HomeMy WebLinkAbout3990
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APPEALS BOARD MEMBERS -"'-\\fFI1Ct ~ SCOTI L. HARRIS
, ~", t) ~ Supervisor
Gerard P. Goehringer, Chairman ,,->\; - ~"
~~ {t" ~~
Charles Grigonis, Jr. :g ...<" t.~'-,~. ~ ''", Town Hall, 53095 Main Road
Serge Doyen, Jr. ',</.I I~""'~ ~,~ P.O. Box 1179
..,......-: :. } '", ~\"
James Dinizio, Jr. '-:, o. _.:~~...." ~N Southold, New York 11971
Robert A. Villa C:;f'tQ.j . . '1> i"'tf' Fax (516) 765-1823
Telephone (516) 765-1809 '~ ~ rf.- Telephone (516) 765-1800
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BOARD OF APPEALS
TOWN OF SOUTHOLD
August A8, 1991
Mr. James Kuzloski
Regional Traffic Engineer
Region 10 - NYS Office Building
Veterans Memorial Highway
Hauppauge, NY 11788
Re: County Road 48 in Southold, Town of Southold at
Intersection with Horton's Lane, North and South
Project of Michael Cholowsky - Miniature Golf Course, etc.
Dear Mr. Kuzloski:
Please find enclosed a Long Environmental Assessment Form,
copy of the site plan map, and the Town's Declaration under the
N.Y.S. Environmental Quality Review Act in the above project
requesting a Draft Environmental Impact Statement and addressing
seven areas (listed on the last page).
The project site is located less than 100 feet from a major
highway (County Road 48) which presently does not have
deceleration or accelerations lanes to or from Horton's Lane,
two heavily traveled town roads located to the north and south
of County Road 48.
Any suggestions or recommendations that you may have on
this project would be greatly appreciated. Should additional
information be needed in the interim, please call our assistant,
Linda Kowalski at (516) 765-1809.
Very truly yours,
Gerard P. Goehringer
Enclosures
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., EAD AGENCY :U::H4 73800.........::Town of SOUTHDLD, SUFFOU< County ~
t_ ~i ::;:::...;; :::::; ::: ::;j::: ::;.:?}.F~YP~~mr:~:::: i.:!}:':'~.H~~m::.:: :::::y:.)!::~+~W:?FW:::::::::::::;::::;:::::;; : :::: ;::;;!!:~~::~m/}w. ..
~ FFICE or BDARD:::Town Board of Appeals 'oO . I
,'!........................ ..:...... ..............................................................................................:.................Cl. ASS. . .
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'.n I HE : ,,"M i chi",e 1 CI~o 1 O,"sl< Y ............... ...j..................... ..............Tvpe 1. ............................ENCDN I NVOL VED : ...N........
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:'In:::....:::.:;;::.:.:::::::.::::;;:::;;::::::::... :::...':I--iear i ng Scheduled!::::::;;:;;:;;::::::: I I
'~TATUS:'O.::::::!:'.'!'.. '..:Chi~nged To Neg Dec........ I I ........... ......... ...........
"/....01< Withdrawn Vo i d..~...:.............~;....~.......F i na 1 E I S.......................................................... I I ............................:.::..........:
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IMPORTANT>> F~le N~mber:
P::L-473800-00::L05
I)se the ~bOV0 nllmber in 811
corr~spond?ncc ~~out this action!
To the Lead Agency:
The above information confirms that filings on the described
Positive Declaration were officially received by> and pntered in the
SEOR Repository on the dateCs) <;ho"m in the box headed DATE RECEIVED
above. The latest filing is indicated bY the most recent date in
that box. The date and time in the second line show when this
document was printed. Fl0ase check the information above carefullY.
For corrections or questions contact Charles Lockr0w, (518)457-2224,
or write to:
SEQR Repository
NYSDEC Division of Regulatory Affairs
50 Wolf Road, Room 514
Albany, NY 12233
Town of SDUTHOLD
Town Board of Appeals
53095 Main Road-P.O. Box 1179
Southold, NY 11971
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';';'!t'~;'" Page 18 - Jclnuary 11, 1991
".,:,~r,\.;(~ PublIc Hearing - Gregory FegoG
',' SoutholJ Z.B.A.
