Town of Preble v. Song Mountain, Inc.

• Decision Date: 24 March 1970
• Parties: TOWN OF PREBLE, Plaintiff v. SONG MOUNTAIN, INC., John Chapman, Chris Chapman and Gordon Scott, individuallyand as officers and agents of Song Mountain, Inc., Defendants.
• Court: New York Supreme Court

Page 1001

308 N.Y.S.2d 1001

62 Misc.2d 353

TOWN OF PREBLE, Plaintiff v. SONG MOUNTAIN, INC., John Chapman, Chris Chapman and Gordon Scott, individuallyand as officers and agents of Song Mountain, Inc., Defendants.

Supreme Court, Trial Term, Cortland County.

March 24, 1970.

Robert Y. Briggs, Homer (Leslie E. Briggs, Homer, of counsel), for plaintiff.

Folmer, Fenstermacher & Yesawich, Cortland (Theodore Fenstermacher, Cortland, of counsel), for defendants.

John T. Ryan, Jr., Cortland County Atty., for the County of Cortland, amicus curiae.

Eli Gingold, Onondaga County Atty. (Hugh C. Gregg II, Syracuse, of counsel), for the County of Onondaga, amicus curiae.

DAVID F. LEE, Jr., Justice.

The plaintiff Town of Preble seeks judgment in this action against the defendants "enjoining them from in any manner promoting or conducting any open air band concert, rock festival or similar event at the premises occupied by the defendant corporation or elsewhere in the Town of Preble * * *"

A motion for a preliminary injunction was brought on by an order to show cause at Special Term on February 25, 1970. A preliminary injunction was granted to the extent that defendants were enjoined "from advertising or selling tickets for any rock festival or other outdoor band concert to be held at or about their premises known as the Song Mountain Ski Center in the Town of Preble, Cortland county * * *"

The action came on for trial on March 4, and at that time plaintiff, by way of an order to show cause, moved for summary judgment. The court reserved decision on plaintiff's motion. A motion was then made on behalf of the individual defendants for the dismissal of the plaintiff's complaint as to them, and on that motion decision was reserved. The action was then tried before the court without a jury.

The plaintiff's complaint alleges that the defendant Song Mountain, Inc. owns and occupies land in the Town of Preble, and did own and occupy land in the Town prior to the enactment of a Zoning Ordinance which "became effective on the 7th day of July, 1966 and is still in full force and effect"; that the property, "located within a district designated by said ordinance and set forth on said map (Town of Preble Zoning Ordinance District Map) as an agricultural and residential district", has and is being used as a ski center, restaurant and for other recreational activities; that the use of the property "does not conform to any of the uses permitted by said ordinance to be conducted in an agricultural and residential district and is a 'non-conforming use' as defined in said Zoning Ordinance",; that, "upon information and belief", the defendants "intend to conduct one or more open-air band concerts commonly known as 'rock festivals' at said premises at which at least 30,000 persons are expected to attend within twelve hours", and alleges that the concerts or festivals "would constitute a menace to the public health, safety and welfare of the residents of the Town of Preble, would constitute an unlawful extension and enlargement of a non-conforming use of the premises occupied by the defendant corporation", and "would constitute both a public and a private nuisance and would otherwise violate federal, state and local laws and ordinances." The individual defendants are "officers, agents and employees of the defendant, Song Mountain, Inc. * * *"

The defendants' answer to the complaint alleges general denials and, as a separate defense:

"Upon information and belief, defendants allege that the pretended zoning ordinance referred to in plaintiff's complaint is inoperative and void, was not enacted in accordance with law and if enforced will abridge the privileges and immunities of these defendants, will deprive defendant Song Mountain, Inc. of its property without due process of law, will deny to defendants and their invitees the right of peaceable assembly, and will deny defendants the equal protection of the laws, all in violation of the Constitutions of the United States and of the State of New York."

