Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of Town of North Hempstead

• Decision Date: 28 April 1987
• Docket Number: SUN-BRITE
• Citation: 508 N.E.2d 130,515 N.Y.S.2d 418,69 N.Y.2d 406
• Parties: , 508 N.E.2d 130 In the Matter ofCAR WASH, INC., Appellant, v. BOARD OF ZONING AND APPEALS OF the TOWN OF NORTH HEMPSTEAD et al., Respondents. ALLEN AVIONICS, INC., et al., Appellants, v. UNIVERSAL BROADCASTING CORP. et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 418

515 N.Y.S.2d 418

69 N.Y.2d 406, 508 N.E.2d 130

In the Matter of SUN-BRITE CAR WASH, INC., Appellant,

v.

BOARD OF ZONING AND APPEALS OF the TOWN OF NORTH HEMPSTEAD

et al., Respondents.

ALLEN AVIONICS, INC., et al., Appellants, v. UNIVERSAL BROADCASTING CORP. et al., Respondents.

Court of Appeals of New York.

April 28, 1987.

A. Thomas Levin, Garden City, for appellant in the first above-entitled proceeding.

Robert F. Dolan, Town Atty., for respondents in the first above-entitled proceeding.

Edward T. Robinson, III and Stephen J. Lynch, Oyster Bay, for appellants in the second above-entitled action.

Patrick M. Murphy, Jr., Mineola, Matthew Feinberg, West Hempstead, and Carole E. Zdan, for respondents in the second above-entitled action.

OPINION OF THE COURT

KAYE, Judge.

A property holder in nearby proximity to premises that are the subject of a zoning determination may have standing to seek judicial review without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity. Where, however, petitioner's only substantiated objection is the threat of increased business competition--an interest not within the "zone of interest" protected by the zoning laws--even a close neighbor lacks standing to contest a zoning determination.

Sun-Brite Car Wash

In March 1984 respondents Gulf Oil Corp. and Fenley & Nichol Co. (Gulf) applied for a permit to erect a prefabricated metal automatic car wash on their property, which is used as a gas station--a nonconforming legal use. The automatic car wash was to replace a self-service car wash. The Building Department denied the application both because the proposed use was not permitted in the district and because the proposed structure did not comply with the building code, which prohibited unprotected metal structures in business and industrial zones. Gulf appealed the denial by applying to respondent Board of Zoning and Appeals for a use variance. The application was first forwarded to the Planning Commission, and after the plan was amended in accordance with its recommendations, the Board held a public hearing--consisting largely of evidence of competitive business losses that would result from the variance--and granted the variance.

Petitioner, Sun-Brite Car Wash--the long-term lessee of a car wash across the street from Gulf, also a nonconforming legal use--commenced this article 78 proceeding to annul the Board's determination. Supreme Court found, first, that Sun-Brite, as a lessee in the immediate vicinity of the affected property, was as a matter of law "aggrieved" within the meaning of Town Law § 267(7), and therefore had the requisite standing. Second, on the merits, the court vacated the Board's decision, holding that upon review of the administrative record applicants had failed to demonstrate that the property was unsuitable for permitted uses or could not yield a reasonable return. The Appellate Division reversed, 116 A.D.2d 724, 498 N.Y.S.2d 28, concluding that Sun-Brite lacked standing to bring this article 78 proceeding because its only substantiated objection to the variance was that it would result in competition. We granted leave to appeal and now affirm.

Allen Avionics

Defendant Universal Broadcasting purchased a portion of the subject property from defendant Incorporated Village of Mineola. The Village Board of Trustees approved the transaction, stipulating that the height of the radio tower Universal proposed to build would be limited to 250 feet, that the tower was permissible on the property--located in the Village's "M-1 Light Manufacturing Zone" ¹--and that the Village would issue a building permit. In August 1982, some two years after the purchase, Universal applied for a building permit, which was issued on October 5, 1983 following an engineer's report but without a public hearing. That very day the Village Board of Trustees temporarily suspended the permit pending investigation of the safety of the tower. After the Environmental Protection Agency and the Department of Health issued opinions that the operation of a radio tower presented no undue health risk, the permit was reissued. Plaintiffs--owners of properties adjacent to the parcel ²--thereafter commenced this action seeking to enjoin construction, maintenance and use of the tower, alleging that it was dangerous to public health or safety, and to plaintiffs' properties, and further that radiation emitted from the tower would interfere with Allen's business of manufacturing electric parts, and thus excluded from use in an M-1 district.