- CHAIRMAN GOEHRINGER: We thank you very much for driving all
the \"ay out here.
:1R FECDS: I thank you and Ilapologize again.
CHAIRMAN GOEHRINCER: No prob1'em. Good night. I make a ;0;
motion reservin'l my decision of rccc:::;:31ng it to tho ne~<t
regularly scheduled meeting and closing the hearing at thIs
point. I want to withdraw it. I muke a motion withdrawing
my first decision. I make a mati on closing this heuring and
reserving ~ecision until later.
1
All in favor - AYE.
"-;:';'-:
lIppl. No. 3990 , ',".' :'<ri:?~~~i;~:.
Appl1cant(s) : Cholowsky/C.Jsola
Location of I'rop(~rty: 3340 Ho,ton'" Lane, ::QutholJ ;. ._;"';,\'1<;"
C t T M ION 'O^OOC'9 .....~.,.
oun y .J.x.:tp O..J.. v -..J::) -.L - ';-~.;"'iii:"',i>r'-, -~
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! The Chairman opc,ned the hC~lrl!1g dl; C:40 p.m. and 'reud;,~~I'~:R<'
the notice of he.:lrin'1 a.rod .:Ipplication for the record. '!;';,,~t~.~Ji';
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CHAIRMAN GOEHRINGER: I have copy o~ the Gite plan produced-;tii!i,i;:,.~.
by Fairweather ,1n<:1 Brown "rc!li tectG Oesi'1ncrs from 122 Front ""i?Jj.;.~,,,'Jl<
st. Greenport, NY dat.cd lO/lS/90 indic.ltlng this particul.:iI: ,\;i..,~;:,.~;}
. site plan. Are there people in the audlcncc: \"ho would ll};e. ;<:~~:
'~""""'~' ~~ *
to see this site plan prlor to the dlGcussion of thiG ,o!,',~ '''i': ~;l:' :"
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hear 1 , ~.':".~ji~~ ~,,/' '~",\fo .j!;~~_
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: ask a question? Is that the map":;,:,"" '..
ThursdaY'G Suffolk TllC1'':S? ..;fH~1\~.) _ ,."
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I think it is. Of course it's.reduced':,::\,~" " . "oN
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GOEHRINCER: That'::; why I azked you 'are welcome to."';.,,;I\,,~::'.,.~)'t;'~IJ;'~;'~~"'
~~?f':', ..;}!~1'i"~1; I
I \"ould like to see it. ,...,,~..:i,~~;c.;,;!1!I
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CHAIRHAN GOEHRINGER: Sure. What w'~ will do here at this .. "i'~t~!iil"~$i~
,:~,-,"'."-',::. :~'-',<," ,
particular point then Is just allow .J.nybody that would like."'<.J:!~~;;i;;i7f!:
to take a look for a couple minutes. W11IJ would like to be,,;....,,~i<,!~;.;;.,~,:;, i
heard on behalf of the applicClnt? Mr. :1cLaughlin? ""1r,:~)~F,;;~r"'.\~(~~i
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HR MCLAUGHLIN: Thank you Hr. Chairm.:!~ and !1:mbers of the':~''';~.''f':~'';,;:'{';'~;:''tc';li
Board. I'm here on behalf of the appllcant Mlchael Cholows,~Y'.:Y)~;'i/ . .
'. 'a'leally what w. have hm 1. a~ app,o"~.~:.y :,"';;':'""11I'9'\ .',' ."
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Page 19' -' January!!, 1991 .'.C--
Public Hearing - CholowskylC~soIa
Southold Z.B.A.
parcel of property on Horton's Lane which i " alrnos t Jl.;:ectl}i
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across the street from existing Lucas 1"0",,1 facility Wl1at
the applicant proposes to do is erect ~ dr.i v In';:J rarlCjt.:;
miniature golf and related building and facilitles. Wh,'Jt we
arc here for this evening . 1 1. . t- ~ """',
IS a ver~' ~lml~~l. 1 S3U,c , .l d{
zoning code of this Town has a regulation 03.:3 far as th'
special exception use and the osricultur,)l cunSf~r\!dt Oi;
district which makes it a requirement that cU'Y typ'c or
facility like this must be opcrdtecJ .J.S a not,. for 'prof i t type
of business. I have 'submitted to this BOdrcJ .'} memorandum of
law and I think it's very c10ar in my mInd from my res0arch
that the courts of this state wIll not allow such d prO\riSl0n
to preva 11. It's the pruvincc' of :;::;onlng dnd pldnn.in'~r .
