Wiltwyck School for Boys, Inc. v. Hill

• Decision Date: 14 July 1961
• Citation: 14 A.D.2d 198,219 N.Y.S.2d 161
• Parties: In the Matter of WILTWYCK SCHOOL FOR BOYS, INC., Appellant, v. Theodore HILL, Jr., et al., Constituting the Zoning Board of Appeals of the Town of Yorktown, Respondents. In the Matter of WILTWYCK SCHOOL FOR BOYS, INC., Appellant, v. Lester A. PERRY, Building Inspector of the Town of Yorktown, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 161

219 N.Y.S.2d 161

14 A.D.2d 198

In the Matter of WILTWYCK SCHOOL FOR BOYS, INC., Appellant, v. Theodore HILL, Jr., et al., Constituting the Zoning Board of

Appeals of the Town of Yorktown, Respondents.

In the Matter of WILTWYCK SCHOOL FOR BOYS, INC., Appellant, v. Lester A. PERRY, Building Inspector of the Town of Yorktown,

Respondent.

Supreme Court, Appellate Division, Second Department.

July 14, 1961.

Harry G. Liese and Thomas A. Liese, New York City, for appellant.

Harold Riegelman, H. H. Nordlinger, Simon J. Hauser and Donald J. Rapson, New York City, for respondents.

Lowenstein, Pitcher, Hotchkiss, Amann & Parr, New York City (Henry G. Hotchkiss, New York City, of counsel), for Federation of Protestant Welfare Agencies, amicus curiae in support of appellant's position.

Shad Polier, New York City, for Citizens Committee for Children of N. Y., Inc., amicus curiae in support of appellant's position.

Louis L. Lefkowitz, Atty. Gen. (Paxton Blair and Ruth Kessler Toch, Albany, of counsel), for State of New York, amicus curiae in support of appellant's position.

Before NOLAN, P. J., and BELDOCK, KLEINFELD, CHRIST and BRENNAN, JJ.

PER CURIAM.

In a proceeding by petitioner Wiltwyck School for Boys, Inc., pursuant to statute (Town Law, § 267; Civil Practice Act, art. 78), to review and annul the determination of the respondents, the Zoning Board of Appeals of the Town of Yorktown, which affirmed the local building inspector's decision denying a building permit to petitioner whose land is in a residential zone in which schools are a permitted use, the petitioner appeals from an order of the Supreme Court, Westchester County, entered February 11, 1960, which affirmed the Zoning Board's determination, denied petitioner's application and dismissed the proceeding on the merits.

The grounds for the building inspector's denial of the permit were: (1) that petitioner's 'proposed school does not conform to, or meet the requirements and standards of, school uses permitted in residential areas' and (2) that the 'proposed use does not qualify or meet the standards and requirements of permitted charitable or eleemosynary institutions, as defined in the Zoning Ordinance'.

Petitioner appealed from the building inspector's decision to the Zoning Board on the sole ground that petitioner's proposed use was a school use within the meaning of the Zoning Ordinance. After a hearing the board affirmed the inspector's decision that petitioner's proposed use was not a school use under the ordinance.

Petitioner thereupon brought this article 78 proceeding against the board to review and to annul their determination on the ground that its proposed use is a school use and on the further ground that the ordinance, to the extent that it does 'bar an institution of the type maintained by petitioner,' is invalid and unconstitutional. This appeal is from the order dismissing that proceeding.

Petitioner also instituted another article 78 proceeding directly against the building inspector to compel him to issue the building permit, on the ground that the Zoning Ordinance as applied to petitioner is unconstitutional. The order dismissing that proceeding is the subject of the companion appeal (Matter of Wiltwyck School for Boys v. Perry).

Order affirmed, without costs.

We are of the opinion that the proof before the respondents was sufficient to sustain their finding that petitioner's primary purpose was the treatment and rehabilitation of delinquent or maladjusted boys, and that it therefore did not qualify as a school within the meaning and intent of the Zoning Ordinance. Respondents' determination as to the nature of petitioner's activities was not arbitrary or capricious, and their construction of the Zoning Ordinance was proper under its plain language. Under the circumstances, their determination may not be disturbed by this court (cf. People ex rel. Hudson-Harlem Valley Title & Mortgage Co. v. Walker, 282 N.Y. 400, 405, 26 N.E.2d 952, 954; Shoen v. Bowne, 273 App.Div. 1020, 79 N.Y.S.2d 292, affirmed 298 N.Y. 611, 81 N.E.2d 350; City of Buffalo v. Roadway Tr. Co., 303 N.Y. 453, 462, 104 N.E.2d 96, 99).

The fact that petitioner is subject to supervision by the State and the fact that the proposed site had been approved by a State agency, do not render respondents' determination either invalid or in violation of petitioner's constitutional rights (cf. Jewish Mental Health Soc. v. Village of Hastings, 268 N.Y. 458, 198 N.E. 30).