Following a trial on the merits, including extensive engineering testimony, Supreme Court held that the construction of a 250-foot radio tower was authorized by and conformed to the Mineola Village Code, and required no zoning change or public hearing. Alternatively, the court concluded that, even if the tower was not a permitted use, plaintiffs lacked standing to maintain the injunction action because they failed to establish that the tower threatened imminent injury to their property or business, or would cause a genuine change to the community, or would increase community hazards. The court termed the claim of possible collapse "highly speculative and unsupported by the evidence," adding that plaintiffs "completely failed to establish that their real and/or personal property will be jeopardized by the construction of the tower, or that their employees will be placed in serious peril, or that radiation emitted from the tower will interfere with its manufacturing business." The Appellate Division affirmed on the basis that plaintiffs lacked standing. 118 A.D.2d 527, 499 N.Y.S.2d 154. We granted leave to appeal and, in this appeal as well, affirm the Appellate Division order, but on a different rationale.

Discussion

Central to both appeals is the issue whether the petitioning parties have standing to assert their claims.

Zoning ordinances are a proper exercise of the police power because they are enacted to protect the health, safety and welfare of the community. In general, a person acquiring premises in a restricted zone may reasonably rely both on the promise the ordinance itself provides and on the fact that the municipality will enforce the ordinance, thereby protecting against diminution in the value of the property by nonpermitted uses. If the municipality fails to enforce its zoning laws, or acts arbitrarily or capriciously in varying the application of the ordinance, and a person is thereby aggrieved, it may seek relief in its own right. As in any other challenge to administrative action, a "petitioner need only show that the administrative action will in fact have a harmful effect on [it] and that the interest asserted is arguably within the zone of interest to be protected by the statute." (Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865; see also, Matter of Dental Socy. v. Carey, 61 N.Y.2d 330, 334, 474 N.Y.S.2d 262, 462 N.E.2d 362.)

Whether in the form of an article 78 proceeding for review of an administrative determination or an action for an injunction, challenges to zoning determinations may only be made by "aggrieved" persons (see, Town Law § 267[7]; Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 741, 395 N.Y.S.2d 428, 363 N.E.2d 1163; 3 Rathkopf, Zoning and Planning § 43.01). By the same token, an aggrieved person may have standing to seek judicial review even where a statute vests exclusive power to enjoin zoning violations in local authorities (see, e.g., Village Law § 7-714), because such a person pursues "more than a civic interest in law enforcement; he is vindicating a discrete, separate identifiable interest of his own" (Little Joseph Realty v. Town of Babylon, supra, at 742, 395 N.Y.S.2d 428, 363 N.E.2d 1163).

While the immediate parties to an administrative proceeding are aggrieved persons who may seek judicial review, it is less clear what other persons are aggrieved in a sense that entitles them to seek review. Aggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants (or respondents), or--put another way--that it has sustained special damage, different in kind and degree from the community generally (see, Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 5, 364 N.Y.S.2d 830, 324 N.E.2d 317; Cord Meyer Dev. Co. v. Bell Bay Drugs, 20 N.Y.2d 211, 282 N.Y.S.2d 259, 229 N.E.2d 44). Traditionally, this has meant that injury in fact must be pleaded and proved.

Standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules (see, Matter of Douglaston Civic Assn. v. Galvin, supra, 36 N.Y.2d at 6, 364 N.Y.S.2d 830, 324 N.E.2d 317). Because the welfare of the entire community is involved when enforcement of a zoning law is at stake there is much to be said for permitting judicial review at the request of any citizen, resident or taxpayer; this idea finds support in the provision for public notice of a hearing. But we also recognize that permitting everyone to seek review could work against the welfare of the community by proliferating litigation, especially at the instance of special interest groups, and by unduly delaying final dispositions (see, 4 Anderson, American Law of Zoning § 27.09 [3d ed.]; but see, Ayer, Primitive Law of Standing in Land Use Disputes: Some Notes From a Dark Continent, 55 Iowa L.Rev. 344, 360).

While something more than the interest of the public at large is required to entitle a person to seek judicial review--the petitioning party must have a legally cognizable interest that is or will be affected by the zoning determination--proof of special damage or in-fact injury is not required in every instance to establish...