limit and control the use:.: to wilier" .:1 property " - i)'''; ; ,."
not the province of zoning or I..l1..,1.:lnir;q ,. dtterup I~ -1, "~
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who car: use the property .3nd ',if i,~l t !;L.:. :::; [Jr 0\' i :~; i or: of <,:hc
special exception ~1.s.e det.;:"; ~~ try !..::u =- ~ wi t :;;ldt
entity which can oper~tc thl:..:; ~~ i :1!~1 of .:Jl:~-, i nt,:2.~ . ...... >,~!"i';~
you have had a chance t 'J rev;_:_ ,,>1 I~I}' :i((~T(,Or,.lZ1du.rn .......:} ;~, ~la t
all the courts or the .ztate lnclu,] illlj Lhc hi9he,__ COili< """,-:~-,,:,)-"':it,~}{,
c t f All 1 1 'h f 1". - ~ '. , "i'-"':~~~'~T">
our 0 ppea s, l(1ve ru cc ,:j.(_t.~ JUC,'l :..lrnl-~J.t.j 11;:;.; aJ:'c:.".~',,,"*.:..,,{:i:~',';,:\;/,;~.r
.;;/i,~,,"',':'-;i'<,it~~;,i;.:.1,.i:-,;:
illegal nulllfy ba~lcll'" ~"',d.", ",' 3','. !...r., ." '. .....,.
oJ '- --.1.' '-' - '. II'.. 'J H ~ '~.i..'~ "'-' '.-, ':'\<I;~J-It""i'd.
evening is simply that vaX" L.1;l'CC. To dlloVJ U:;~' ~d, '-' ",,<l,rd . ':I>Jf~~<'1..
with an applicJtlon for ,:.1 ~pcci,-11 exception <.:H.d ;/ ..,J ,,-an -'-',\-~
approval f:;om the Plclnnln'J BOdrd.on be1:..<lf.nf u ..Jue1" ....n ~,;.ii,~:,
.. that ls..golngO'to be run as a bU:.ilnes.'-; profIt operat..)I' .~..,.""';
'." "'.;...,-....h . :'" ,.. .~ r' ..... _~ ""I:"'~11'
""'" CH~IR~,~~.,~,~:HrU~NGER. ,~_hL La,"... ""',cL,Ct., -~~, ,:~...'~~~!.I?~L
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.M1t,,,!CLAUGHLIN: That is correct. . Any 0 f t:he issues - ....>:, ?:.... "r...';-....
concerning the manner in which Ull:; operation shall b,' .. :'1':: . ,,,.;.,
conducted or how it shall be built and ~~rated Leal . ;~~. .
";.j..,... I-
think should m?rc'proper~y refl,"cte(l i." ~uturr' hearir ,:' _ ':~: :1_
regarding speclal exceptIon IJse clnd ,; :]l:;,' p:ar .jPPl'H""'~':':" ..
Thi~ ag....1in is a very limIted :3Sl1<.; tl.dt ',.if; a,re here btd.oreit:.~':~.,.
this Board tonight. We arc certai:1J y hal'py to d [sew,," !~he;;;i.: t
project, to answer any que~"jti()n~: tl1,:It: ,)jl_/ nilC (flay ba\;t~ In ., .,.
relation to the project and Hike Ch.o 1 OI,S I: Y ,'Hld hts father are
here and if there an.y quest ions we WCiuld be h.)ppy ,/,-,., Ct(irJ:te~js
",v
them. ....
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CHAIRMAN GOEHRINGER: Will there be ..Jny lighLi.nq on the
','
driving range?
.."
MR HCLAUGHLIN: Yes I believe that ~}h c,i-IP, on the 1 tc P d
The lighting that will be directed b.)s lc.) lly out\.Jdrc: f L ;)[:', t.h<'
tee arc.) to the landing area for the (lclf bC!ll~; .
^ - .~,...,\...., . ""a ~" ~<"',-" .,,~ .'-.-,-~,,",,"--." . ". .~.
