Vitolo v. Chave

• Decision Date: 04 September 1970
• Parties: In the Matter of the Application of Elda VITOLO, Petitioner, Pursuant to Article 78 C.P.L.R., v. W. Kenneth CHAVE, Charles B. Gregory, William W. Seiffert, Armand A. Granito and Herbert Liebert, comprising the Board of Zoning Appeals of the Town of Hempstead and Carman Community Association, Inc., Respondents.
• Court: New York Supreme Court

Page 51

314 N.Y.S.2d 51

63 Misc.2d 971

In the Matter of the Application of Elda VITOLO, Petitioner Pursuant to Article 78 C.P.L.R., v. W. Kenneth CHAVE, Charles B. Gregory, William W. Seiffert Armand A. Granito and Herbert Liebert, comprising the Board of Zoning Appeals of the Town of Hempstead and Carman Community Association, Inc., Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Sept. 4, 1970.

Kaye & Scholly, Rockville Centre, for petitioner; Arthur A. Kaye, John M. Farrell, Jr., Rockville Centre, of counsel.

Howard E. Levitt, Town Atty., Hempstead, for Board of Zoning Appeals; Jeffrey L. Stadler, North Woodmere, of counsel.

von Oiste & Carter, Port Jefferson, for Carman Community Assn., Inc.

MEMORANDUM

BERNARD S. MEYER, Justice.

In this CPLR Article 78 proceeding petitioner seeks reversal of a decision of the respondent Board of Zoning Appeals which revoked a building permit for a restaurant granted to petitioner. In an earlier prohibition proceeding, petitioner sought to prevent the Board from hearing the appeal of respondent Carman Community Association, Inc. on the ground that its appeal was not timely. In denying the writ of prohibition, this court ruled that since timeliness of the appeal depended, under the rule of Matter of Pansa v. Damiano, 14 N.Y.2d 356, 251 N.Y.S.2d 665, 200 N.E.2d 563, and Matter of Highway Displays, Inc. v. Zoning Board of Appeals of the Town of Wappinger, 32 A.D.2d 668, 300 N.Y.S.2d 605, upon when appellants reasonable became chargeable with notice and whether there was undue delay or laches, it could not be said that the Board was without jurisdiction. The point that a civic association had no standing to appeal was not considered, though briefed, because not raised in the petition.

At basic issue in this proceeding is the question whether the use for which the permit was granted is a 'restaurant', which is a permitted use in the Business District within which petitioner's property is located, or a 'drive-in restaurant' which is permitted only as a special exception use after application to the Board. The Board ruled, after a hearing, that the appeal was timely, that the Association was aggrieved, and that the use was a drive-in restaurant, and revoked the permit. In this proceeding petitioner argues that it has expended or committed some $75,000 to the building and, therefore, has a vested right to complete it, that the use is a restaurant rather than a drive-in restaurant, that the Association is not aggrieved and the appeal not timely. A further point that one of the Board members who voted for the decision now in question was not present at the hearing was not briefed or argued and is deemed abandoned. The Association pleads three defenses: (1) the decision on the application for a writ of prohibition is Res judicata of its standing, (2) petitioner has not exhausted her administrative remedies since she has made no application for a special use permit, (3) petitioner misrepresented the nature of the operation to the Building Department. The decision of the Board is reversed and building permit #6902841 is reinstated, but insofar as the petition requests that the court direct the issuance of a certificate of occupancy it is denied as premature, the building being as yet unfinished.

Concluding as it does that the decision of the Board is erroneous as a matter of law on the questions of standing and of use, the court does not find it necessary to consider whether the Association's appeal was timely taken. The Association's defenses are overruled; the first, on the ground that absence of standing goes to the capacity of a party rather than the jurisdiction of the Board over the parties or the subject matter and, therefore, could not have been the basis for issuance of a writ of prohibition even if properly raised in the earlier proceeding; the second, because petitioner cannot be required to seek as a matter of grace that which she is entitled to as a matter of right and, therefore, is entitled to immediate review of the decision revoking her permit, see Dowsey v. Village of Kensington, 257 N.Y. 221, 231, 177 N.E. 427, 430; Matter of Adams Holding Corp. v. Van Rosendaal, 15 Misc.2d 498, 180 N.Y.S.2d 231; Cf. Matter of Calabrese v. Chave, 33 A.D.2d 689, 690, 306 N.Y.S.2d 361, 363; the third, for reasons hereafter stated.

On the remaining two points in issue the Board's decision is contrary to decisional law binding upon it and, on the question of use, is not supported by substantial evidence and is contrary to the Board's own earlier decision as well.

