24 Misc. 2d 248 | N.Y. Sup. Ct. | 1960
Hofstra College owns a 50-acre parcel of land in the Village of Old Westhury on which is located a two-story residence which with some alteration will accommodate approximately 200 students. The district (Residence BB) in which the property is located is zoned for singie-family residences on two-acre parcels. The village zoning ordinance permits (§ 401, subd. [11]) a nonprofit college on a lot of not
The Old Westbury Civic Association and two neighboring property owners have intervened as respondents. Intervening respondents, by objection in point of law, question the sufficiency of paragraph 15 of the petition which alleges that the ordinance is unconstitutional insofar as it purports to authorize a board decision denying the application (a) because denial of the application does not promote the public health, safety, morals and general welfare, and (b) because by such authorization petitioner is discriminated against. In Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton (1 N Y 2d 508, 520) the Court of Appeals stated the general rule to be “ that an application for a permit or variance under a zoning-ordinance is primarily an appeal to the discretion of the board, which discretion is conferred upon it by the ordinance, and therefore by making- the application petitioner necessarily concedes, for the purpose of the application, the validity and constitutionality of the ordinance,” but left undetermined (with the parenthetical observance that “there may be merit” in it) the argument that the 1952 amendment (L. 1952, ch. 771) to subdivision 7 of section 267 of the Town Law directing that “ the court at special term shall itself dispose of the cause on the merits, determining- all questions which may be presented for determination” under the provisions of section 1296 of the Civil Practice Act, changed that general rule. The identical language was incorporated in section 179-b of the Village Law by chapter 329 of the Laws of 1956.
The question whether petitioner is discriminated against by the requirement that it obtain a use permit is not one that may properly “ be presented for determination ” in this proceeding since there is before the court no respondent who could be directed to issue a building permit were the court to conclude that the ordinance is discriminatory. This is not a proceeding-such as Matter of Concordia Collegiate Inst. v. Miller (301 N. Y. 189) in which, in reviewing- a Superintendent of Buildings’ refusal to issue a building permit, the court passed on the constitutionality of a zoning- ordinance amendment requiring* Board of Appeals’ approval of an educational use. Here only the board is before the court; any determination that the Constitution entirely precludes granting it authority to issue a use permit
The question whether denial of a use permit bears substantial relation to the health, safety, morals or general welfare of the community goes, however, to the propriety and validity of the board’s reasons for its determination. It is thus a question “presented for determination” and is, in fact, the question decided in the Diocese of Rochester case (supra). True, the opinion in that case considered the constitutionality of the board decision rather than of the ordinance, but this necessarily followed from the fact that the only standard set forth in the ordinance was identical in language with the constitutional requirement: “ of promoting the public health, safety, morals or general welfare ” (1 N Y 2d 508, 522). Where, as here, the ordinance sets forth specific standards pursuant to which the board purports to act, the propriety and validity of a board determination must be measured by (1) whether the board exceeded the authority granted to it by the ordinance, (2) whether the board so applied the ordinance as to infringe the Constitution, and (3) whether the standards established by the ordinance infringe the Constitution. Obviously, if all of the standards set up by the ordinance are invalid, or if the unconstitutionality of one part of the scheme of the ordinance renders the whole provision of no effect (see dissenting opinion in the Diocese of Rochester case, supra, p. 529), the board will be left without authority and the proceeding will have to be dismissed. Those possibilities should not proscribe consideration of the constitutionality of the standards to the extent pertinent to this case, however. Partial unconstitutionality presents no problem, because section 1600 of the ordinance specifically provides: “ If any section, paragraph, subdivision, clause or provision of this ordinance shall be adjudged invalid such adjudication shall apply only to the section, paragraph, subdivision, clause or provision so adjudged, and the rest of the ordinance shall remain valid and effective.” Nor should the possibility that all of the standards might be invalidated prevent consideration of the constitutionality of each standard separately.
The argument to the contrary is based upon the general rule quoted above. Yet, examination of the cases cited in support of that rule shows that one of them (Buck v. Kuykendall, 267 U. S. 307) held that the expression of willingness to comply Avith the Iuav evidenced by application for a common carrier permit did not estop applicant from attacking the constitution
If any standard applied by the board violates the Constitution a “ rule of law affecting the rights of the parties thereto has been violated to the prejudice of the petitioner” (Civ. Prac. Act, § 1296, subd. 5). In the light of that fact, of the 1956 amendment to section 179-b of the Village Law, of the separability provision of the Village of Old Westbury ordinance, and of the policy against multiplicity of actions, the court holds that paragraph 15(a) of the petition is sufficient and that it may consider the constitutionality of such standards in this proceeding.