CHAIRMAN GOEHRINGER: The only other question , have 1s the
,
issuc that you are~ctually looking for. I assume what you ,
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Page 20 - January 11, 1991;,.,...,
Public Hearing - Cho10wsky/Casola.,..t<;;;;,.
southold Z.B.A.;",:t;:1t<
are looking and correct me if i'm wrong, Mr. MCLaughlin, you -~~~J~~
are looking for ei ther relief from that number which is ,',,:~.:;;?,.;:;~
number 7C at 100-31 page 1041 which says "such use shall not ~,~11)~." ...
be conducted for profit as al business enterprise." " . ':t~qw;~. .
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'"r~}'t} .~~;t'* ;J.lf.
MR MCLAUGHLIN: I am looking for relief from that and>>;'Hl,:;8!t~
allowing us to if we can obtain future necessary approvals'i.:7,'~',.""
from this Board in the way of a special exception and from ":,"'~~;:~:<~
the Planning Board a site plan approval to be able to operat..e..,..,.'..'.....,...i..'.'h~I.....~'.,5'..'~.;~.3\'.'"
for business purpose. Not as a not- for -prof! t type Of..o'l~;~;;:g.:;'r~.'.~...-..,~;...,;.J~f';i
operation . . """':""$~;" . .':'."!
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CHAIRMAN GOEHRINGER: My only concern i;; th,]t I assume that '.\;'"..' .
we have pre-to):i ting golf courses Lind we :wve a pre-existing .".
miniature golf course and we uscd to hLive a pre-existing
driving range in the Town of Southold. If we were to relieve
this condition, or to vary it somcwh~t, this would cause a
precedent, so to speak, within the TO\ofn. That is my only
concern at this point. It could not only affect this
particular project but many other projects and that is my
" ultimate concern. I have heard of discussions of
construction of a 200 acre golf course in Laurel, which would
certainly not operate unless 'it was operated for profit.
. MR MCLAUGHLIN: Unless 1.t was a private club.
CHAIRMAN GOEHRINGER: Similar to North Fork Country Club.
have also heard discussions about Islands End being profit or
not-profit I really don't have that at this particular point
,and',it is probably pre-exists zoning anyway. That's my main'
concern at this point. Do you have anything you would like
to say in that area?
MR MCLAUGHLIN: Well I think obvl,ously every application "
to stand or fall on it's own merit. I suppose there is ~
-lcgitimi.lcy to your concern and people would certainly come I
back and point to this. If I'm denied the relief at this H
point obviously I think I have no alternative but to go'
forward and again I think the precedents that I have provided
to you in my memorandum of law would indicate that I will
ultimately prevail probably. If that were true if I had to
go that route and I uid prevail then that portion of that
zoning ordinance would then be gone throughout the Town. It '
would then not be limited with my application.
CHAIRMAN GOEHRINGER: I think what you had better let us do::,:"':, .
is recess thl:; hearing to the next regularly scheduled:".. . '" """;._' ..'~}
monthly meeting and In the interim we will discuss your :.<.':{>..i~~~">':~ I
memorandum of the law with out Town Attorney allu we will go/,;"":,,.,,'$'~'
from there. Now that is not meaning that we will have it In:;::'!.<rt.'!J};f.E.~
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,.4IJf~'11.'1~~\.,.,~.,.,!,~,..""<:d'{~~.,~,,.;\.;<.... ",",' ~;.-""..,. . ",..~ ~~~""~~ . $,'<',"'h","~~'f ,.''''-~ .
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Page 21 - ~January 11, 1991
Public Hearing - Cholow~ky/CJ501J
".', Southold Z.B.A.
the carll' part of February, it will be the on(: Li\ t :-;(:~ ,,::,-r:r:". ;
part of February.
MR MCLAUGHLIN: My only GOnG(!t:l ii:; Ul>:\t we do t:::y tG iWJ'l~
this along as expeditiously as poe~lGle GGcau~e u0V!OU '; '-10..' (~
do have other, assuming that we g0t b0yon(] thL ::;taqe" 'w~
have ~thcr hurdles to (Jverc:O(I\C ,::-lnd we would 1 1]" (~ r [ ;,IC; 1: <.
as quickly a3 po~siblG.
