Taub v. Pirnie
| Decision Date | 03 July 1957 |
| Parties | , 144 N.E.2d 3 Freda H. TAUB et al., Appellants, v. Malcolm PIRNIE, Sr., et al., Constituting the Board of Appeals of the Incorporated Village of Scarsdale, Westchester County, et al., Respondents; and Heath-York Corporation, Intervenor-Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Seymour J. Wilner, Edward Garfield and Robert H. Wrubel, New York City, for appellants.
Richard A. Tilden, New York City, for respondents.
Harry G. Liese, Herman Goldman, and Abram F. Sackheim, New York City, for intervenor-respondent.
We are here concerned with the determination of the Board of Appeals of the Village of Scarsdale granting a variance permitting the residence portion of a much larger tract to be used as a parking lot in connection with a super market to be constructed on the adjacent business use portion. The property is, as the facts already told indicate, in a residence district on the edge of the district zoned for business.
In 1954, Heath-York Corporation, the intervenor herein, purchased the property involved; it covers 36,000 square feet, 10,000 square feet being located in the area zoned for residence and the balance of 26,000 square feet in the business district. The portion zoned for residence, fronting on Secor Road, consists of a narrow strip, almost triangular in shape, which has a maximum depth of about 75 feet.
To the east is the area zoned for residential uses, but on every other side are parcels put to purely business uses gasoline stations, public parking areas, a restaurant and retail shops, including a grocery and meat store, a tailor, a liquor shop, a laundry, a delicatessen and a bank. On its property, Heath-York proposes to construct a super market and in November of 1954 applied to Scarsdale's Board of Appeals for a variance which would allow it to use the parcel in the residence zone for part of the building and for an off-street parking lot. The village had earlier in the year modified its zoning ordinance so as to require a developer of any property for business use to provide for off-street parking.
The zoning ordinance authorized the Board of Appeals to 'Permit the extension of a use or structure into a more restricted district immediately adjacent thereto' subject to appropriate conditions and safeguards, when it determines, after public notice and hearing, that the variance may be granted in harmony with the general purposes and intent of the ordinance ( § 154, subd. (h)). A public hearing was held and full opportunity to be heard given to all who appeared. The petitioners, who are owners of nearby parcels, appeared in person and by counsel and presented their objections and arguments. No testimony was taken at the hearing, only speeches were delivered and argument heard, and Heath-York offered alternative site plans. After the public hearing, action was deferred for study by the board and, during that period, Heath-York filed a revised site plan showing a smaller building and a different parking space arrangement.
Decision was made, following full discussion, at an adjourned hearing on April 1, 1955, at which time the board made certain findings of facts and adopted by roll call vote a resolution granting the application in part, subject to conditions, and denying the balance of the application. In short, it authorized the use of the residence portion of the property solely for off-street parking purposes, subject to specific requirements as to paving and maintenance of the parking area and subject to the maintenance of planting and screening, of a type approved by the Village Planning Commission, on such portion as the commission might designate. The resolution expressly prohibited the use of any part of the residence property for any business structure and prohibited any entrance or exit from the parking area across such residence property.
The board consists of five members; three members constitute a quorum and a vote of a majority is required for the granting of a variance (Village Law, Consol.Laws, c. 64, § 179-b). On April 1, 1955, when the board granted the variance in this case, three members were present and the vote was unanimous. One of them, an attorney named Sherwood E. Silliman, had not been present at the public hearing. However, as a resident of the village for 25 years, a member of its Board of Appeals for some 12 years and a long-time village trustee, he was familiar with the neighborhood and its zoning problems; moreover, before voting at the meeting, he had 'thoroughly' discussed the arguments presented at the public hearing. On April 4, 1955, the board's term expired and on April 20, the new board formally approved the minutes of the April 1 meeting.
The petitioners, disagreeing with the board's determination and claiming that it acted 'illegally' and 'improperly,' brought this proceeding to review the decision. The case was transferred to the Appellate Division and that court referred the issues raised to an official referee. After taking extensive testimony, the referee reported, contrary to petitioners' allegations, that the board 'made * * * findings of fact * * * in connection with its determination' and that the minutes reporting the findings constituted 'a reasonably accurate transcript of the proceedings'. He further reported that, although absent from the public hearing and not having read the transcript of that hearing, board member Silliman had 'The transcript * * * available to him,' 'was familiar with the arguments made at the hearing' and 'discussed it thoroughly'. The court Nolan, P. J., dissenting on one issue, namely, the power of a board member to vote if not present at the public hearing affirmed the action of the board.
Although the petitioners argue many points, and we have considered them all, only that on which the Presiding Justice predicated his dissent deserves discussion.
Courts, we have said, will not "probe the mental processes" of the members of an administrative tribunal. Kilgus v. Board of Estimate of City of New York, 308 N.Y. 620, 628, 127 N.E.2d 705, 710; Weekes v. O'Connell, 304 N.Y. 259, 265, 107 N.E.2d 290, 292; see, also, Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 999, 82 L.Ed. 1129. Absent a showing, 'clearly reveal(ed),' that 'they made no independent appraisal and reached no independent conclusion' (Kilgus v. Board of Estimate of City of New York, supra, 308 N.Y. 620, 628, 127 N.E.2d 705, 710), we will not disturb the decision. As we wrote in the Weekes case, 'the extent to which independent study of the evidence in the...
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...107 N.M. at 286, 756 P.2d at 566 ("The presumption . . . is that the agency's decision was reasonable."); Taub v. Pirnie, 3 N.Y.2d 188, 165 N.Y.S.2d 1, 144 N.E.2d 3, 5 (1957) ("In the absence of a `clear' revelation that the administrative body `made no independent appraisal and reached no ......
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