* * *

* * *

In a proceeding by petitioner, Wiltwyck School for Boys, Inc., against the building inspector of the Town of Yorktown, pursuant to article 78 of the Civil Practice Act, to compel him to issue a building permit to petitioner in 'disregard' of the Town Building Zone Ordinance, on the ground that, as applied to petitioner's property located in a residential zone in which schools are a permitted use, the ordinance is unconstitutional, the petitioner appeals from an order of the Supreme Court, Westchester County, entered April 28, 1960, after trial (24 Misc.2d 281, 199 N.Y.S.2d 909), which affirmed the building inspector's decision denying the permit, which declared that petitioner's proposed use of the buildings sought to be erected is not a permitted use under the Town Zoning Ordinance; and which declared valid and constitutional the Zoning Ordinance as interpreted by the building inspector and as applied to petitioner's proposed use of its property.

Order affirmed, without costs.

In our opinion, petitioner failed to sustain the burden of proving the invalidity of the ordinance and the amendments thereto (cf. Rodgers v. Village to Tarrytown, 302 N.Y. 115, 121, 96 N.E.2d 731, 733). On the contrary, the proof established that the ordinance as amended was a legitimate exercise of the police power of the town and that it promoted the general welfare of the community. Under such circumstances the determination of the local legislative body may not be disturbed by the courts (cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303; Rodgers v. Village of Tarrytown, supra; Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269, 189 N.Y.S.2d 212). We are also of the opinion that the ordinance does not violate petitioner's constitutional rights or conflict with State law or policy (cf. Jewish Mental Health Soc. v. Village of Hastings, 268 N.Y. 458, 198 N.E. 30; Wiltwyck School for Boys v. Hill, decided herewith).

NOLAN, P. J., and BELDOCK, CHRIST and BRENNAN, JJ., concur.

KLEINFELD, Justice (dissenting).

The building inspector of the Town of Yorktown has refused to issue a building permit to petitioner, Wiltwyck School for Boys, Inc. (hereafter called 'Wiltwyck' or 'W'), for the erection of six dormitory building upon its 113-acre tract of land in the town. These buildings are the first phase of a building program to provide complete new facilities for W.

The building inspector's action has been sustained by the local Zoning Board of Appeals, by the Special Term (Wiltwyck School For Boys v Perry, 24 Misc.2d 281, 199 N.Y.S.2d 909), and by the majority of this court on the ground that Wiltwyck's proposed use of the buildings will be primarily for 'the treatment and rehabilitation of delinquent or maladjusted boys, and that it therefore did not qualify as a school within the meaning and intent of the Zoning Ordinance' of the town.

Two basic questions are presented on these appeals: (1) whether W's proposed use will be primarily a school use as permitted by the Zoning Ordinance; and (2) if it be concluded that W's proposed use is not a school use but is primarily for the rehabilitation of delinquent, dependent or neglected boys, whether the latter use may be validly prohibited by the ordinance.

It is my opinion, based upon the established facts in the record, that both these questions must be resolved in W's favor as a matter of law.

It is undisputed that W's land is in a residence zone. It is also undisputed that in such a zone the ordinance permits: (a) 'public, elementary and high schools;' (b) 'private and parochial elementary and high schools in accordance with the provisions of Section 440.18;' (c) all 'customary accessory' school uses; and (d) charitable institutions 'in existence in the Town' prior to January 6, 1959 (Yorktown Zoning Ordinance, §§ 423, 440.18, 220). More specifically, the ordinance provides that:

(1) A private or parochial elementary or high school or a college or seminary 'shall be permitted,' provided 'that it is a school offering a comprehensive curriculum of study similar to that of a public school;' and 'customary accessory uses to schools or colleges' are expressly authorized (§ 440.181).

(2) An accessory use is one 'which is customarily incidental and subordinate to the principal use' of the land or building (§ 220).

(3) A private educational institution is: 'Any non-public school or other organization or institution conducting a regularly scheduled comprehensive curriculum of study similar to that of the public schools and operated by non-stock corporations under the Education Law of this State' (§ 220).

(4) Dormitories and single-family dwellings limited to the use of students, teachers and staff members, are expressly authorized and permitted as 'accessory buildings' to parochial and private schools (§ 440.185).

(5) Every use not specifically permitted in any zone is expressly prohibited (§ 423).

It is also undisputed that on January 6, 1959, after the town officials had learned of W's proposed purchase of the land and of its intention to use the land for its purposes, but before it had actually applied for the building permit, the town amended its Zoning Ordinance (§§ 423,220). By these two sections as amended, the town prohibited every charitable institution from using land for its purposes unless the land had been so used prior to the date of the amendment, namely, January 6, 1959. In other words,...