CHAIRMAN GOEHRINGER: Are your applicants contract 'J"enr2cc:,: nr
do they own the property?
MR MCLAUGHLIN: 'They ,:tre long tprm leasec w! t.h ,,-.+-' n
'.-e"'" ,
purchase.
CHAIRMAN GDEHRINGER: T dOf!'t p,]YlIL:ltl::ttl:l './d):1
c
honest wiLh you, continue th C," to any (jt"cat deq-l: ['(c:- wi ,,_i
want to do lz ju~;t discuss it \-J 1 tll 1.'J.. 'T'. ',. .,. !--j
'^.~c 1. ;) V.,; l i 1. \.'~ ' .,'-
have been very bU,31" Otl luutloD,_ ,:.1n(1 .]11 toLe re:,:" r.
not gotten chance to c1\:;cuc;c; t:"11 ~; with them. ,_I' u
out for the audience th," t it L5 the nature ot thl" Be ,j:{
when a person brings a hearing before our cJ.lend;~d' t :'[:! ',;if
hear the- C.:lse and We do .J.ppr(::c:i.Jtc everybody i:omins
I just want to PtC,ntion foy ttl(' Judicncc ay~in tile:: l y() dd
the perfect r i g1; t to "~pc'.J;':; tCJnltjhr ttk,t this L; ,l pre :w.lnary ,.'.'_i
meeting for that sol., ru~:;;;,o~',<:_' uf dt:dllng ",,1 t:L the: I ;::: ~:;,~:
not-for-profit as oppo:.~ed ~, Jr <) fIt l,V'hich exL3t:.:: in ~ .~ -=:d;~,
. '0 ",. ,,\~
MR JOHNSON: I live on Hor: l: 0;-1 t ~ L.]ne. It' :::.; (IIY i(nil C:.r":":; t,-, ;':d 1 ng -
.-.,,' ,the-, previ OU5 speaker, tl1i;.:; point uf law \vould aT 1 C,W , ~
build a fat rendering plant for ~ny partlcular bus .L n(':.:;~; he
decided to build. I'm I correct in lh,J t .
CHAIRMAN GDEHrtINGER: I don '-:-~ know b(~cau::::;c r h.:,:,<v!:: ~1 c,t
completely reviewed th(~ memorandum of law, Th,j :~ Is .J
~uec;tion however though. After we give the T~)h' l~ L t () n.ya 1
copy of this that you might ask the Town Attonl""{,
MR JOHNSON: If it 5cems so unusuo.lly wron,; to bc~ abl.e ",., do
th.'1t. "
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CHAIRHAN GDF.HRINGER: Thf:.re i::; rtO que:.; L I :)[1 t:h.-:J. t ',..;h:' :; j':
with the gentlemen who immcdi.ltely ~;it~ to my ft d ;-1>:1".
mention this gentlemen has been on thL, DOcJrd '3i'"
along with gentlemen that i:...; j!1::Jt ill tlw ho...r ';'\ < I
him uniquely, at a joint meoting with the nU.J.rd i Apr;;
from the Inc. Vill.'1ge of Grc:cnport iHld the Stit C CJ.Hh ,J ; w'
and we were dealing with a tr.'1ining session, " Cia Id tc ni,ij'j
"Ch~rles Grigonis tell me why wh.:1t bruulJhl zunln;j cu Lh,,; 'I\.HJC: :"!-{~h~~)'~71
of South old?" He told me that :.:.....:--.'",..;'!C. t
somebody waotc(: tc bu t J.d a .~ '/ ~<
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Page 22 - January 11, 1991
'. Public Hearing - Cholowsky/Casola
Southold Z.B.A.
sauerkraut factory in a residential di5trict. That is
basically, if that answered your question, fine.
HR JOHNSON: Thank you very pmch.
MR MCLfiUGHLIN: If I could just briefly respond to that.
appll"c<:ltion is not to allow us to do any kind of profit
bU5iness that we want to do there. My application is
simply to allow us to operate, in our particular instance,
the golf driving range and miniature golf for profit as
opposed not-for-profit. As far as the public would be
concerned, there would be ab30lutcly no difference between
the two operations. To walk upon the site you would see
absolutely no difference between a profit and a not-profit.
