring this action, that the Town Board and the Department of Building and Zoning are necessary parties and that plaintiff has an adequate remedy at law.
One who suffers special damages as the result of a violation of a zoning ordinance may obtain an injunction to prevent its continuance (Little Joseph v. Babylon, 41 N.Y.2d 738, 395 N.Y.S.2d 428, 363 N.E.2d 1163; Cord Meyer Devel. Co. v. Bell Bay Drugs, 20 N.Y.2d 211, 282 N.Y.S.2d 259, 229 N.E.2d 44) and this appears to be the rule even where, as here, the defendant has proceeded pursuant to a building permit and the permit is attacked for illegality (see e. g., Reichenbach v. Windward, 80 Misc.2d 1031, 364 N.Y.S.2d 283, affd. 48 A.D.2d 909, 372 N.Y.S.2d 985, app. dism. 38 N.Y.2d 912, 382 N.Y.S.2d 757, 346 N.E.2d 557). Thus, the fact that alternative remedies may have been available to the plaintiff does not bar this action (see Lesron Jr. v. Feinberg, 13 A.D.2d 90, 213 N.Y.S.2d 602; 3 Rathkopf, The Law of Zoning and Planning (4th ed.) at 56-4).
The special damage which must be shown to confer standing upon a private party seeking to enjoin a zoning violation is a depreciation in the value of real estate (Cord Meyer Devel. Co. v. Bell Bay Drugs, supra), a criterion similar to that which determines standing in an action for declaratory judgment or in an article 78 proceeding (Mtr. of Unitarian Univ. Ch. v. Shorten, 64 Misc.2d 1027, 316 N.Y.S.2d 837). In the instant case, individual members of the plaintiff have submitted affidavits or letters alleging negative effects upon their property values. The Association has made the necessary showing under the rule announced in Mtr. Douglaston Civic Assn. v. Galvin (36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317) that it is an appropriate representative of those whose rights it asserts: i. e., it is a not-for-profit corporation in which membership is open to everyone, organized for the purpose of protecting the members' property rights and its four hundred members are all taxpayers and owners of property in the immediate vicinity of the subject premises (see South Woodbury Taxpayers Association, Inc. v. Town of Oyster Bay, et al., Index No. 8121/79, Nassau County Supreme Court (Spatt, J.)). Accordingly, the Association's standing to bring this action is well-established.
The Association's attack upon the validity of the building permit, gleaned from the allegations in the complaint as explicated in a supplemental affidavit, appears to be that the special exception permit granted to the Institute in 1977 authorized use of the land and existing building and was not intended to authorize use of an additional structure. Thus, they argue, the building permit is invalid because it authorizes construction of an "office", a use not permitted by the ordinance. Such construction would be valid only if authorized as an additional special exception by the Town Board.
Where, as here, the power to pass upon applications for special exceptions is reserved to the legislative body, no standards need be established in the ordinance (Matter of Lemir Realty Corp. v. Larkin, 11 N.Y. 20, 226 N.Y.S.2d 374, 181 N.E.2d 407) and that body may consider the benefits However, the stated conditions must be sufficiently clear and definite so that the permittee and his neighbors are not left in doubt concerning the extent of the use permitted (Bernstein v. Bd. of Appeals, 60 Misc.2d 470, 302 N.Y.S.2d 141; Mtr. of Conmar Bldrs. v. Bd. of Appeals, 43 Misc.2d 577, 251 N.Y.S.2d 521; Matter of Pearson v. Shoemaker, 25 Misc.2d 591, 202 N.Y.S.2d 779). The Board may not incorporate by reference, as a condition, statements made by the applicant at the hearing (Appeal of Farrell v. DeSautels, Inc., 383 A.2d 619 (Vt.1978)) and a surprise condition as to which no proof has been...
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