We are thus brought to consideration of the reasons advanced by the board. Necessary to an analysis of the board’s reasons
‘ ‘ The Board of Appeals.
1 ‘ In addition to its powers and duties provided in the Laws of the State of New York, shall have the powers to the extent hereinafter set forth, after public notice and hearing, and subject to appropriate conditions and safeguards, to determine and vary the application of the regulations herein established in harmony with the purposes enumerated in the Village Law and the general purpose and intent of these regulations as follows:
“ 4. Authorize the issuance of a permit wherever it is provided in this ordinance that the authorization of such permit by the Board of Appeals is required.
# * *
“ 15. Permit a non-profit college or non-profit private school in any district, subject to the regulations as set forth in Section 1123 hereof.
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“ 23. The Board of Appeals may in appropriate cases provide that any permit granted under this section shall be temporary and shall be effective only for the period fixed by the Board and any application for renewal of such permit shall be acted upon in the same manner as an initial application.
“ 24. On all applications for permits under this section, the Board of Appeals, in addition to the requirements hereinabove set forth, shall give consideration to the health, safety, morals, convenience and general welfare of the Village and of its property owners and residents and shall act in harmony with the general purpose and intent of this ordinance and of the applicable provisions of the Village Law.
“ The determination of the Board of Appeals on all applications under this section shall be made in accordance with the comprehensive plan and design set forth in this ordinance with the purpose and intent set forth in the title, sub-title and preamble thereto, and in Section 177 of the Village Law, as it now exists or as the same may be hereafter amended.
‘ ‘ The Board shall not authorize the issuance of any permit under any of the provisions of this section unless it finds in
“ (a) will not create a hazard to health, safety, morals, or general welfare.
“ (b) will not be detrimental to the neighborhood or to the residents thereof.
“ (ti) will not alter the essential character of the neighborhood.
“ (d) will not otherwise be detrimental to public convenience and welfare.
‘1 Before authorizing the issuance of any permit under subdivisions 1, 4, 14, and 15 of this section, said Board in addition to the foregoing findings, shall find that the proposed use or the erection, alteration and maintenance of the proposed building or structure will not be feasible or practical in a less restricted district.
‘ ‘ In considering any application under subdivisions 1, 4, 14,17 and 18 of this section, said Board shall give consideration to the following:
“ (a) accessibility to the premises for fire and police protection.
“ (b) access of light and air to the premises and of adjoining properties.
“ (c) traffic problems, transportation requirements and facilities.
“ (d) hazards from fire, the size, type and kind of buildings and structures in the vicinity where the public is apt to gather in numbers, such as theatres, churches, hospitals, mortuaries, schools and the like.
1 ‘ Before authorizing the issuance of any permit under subdivisions 1, 4, 14, 17 and 18 of this section, said Board may require the applicant to submit in addition to the items required in Section 900 hereof, reports from the following:
“ (a) the Bureau of Fire Prevention, if any, as to fire hazard, if any.
“(b) the Chief of Police as to the traffic hazard, if any.
“(c) the Administrative official as to the type and design of the proposed building and structure.”
