43 Misc. 2d 616 | N.Y. Sup. Ct. | 1964
This is an article 78 proceeding to review, reverse and annul two decisions of the Board of Appeals of the Incorporated Village of North Hills made respectively on September 24,1962 and February 1, 1964. The 1962 decision granted to Roslyn Pines, Inc., a corporation owning property adjacent to the north and east boundry lines of the village, permission to construct and operate a nine-hole pitch and putt golf course as an increased use under an earlier variance; while the decision of February 1, 1964 denied an application by petitioners to revoke such use permit or to hold a rehearing thereon. The petitioners herein are homeowners residing on properties which are contiguous to the Roslyn Pines property; but the properties of the petitioners are located in the unincorporated area of the Town of North Hempstead and wholly outside the boundaries of the Incorporated Village of North Hills.
As to the decision made by the board on September 24, 1962, petitioners contend that it was illegal and constituted an unlawful taking of their property without due process of law because the board failed to give notice to the petitioners of the hearing which resulted in said decision. The petitioners assert that they were not aware of this decision until the Spring of 1963 when Roslyn Pines, Inc., began the construction of the golf course on its property. The decision of February 1, 1964 is attacked on the ground that the board erred in holding that it had no power either to revoke the increased use permit or to
In support of their position herein, the petitioners have urged that, regardless of the definition of “ aggrieved person ” under section 179-b of the Village Law as laid down by the courts, they have a right to maintain this proceeding and to attack the decisions of the Board of Appeals on the ground that section 179-b of the Village Law is unconstitutional. They contend that it has deprived the petitioners of their property without due process of law because it did not provide that the petitioners be given notice of the hearings which resulted in the 1962 decision complained of. It is abundantly clear on the facts herein that the mere failure of petitioners to receive a notice of hearing did not deprive them of the enjoyment of their property; nor did the decision of the Board of Appeals granting permission to Roslyn Pines, Inc., to use its property as a pitch and putt golf course constitute a taking of petitioners’ property, nor deprive them of its use and enjoyment. The essence of petitioners’ argument on this point of constitutionality is set forth in their counsel’s memorandum of law as follows: “The construc-
tion of this so-called ‘ pitch and putt ’ course will deprive petitioners of the enjoyment of their property”. On their own papers, petitioners acknowledge that they were not aware of any interference with the enjoyment and use of their property until actual construction of the golf course was begun by Roslyn Pines, Inc., in the Spring of 1963. Any claim, therefore, that the construction and operation of the golf course interferes with the use and enjoyment of petitioners’ property should be asserted, not against the Board of Appeals of the village, but against those whose acts in constructing the golf course motivated such claim. The petitioners, of course, have an appropriate remedy against Roslyn Pines, Inc., for any claims which