Village of Sands Point v. Sands Point Country Day SchoolVillage of Sands Point v. Sands Point Country Day School
By this аction, the Village of Sands Point, hereafter referred to as the “ Village ”, seeks to permanently enjoin the defendants from operating or conducting a school on their premises in said Village. A second cause of action to restrain defendants from operating a summer day camp has been withdrawn.
It is alleged by the Village that the operation of such school violates the zoning ordinances and regulations of the Village. It is conceded that defendants operated a school on the premises from July 1,1955, until August 25,1955, at which time the school operation was discontinued pending the outсome of this litigation.
It is conceded that defendants do not have any certificate of occupancy, but it is disputed as to whether or not defendants have applied for such certificate.
Defendants contend: (a) they have a vested right to operate a school on the premises which could not be affected by the ordinance amendment of May 18,1953, (b) that said amendment was not legally adopted, (c) the applicable zoning ordinances are unconstitutional under the State and Federal Constitutions and (d) the zoning ordinances are unconstitutional as applied to the particular premises.
The defendant, Marie L. Fetsch, became the rеcord owner of the instant premises in the year 1948. At that time, and continuously until an amendment to the zoning ordinance of April 19, 1954 the premises could have been lawfully used for private school purposes without restriction. Since April 19, 1954 the ordinance provides for a conditional use of the premises as a private school, subject to the approval of the Board of Appeals in aсcordance with detailed standards and guides.
Prior to June, 1955 the premises were not used for school use but were used generally for residential use. Therefore, for a change in use after May 18, 1953 a cеrtificate of occupancy was necessary if the amendment to the ordinance was validly adopted. This amendment provides: “ Sec. 504(c). No change shall be made in the use or type of оccupancy of any existing building or plot of land unless a certificate of occupancy shall have been issued by the building inspector.”
I find that prior to April, 1954 defendants did request from the Village a certificate of occupancy and that in or about the month of February, 1954 an inspection for that purpose was conducted by the inspector of buildings of the Village. I also find that no action was tаken by the Village on defendants’ application and that the permit was neither granted nor denied.
I cannot find in the ordinance, as submitted to me, any provision concerning mandatory action by the. Village where a certificate of occupancy is sought. "Where unreasonable delay is encountered, the applicant can, of course, resort to the courts to compel аction. There is no reason, however, why such burden and expense should be cast upon an applicant, especially in circumstances where the municipal body is purposely dilatory.
It is a well-recognized principle of law that where no time for action is specified, the law will imply a reasonable time. A reasonable time has certainly elapsed in this instance to entitle defendants to a certificate of occupancy upon the paymеnt of the $25 fee which I find they have duly tendered.
I should like to dispose of this phase of the action without considering the validity of the ordinance of May 18, 1953. In my opinion, the defendants have done everything reasonable to secure a certificate of occupancy, and they should not be required to continue to make requests for a certificate where their requests are ignored. The absence of the certificate, under the circumstances, should not afford the Village a basis for securing an injunction against these defendants.
Nevertheless, a remedy was available to the defendаnts of which they did not avail themselves by the way of a mandamus action to secure the certificate. Since, in my opinion, the ordinance was invalidly adopted, a determination on this point will comрletely dispose of any question concerning the certificate of occupancy.
The amendment, “ Sec. 504(c) ” has previously been set forth. It was adopted at a regular meeting of the Board of Trusteеs of the Village after a public hearing called for the purpose of amending the existing ordinance in relation to “ applications and permits and permit fees.”
Section 178 of the Village Law specifies the procedure to be followed in adopting zoning regulations. It requires a public hearing and that 15 days’ notice of the time and place of the hearing shall be published in a paper of general circulation in the Village. No form of the notice is specified. Since the Legislature does not require the performance of empty gestures, it must have intended to require the рublication of a notice which reasonably apprises the public of the essence of the regulations to be adopted. They, then, could appear at the hearing and present their views to the board either in favor of or in opposition to the regulation.
It is significant that the record fails to show that any member of the public attended the meeting of May 18, 1953. And yet, by the adoption of section “ 504 (c) ” and other related sections, a material right of the public residing or owning property in
Previous to May 18, 1953 article V of the ordinance labeled “ Aрplications and permits ” dealt solely with the erection of new buildings or the alteration of existing buildings. It contained no provisions relative to use of existing buildings.
I find, therefore, that the published notice which refеrred only to amending the ordinance in relation to ‘‘ application and permits and permit fees ” was not sufficiently reasonable to permit the adoption by the Board of Trustees on May 18, 1953 of said section “ 504 (c) ”. I, accordingly, hold said section is invalid and defendants are not required to comply therewith.
The effect of the amendment to the ordinance of April 19,1954 on the rights of defendants to operate a school must now be considered. It changed the defendants’ absolute right to conduct a school on the premises to a conditional right; defendants have not complied with its provisions.
It is my opinion, and I also find, that the defendants have established a vested right in themselves to conduct a school on the premises without compliance with the amendment of April 19, 1954.
I find from the evidence thаt since at least 1949 defendants Fetsch have manifested an intention, made known to the public by newspaper articles, brochures and other media, to use the premises for the conduct of a private school. They have since the purchase of the property, expended between $5,000 and $10,000 a year for the purpose of making the former estate suitable for the operation of a private school. During that time, they have paid taxes of about $3,000 a year. I do not believe that the circumstances of the defendants, Fetsch, permit them to indulge in such spending solely for residеntial purposes as is claimed by the Village.
The Village was given ample notice, prior to April 19,1954 of defendants’ intention to conduct a school on the premises as has been previously mentioned. The Village avoided action on defendants’ application for a certificate of occupancy, after a February inspection of the premises for that purpose, until аfter the April amendment.
I also believe that, in view, of the difficulties encountered by defendants in their dealings with the Village, they made
It is unnecessary for me to consider the question of the constitutionality of the amendment of April 19,1954. Thе application for an injunction is denied and the complaint dismissed, with costs to defendants.
The foregoing constitutes the decision of this court in accordance with the provisions of the Civil Practice Act.
Settle order.