We are not proposing to do anything other then what is ,.'
allowable as a special exception in the AC District. We are ,.c',~f,."
merely asking that as opposed to having to form a not-for-s"
profit corporation and operate a business without making a::>'''';''
pro fit. That we wi 11 be able to do I t as a regular bus iness .... ._
corporation, partnership or individual ownership. '.!,~;:;;;;'::,:::
c'~~~:i~,;:'<l:Ai:::~~~'< ,
CHAIRMAN GOEHRINGER: Please ,understand that I am not.+:'i,t:
comparing your clients project to a sauerkraut factory or:~;i~;"~i~
anything of that nature because I am not,'A"A'p,~~,ti>'
.;j:~,';'::', :.; ;"':~";':":t~+~~;.;;,\
MR MCLAUGHLIN: I was basically responding to the que:;tion '!: ;';.:.::-,:yr:.,
and we are limited to what we could ever hope to be able to '/:,'!'.i\",,1f;'i;:/:'
. . . "i.~:;,~),."."i-~;;.'
do under a spec1al except10n to those uses that are allowable";<(~':'"'N,,,
-~,~~>-~.,,~,~:--:, '!":';,',
for special exceptions. ,,~~":',~i!,"it;i~~":fi
'i';':',;:;?{I~f~~:_ <:'~~:;~i~'~1;0(~M,:::'~:f.'f
WINTERS: ~ li ':'8 on Horton: Lane. I would like to add:rE)ss ''.,i~$iij~~!;;'~<F~
inst~ad of gOlng ln~O my feel1ng about whether or not a -:;;;Eh;:".i::'iYt.h~1."f!
dr i V1 ng range const 1 tutes a go If course and speak to the;,&?~j;l,::",,'ih1'1j;:'~;~:;;'::<i\
question brought up by counsel of. the applicant and due,;.t!~;U"./,?~,1'i0:":!1
respect to Lawyer McLaughlIn. The wordIng on thi3 I went '\~/{, -t~~':." .
-back to the zoning book and when you get into a AC District ",",f ");:1~;fiJ.,\",
it talks about preservution, It talks abuut rCf; idential ';i;.>~';i: ";,'(i:2~;;;
development with u minimum of two acres. It tulks about ',,q,,;nY, '''''';':';''
certain exception:;, 'muybe a two family horne, possibly a ,)~~'}i;,: ::.'i,"... ,"''''
nursery, a church, things like that. A golf driving range _L'.''-''"''':
seems i1 far cry, to me, from being an~thing with any ~i!1u of, 3,%,>A~k
agricultural or conservation orientat1on. It's a bus1ness, ';;"~',,;,:,;('~, i
pure und :;imple and it belongs in the business district, not '- ",>2',':"
,in a residential dbtrict which AC is. In fact hC is'<"
probably more restricted in terms of re3identiul zoning then " .",'/','::
is a pure RE. Because it addresses the wide open ranges and <-',:.M-;::f~~,,};;;';1
the preservation of the flavor of the Town. The agricultural ;':',-'~ tF i
flavor of the Town. In any event, getting down to the '.::"'X',, ,<}.""f;~""_:~ i
possible exception uses, one of them refers to and I'm going " J&~~~ l
to read if I may, beuch clubs, tennis clubs, country clubs,'~~ '::,~~.if!ij,r!!-i~~~If.iJ,'
- ." , _ .. , A~' 'A'- ~'J1' .'l,;;,..\t~."" "",I,<'Y;,:,j~
, I .. .~. ~. ,'~... ......~7' . .. .;."'1';"'''1'. '"<'f-';"A:.~ ..N......;,~r~ .. ~.;,+
. -!. " . ,- . 0, ' d~,. " > , ~" f!:i.' 'I':' '.. 'tif.!" ~....~ vt:. 'r ,.'Hi' I
-':-" :_' . c-'....,'~" '~.' . ,,' ,~' :.,"", ",y,::',_.... '" . :. '"t-~> ."~Jii.:-i[:f...$1!.. -,:-_.,~ '":"?~;~,",~- ;t;Wf.~~'~'. ~}j:rI~';..l''''J
~,.',~" _,~.-.,...'..'. " I_ " . "~,~..-,,,~j.7(.;,. '):.~....~" \- '. _. . ~.~-Y'y. ,ft!-j-:'" ..-.">i;t-,,,,!'-" ~......iI ...~ ___.w.~ , ~~. _ ,
'. ~","',"""'."_ ~" ..... ,P'", , ... ~T.. 1 ~ ' ...,-. ~ 'u ," , , ,
"-"'f':i'+1jf.!.~~',..,.:..,..:.~.r. ...../]"'- \ ~... ~ ".-..~/.-" ~'-"'~Y"6'---;f:-"""--:';,y,1. ~~~ <~'1" ""'","'..... \J .>'.~.,.~" -'i' ,'"<.~.\:I,,/ ~""'.":L-., .~~lI4 ~ ~~~ ~:t:;# I, I
,~~~if;~~~.~'ii;;ii.~~?~;~.~~;~~:r;~~1~:~:~Kj,j;~1;~;j~;i~~~}r~~ }\~J!\.",i~:~ij;" ,c,~~'~~ 1
. , . , c (
PC\']e 23 - January 11, 1991
Public Hearing - Cholowsky/Casola
t....-,
Southold Z .D.l\..