There is submitted in support of the plaintiff's motion for summary judgment several of the affidavits that were submitted on the application for a preliminary injunction, as well as the moving affidavit of the Supervisor of the plaintiff Town of Preble, together with supporting affidavits of plaintiff's counsel and of Joyce G. Buggs, and the pleadings, including the defendants' answer to the complaint and the answering affidavit on the application for a preliminary injunction. The question for determination on the motion for summary judgment is whether, upon all the papers and proof submitted on that motion, the court should, as a matter of law, direct judgment in favor of any party. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented, and the motion should not be granted where the issue is "arguable". The pleadings and affidavits submitted on the motion for summary judgment show that there are triable issues of fact which may not be determined on the papers submitted; issues that may be determined only on the evidence, the testimony, the proof presented by the parties upon trial. The plaintiff's motion for summary judgment should be denied.

The motion made before trial for the dismissal of the plaintiff's complaint as to the three individual defendants, made orally, without notice nor upon an order to show cause, should be denied.

The questions for determination in this action are: 1. Whether the Zoning Ordinance of the Town of Preble "was enacted in accordance with law". Is it a valid ordinance? 2. If the Ordinance is a valid one, will the proposed open-air concert or festival "constitute an unlawful extension and enlargement of a non-conforming use of the premises occupied by the defendant corporation"? 3. If the Ordinance was properly enacted, and is a valid ordinance, does it "deprive defendant Song Mountain, Inc. of its property without due process of law", or "deny defendants the equal protection of the laws, all in violation of the Constitutions of the United States and of the State of New York"? 4. Does the proposed concert or festival constitute a nuisance?

The Ordinance in question here, and similar laws and regulations, must find their justification in some aspect of the police power, asserted for public welfare, as zoning ordinance restrictions on the use of private property are in derogation of the common-law right of the owner of realty to use his property as he pleases.

The Constitution of the State of New York, art. 9, sec. 2, subd. (c) (ii), par (10), empowers local governments, including town, to enact local laws relating to the "government, protection, order, conduct, safety, health and well-being of persons or property." The Municipal Home Rule Law section 10, subd. 1, par. (a), subpar. (11), (now subpar. (12)), authorized towns and other municipalities to adopt laws relating to the "protection, order, conduct, safety, health and well-being of persons or property" within the town. The enabling legislation by which the Legislature has delegated to the towns the power to enact zoning regulations is set forth in article 16 of the Town Law. The defendants assert that the Zoning Ordinance "is inoperative and void", and the burden of proof on the issue of the validity of the ordinance rests with the defendants; the burden of proof rests with the defendants to overcome the presumption that the Ordinance is valid.

Article 16 of the Town Law, in addition to including the enabling sections, comprehensively prescribes the procedure and substantive requirements for zoning property in a town, and provides in section 266 that the board may not pass a zoning ordinance until it first appoints a zoning commission which must hold hearings and make a preliminary report before the town board may act. The defendants argue: That no zoning commission was duly appointed; that no preliminary report was made; that no public hearing on a preliminary report was held; that no final report was filed with the Town Board by a zoning commission; that the purported zoning ordinance was not a part of a comprehensive plan, and was not properly published and posted, and that the purported zoning map is incomplete on its face and "inconsistent with the text of the purported zoning ordinance."

The Town Law section 271, authorizes but does not require the appointment of a planning board. Section 266 of the Town Law provides that a planning board may be appointed as the zoning commission. Though the terms "planning board" and "zoning commission" were frequently used interchangeably by witnesses when testifying upon the trial, there is satisfactory proof that a zoning commission was, indeed, appointed on January 4, 1966, by the Preble Town Board, and the court so finds.

The Zoning Commission met weekly and their meetings were open to the public. There was published in a newspaper on May 28, 1966, a notice of a public hearing to be held on June 9, 1966, by the Zoning Commission "for the purpose of presenting and reviewing the regulations of the proposed zoning ordinance and the various districts laid out on the proposed map as recommended by the Zoning Commission." The proof concerning publication of the notice was submitted by an affidavit of publication which was subscribed and sworn to on March 5, 1970, (Exhibit 6). There was no affidavit of publication before that date, and none was ever on file with nor made a part of the records kept by the Town Clerk. Whether a hearing was held on June 9, 1966, is uncertain as there was no record of such a meeting available and no witness could recall the meeting. However, there was testimony by one of plaintiff's witnesses that no report was submitted to the Town Board by the Zoning Commission until the night of July 7, 1966, the date the Ordinance was adopted; while there was other testimony, by the Town Clerk, that there was a special meeting...