Subdivisions 1, 14, 17 and 18 which are not quoted cover extension of lesser use for up to 25 feet into adjoining more restricted district (subd. 1), public utility buildings or structures (subd. 14), gasoline stations (subd. 17), and public garages and auto
Petitioner’s application recited the need for expansion of its Hempstead campus, the acquisition of subject parcel in order ‘£ to add sufficient acreage to the parent institution to permit expanded educational services for the young adults of Long Island” (par. 7) and its immediate objective as “the establishment of a small experimental college . . . [which] will provide an accelerated curriculum ” (par. 8). The experimental college is to operate in units of 100 to 120 students with a faculty of six full-time fellows appointed for each unit, units to be added so that by 1964 there will be a maximum of 360 students and by 1969 a maximum of 600 students (par. 9). The premises are also to be used for adult education and executive training seminars and cultural activities (par. 10). Public hearings on the application were held on November 2, 4 and 11, 1959. At those hearings applicant presented the testimony of its president concerning the planned use, an architect concerning the height ■ of existing building and the layout of marginal roads, and a real estate broker who testified that establishment of the college would have no effect upon the values of real estate in the area. Objectors presented the testimony of a planning expert that the property could house upward of 5,000 students plus faculty and staff, resulting in a rush-hour peak of some 1,600 cars in addition to the present peak of approximately 300 vehicles during rush-hour, and of a real estate broker who testified that I. U. Willets Road, on which the property faces for some 1,275 feet, is the only access to the property, that the paved portion of that road is only 20 feet wide, and that properties adjacent to a college would be depreciated in value and the essential character of the neighborhood would be changed by the granting of the requested use. After almost six months’ deliberation, the board,
Petitioner argues that the first reason exceeds the board’s authority because the last two unnumbered paragraphs of section 1002 quoted above, which specifically refer to accessibility to the premises for fire and police protection and traffic problems, are applicable to subdivisions 1, 4, 14, 17 and 18, but not to subdivision 15. The board held that the application was made
Likewise unauthorized is the second reason upon which the board predicated its decision. The third unnumbered paragraph following subdivision 24 requires the board to find
The board’s third reason is both unauthorized and a non sequitur. That only 9 students resident in the village attend Hofstra’s Hempstead classes does not necessitate the conclusion that only a similarly small proportion will be part of the 120 to 600 students attending the experimental college. Further, what is in question is the existence of circumstances showing a sufficiently adverse effect on public health, safety, morals and welfare to warrant exclusion of the college from the particular location notwithstanding that schools “ are, in themselves, clearly in furtherance of the public morals and general welfare ’ ’ (Matter of Diocese of Rochester v. Planning Bd., supra, p. 526; Matter of Concordia Collegiate Inst. v. Miller, supra, p. 195) not whether sanction of the college use will in some positive way enhance the welfare of village residents. The provincialism implicit in the board’s reasoning furnishes no basis for exclusion of such socially valuable institutions as churches and schools.
"While prevention of overcrowding of land and avoidance of undue concentration of population are permissible zoning purposes under section 177 of the Village Law, and while the plan of the Village of Old Westbury, which is almost entirely zoned for one- and two-acre single family residences, is for low density, the board’s fourth reason may not stand. Not to be lost sight
The final reason advanced by the board is that petitioner had not sustained its burden of showing the elements set forth in the second unnumbered paragraph following subdivision 24 of section 1002. The Diocese of Rochester case (supra) establishes, however, the moral value of colleges and proscribes consideration of detriment to or change in character of the neighborhood or detriment to public convenience in passing on a college application. In considering such an application, the only standards set forth in the paragraph in question that may constitutionally be applied are that the proposed use will not create a hazard to health or safety or otherwise be detrimental to public welfare. A college performing atomic experiments on a scale sufficient to create a radiation danger, an aviation college intending to establish a flying field within its 50-acre parcel, or a college to be located on the edge of a residential zone adjoining an industrial use with a high fire potential (an oil refinery, e.g.) could, it may be assumed, be excluded from a residential zone, under the reservation set forth in the Diocese of Rochester opinion, because of the hazard to health or safety involved. Nothing remotely approaching those illustrations is here involved. Petitioner’s evidence shows a use of the premises for academic pursuits and that the building now on the property will accommodate 200 students. Of course, before the building can be put to college use a certificate of occupancy will have to be issued (ordinance, § 912) and before any additional buildings are erected building permits will have to be obtained. The court concludes that petitioner showed that the premises are suitable for college use and will not create a hazard to health, safety or general welfare.
The board’s contrary conclusion is predicated on its inspection of Hofstra’s present premises and its finding based on that view and on its expert’s testimony that a student body of 5,000
Subdivision 23 of section 1002 authorizes imposition of a time limitation on the granting of any special exception permit and subdivision 15, as amended December 14,1959, limits uses under such a permit to those set forth in a statement accompanying the application. As indicated above, the Hofstra application is subject to that amendment. The matter will, therefore, be remanded to the board with directions (1) to consider what if' any modifications of the height restrictions and marginal roadway requirements need be granted, and then to issue a use permit valid for at least 10 years, or (2) if the board so sees fit, to require that the college file the additional data required to bring its application within subdivision 15 of section 1002 of the ordinance, as amended, in which event the board should
The parenthetical references in this court’s decision in Gardner v. Le Boeuf (24 Misc 2d 511), decided July 14, 1960, are not to the contrary. That decision, without full consideration of the problem, made an assumption as the basis for its holding that whatever special exceptions the ordinance provided for were on the facts not available to plaintiff.