44 Misc. 2d 203 | N.Y. Sup. Ct. | 1964
This proceeding, instituted pursuant to subdivision 7 of section 267 of the Town Law and CPLB (art. 78), raises questions (1) whether petitioners are persons aggrieved by th'e decision of the Board of Zoning and Appeals of which they complain, (2) whether the water tower permit issued to the Garden City Park Water District was properly issued under the Zoning Ordinance of the Town of North Hemp-stead. In a companion action petitioners sought an injunction restraining construction of the water tower in question. In affirming denial of a temporary injunction in that action the Appellate Division said: “ Individual property owners may not maintain a suit for an injunction to restrain an alleged violation of an ordinance, in the absence of a showing of special damage or injury occasioned thereby. Plaintiffs have not shown such special damage or injury. The water tank under construction is merely a replacement of a presently existing water tank of lesser capacity in exactly the same location.” (21 A D 2d 832.) Notwithstanding that decision the court cannot dispose of the issue of petitioners’ status without a hearing, for in this proceeding petitioners set forth in their reply facts apparently not presented in the injunction action; viz.— that the tank will be 300 feet closer to petitioners’ premises than the existing tank and substantially taller than the existing tank and will depreciate the value of petitioners’ property. Petitioners would, therefore, be granted a hearing concerning their status were it not for the court’s conclusion on the substantive issue.
Though the foregoing would dispose of the proceeding, the court notes that the matter comes on as a review of a Board of Zoning and Appeals decision denying an application to reverse the determination of the building official pursuant to which the permit was issued. Although questions of law in such a proceeding are for the court (Matter of Delpriore v. Ball, 281 App. Div. 214), yet “ ‘ where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited ’ (Board v. Hearst Publications, 322 U. S. 111, 131). The administrative determination is to be accepted by the courts ‘ if it has ‘' warrant in the record ” and a reasonable basis in law ’ (same citation.) ‘ The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body ’ (Rochester Tel. Corp. v. U. S., 307 U. S. 125, 146).” (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108; Red Hook Cold Stor. Co. v. Department of Labor of State of N. Y., 295 N. Y. 1, 9.)
The building official and the town rely in their answer upon section 118.2 of the ordinance which provides: “ Not withstanding [sic] any other provisions of this Ordinance, building, [sic], structures and premises necessary for use and occupancy by the Town or County of Nassau for public or municipal purposes are hereby permitted in any use district.” Petitioners contend that since the property in question is located in a Besidence C District, the water district was required to apply for a conditional use permit under section 6.21 of the ordinance which
The conclusion is likewise supported by the rule of construction. The water tower was expressly authorized by resolution of the Town Board adopted August 13, 1963, and the Town Law (§ 190; § 198, subd. 3) so interweave the town in the creation of the district and the exercise of its functions that the district, though a separate entity, is the creature of the town. The nature of the relationship is in fact recognized in sections 110 and 118 of the General Municipal Law both of which empower the town to act on behalf of the water district. What the building official was called upon to construe was the meaning of the phrase “ use and occupancy by the Town ” in section 118.2 of the ordinance. Against the background of the Town Board resolution and the relationship of town and district as evidenced by the statutes referred to, it must be held that there is a rational basis for the building official’s conclusion that use and occupancy by the water district is use and occupancy by the town.
Reason supports the conclusion as well. The Larchmont case (supra), makes clear that the Zoning Ordinance cannot exclude a structure erected for a governmental purpose. Section 118.2 of the ordinance is declaratory of this principle (but cf. Hewlett
Though not directly raised by the papers in this proceeding it should perhaps be noted that the Town Board Resolution of August 3,1963 declares construction of the tower to be “ in the public interest ” and this provides a rational basis for the building official’s conclusion that the tower is “necessary” within the meaning of section 118.2.
A short-form judgment has been entered dismissing the proceeding.