139 A.D.2d 87 | N.Y. App. Div. | 1988
OPINION OF THE COURT
Arthur and Patricia Salvatore reside in a dwelling on a two-acre tract on Lowell Road in the City of Schenectady. Their property is situated within an area known as the General Electric Realty Plot which is designated as an "A-2 Historic Residential District” in the city’s zoning ordinance (City of Schenectady Code of Ordinances, art VIII, ch 264) (hereinafter Zoning Ordinance). The Salvatores began construction of a large above-ground swimming pool and deck at the rear of their house in the spring of 1986. However, construction was halted by order of the city’s Building Inspector on the ground that a building permit was required. The Salvatores promptly submitted an application for the permit, which was then referred to the city’s Historic District Commission, whose approval was required under section 264-43 of the Zoning Ordinance. On September 25, 1986, the Commission issued a certificate disapproving the application, but recommending that the Salvatores submit a design by a professional architect "compatible with the character of the G.E. Realty Plot and
The Salvatores appealed the Commission’s decision to the city’s Board of Zoning Appeals which, on December 16, 1986, upheld the decision and instructed them to resubmit an appropriate new design or dismantle the pool and deck within 30 days. Initially, the Salvatores commenced a CPLR article 78 proceeding to challenge the foregoing determination, but this proceeding was withdrawn and, on January 14, 1987, under covering letter from their attorney, they submitted an architect’s concept and design drawings to the Commission. A hearing on this submission was held by the Commission on February 2, 1987. On March 11, 1987, the Commission rendered a written decision approving the Salvatores’ application, but conditioned upon their incorporating certain additional construction and landscaping changes in the plans, the most onerous of which was the requirement that 38 arborvitae trees, eight feet in height, be planted around the pool and deck. This decision was appealed to the Board of Zoning Appeals which, after a hearing, again upheld the Commission’s decision. The Salvatores then commenced the instant action seeking a declaratory judgment that article VIII of the Zoning Ordinance is unconstitutionally vague, and the instant CPLR article 78 proceeding otherwise challenging the administrative determination which only conditionally approved their application. Supreme Court ruled adversely to the Salvatores and dismissed both the complaint and their petition in a single decision and order. This appeal ensued.
The rejection of the Salvatores’ constitutional challenge to the Zoning Ordinance should be affirmed. A municipality may validly impose historic district regulations designed to maintain the esthetic or cultural character of an area (see, Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 330, affd 438 US 104). A statute withstands an attack for vagueness if it contains sufficient standards to afford a reasonable degree of certainty so that a person of ordinary intelligence is not forced to guess at its meaning (see, Foss v City of Rochester, 65 NY2d 247, 253), and to safeguard against arbitrary enforcement (see, Wegman’s Food Mkts. v State of New York, 76 AD2d 95, 101). The Zoning Ordinance meets these requirements.
Most notably for the Salvatores’ application, the Zoning Ordinance’s standards and criteria provide that the Commission is to consider, inter alia, the "historic, cultural or archi
Based upon the foregoing criteria contained in the Zoning Ordinance, the Commission could rationally conclude that the proposed pool and deck, massive in size and distinctly contemporary in appearance, would be incompatible with the esthetic, cultural and historic character of the Salvatores’ property and surrounding area unless modified along the lines of the conditions the Commission imposed for approval. Moreover, the Commission reasonably interpreted the definition of "structure” in article II, section 264-2 of the Zoning Ordinance to include the installation of the pool and deck.. Therefore, Supreme Court correctly dismissed the Salvatores’ action for a declaratory judgment.
Despite the propriety of the Commission’s efforts to
The city attempts in two ways to circumvent the effect of the apparent untimeliness in the Commission’s action on the Salvatores’ application. First, it is argued that the Salvatores actually only submitted one formal application for a permit, which the Commission acted upon by its certificate of disapproval in September 1986, and that the time constraints in the Zoning Ordinance do not apply to any subsequent informal submission of revised plans. However, the Commission invited a resubmission in its initial certificate of disapproval and, in fact, entertained it and acted upon it. Therefore, the Salvatores’ January 14, 1987 submission of revised plans was either the final completion of their original application or constituted a new application by them which the Commission accepted and determined as such, regardless of the Salvatores’ noncompliance with the technical formalities required for such an application. In either case, the ordinance provides no basis for dispensing with the time deadline for the Commission’s approval or disapproval.
Alternatively, the city argues that the Commission actually
Mahoney, P. J., Casey, Weiss and Mercure, JJ., concur.
Judgment modified, on the law, without costs, by reversing so much thereof as dismissed petitioners’ CPLR article 78 application; determination annulled, petition granted and the Building Inspector of the City of Schenectady directed to process petitioners’ application for a building permit without regard to a certificate of approval from the city’s Historic District Commission; and, as so modified, affirmed.