Standing to appeal is governed by Town Law § 267, subdivision 2, which provides that appeal to the Board from a determination made by an administrative official 'may be taken by any person aggrieved'. No case construing the words 'person aggrieved' as used in that subdivision has been found, but neither the Association nor the Board has suggested any reason, and none occurs to the court, why they should be construed any differently in that subdivision than they are in subdivision 7, which gives to 'Any person * * * aggrieved by any decision of the board of appeals * * *' the right of review in an Article 78 proceeding. That a civic association which does not own property (and the Hearing Minutes at page 2118 establish that Carman Community Association does not) is not a person aggrieved entitled to review under subdivision 7 is the flat holding of Matter of Manor Woods Association v. Randol, 29 A.D.2d 778, 287 N.Y.S.2d 734; Matter of Moore v. Burchell, 14 A.D.2d 572, 218 N.Y.S.2d 868, app. den. 10 N.Y.2d 709, 223 N.Y.S.2d 1026, 179 N.E.2d 716; Matter of Lido Beach Civic Association, Inc. v. Board of Zoning Appeals of the Town of Hempstead, 13 A.D.2d 1030, 217 N.Y.S.2d 364; Point Lookout Civic Association v. Town of Hempstead, 22 Misc.2d 757, 200 N.Y.S.2d 925, aff'd 12 A.D.2d 505, 207 N.Y.S.2d 121; aff'd 9 N.Y.2d 961, 217 N.Y.S.2d 227, 176 N.E.2d 203; Matter of Mueller v. Anderson, 60 Misc.2d 568, 303 N.Y.S.2d 143; Matter of Miller v. Village of East Hills, 41 Misc.2d 525, 245 N.Y.S.2d 718; Matter of Prop. Owners Assn. v. Bd. of Appeals, 2 Misc.2d 309, 123 N.Y.S.2d 716; see Bayport Civic Association v. Koehler, Sup., 138 N.Y.S.2d 524, n.o.r. Without mention of any of those authorities, the Board predicated its holding 'that the appeal herein was brought by a person aggrieved' on its finding that the Association 'is a membership corporation, which was merely a vehicle, acting on behalf of its resident property owner members. The Board heard the testimony of both Mr. Stein and Mr. Mummery, who are members and officers of the corporation, as well as nearby property owners. It is clear that they are aggrieved persons * * *. The Board finds that the persons here concerned are affected by the proposed land use and that the appeal has been brought by persons aggrieved. To rule otherwise would be to lay emphasis on form rather than substance.'

The egregiousness of the error is evident when one reflects that (1) it must have occurred to the courts that decided the cases cited in the preceding paragraph that each of the civic associations involved was also 'acting on behalf of its resident property owner members', yet each was held without standing, (2) Mr. Stein testified that he lived 'five or six blocks' away (Minutes, p. 2124) and Mr. Mummery testified that he lived 'As the crow flies * * * about six blocks' (Minutes, p. 2146) and that the record contains no evidence of any special damage to either of their properties, or to the property of Mr. Newill, a member of the association who testified he lived within 300 feet, see Marcus v. Village of Mamaroneck, 283 N.Y. 325, 333, 28 N.E.2d 856, 860; Matter of Haber v. Board of Estimates, 33 A.D.2d 571, 305 N.Y.S.2d 520; Matter of Moore v. Burchell, Supra, 14 A.D.2d 572, 218 N.Y.S.2d 868. Moreover, in light of the subtle distinction, in relation to property values, between a restaurant as a permitted use and a drive-in restaurant as a special exception use, the court cannot presume, and the Board should not have presumed, that there was such damage.

The foregoing is not to say that as a matter of policy the definition of persons aggrieved should not be broadened. That, however, is a matter for the Legislature rather than for the Board or this court, neither of which has the power to correct the Association's failure to have one or more of its members, who qualified as an aggrieved person and who had not already lost his right to appeal, join with it in taking the appeal.

If, however, it be assumed that the Association was a proper appellant, the Board's decision must nonetheless be reversed. Article 7, §§ X--1.0 and X--1.8 of the Building Zone Ordinance allow, in a Business District, a 'Restaurant other than a diner, lunch wagon, drive-in restaurant, drive-in luncheonette, drive-in lunch counter or drive-in refreshment stand', Article 12, Section Z--5.0(c)(10) authorizes as a special use when approved by the Board of Appeals a 'Store or shop for the sale of food, refreshments or other edibles or drinks, which provides or makes available any facility (including but not limited to parking or standing...