golf clubs, public golf courses, I presume th,:1"t: WOt~ Ld
something like the county course in Riverhead~" a ,'i.t; .. -
,,,,.;;
membership clubs catering exclusively to mcrnber~-::: unG "'.,.-, ';' ,,'
".~ ,. '- .. "
guests. When the condi tionsl of that, r'm trying tc qc ::0
Lawyer McLaugillin's point. Is that such U;::;8 ::..; I1 ,~"l ,c-
conducted for profit a3 a bus L'10S5 enterprise, Jt ",-j 1;1~~~S
in reading this and tillnking about it a Ii ttJ.~.: \- , :: ;1,-~l
LI.;. i.Oj'
authors of the zonin:; lo.w put that in there for V'21. '
specific purpose b(:cause they knew that beach cl~Jb~; . i" ~ ~')
clubs, country clubs, golf clubs, public golf cour'sc:::: ,.h.J, L
wouldn't apply, but that';] a little dlfferenL /\.I1 ,:.;n],'12 I
membership clubs are not-for'-profi t. There maybe' ;:;o,nr-'
exceptions to tbZt t I U-:(: Y~~;l.<l~d::.; End whlch y"" ,-,':..t,;,',__,
- " .
existed zoning anY'.I<JY. A t:.rl.v::1tc lOembcrship ':i[c] , i'
membership only North r;"J r ~" C'u 'In ~ l~}' CluD. Fut ;<<..t:,\[.- ..
Developers flock to thc:..jc c 1 L:fJ:3 to bu ild residctit: :__i.
residential homc'oS s U.r:::: 0 unu j rHJ ~h(;!Il~ Jcc<..-:L1SC; I .. <'-' ,
value of a residence rather t:1Cfi rclrJcLlnq rr un; L
ZU5pect that a golf or drivLi'j ;:al1ijL a.nd IHi!liJti~; .~ ;)
that you probably woul<1 \;i th 1 . . h-l- and this tyP(-: :)! ,
.J...1q,'-....:.:.;
I don't thin!: anybo<1y i:3 going .. .'~ ~l()ck to put
'.. U
residential subdivision sl1rruundtng a golf or dr i \/1 L,;: ,].)' :F~' "
I believe that to take the fur profit or the no t. f(-.d.
issue pull it out ::;ep.:tr.J.lt.:l Y .J.nd try to d.c;]1 yilt .:.:i
not the intent of the: '".:ty too ~-:e zoniug hy I t I :~; dutiiur~~
think is unfo.llr to tllc ZU:ll as :~('ction ,j:; d wnu.:..c " J
fracture what wa~ origina:!.:!.y ~. e t out. It: Ie, " ;~ ~lC ~ '__ '.'
condition to IJ1d k e su.te t !1<1 t if a golf club does ;-30 ..d. U d AC
area-, a res iden t i.:1 1 J..rca, It 1 p in i I1dce-(~ ,1 pI I,j,Jt~;..
..~
'ex:blus i ve golf club tha t i::3 going !__o cnh.:::!ncc t l!!~ ): e;i 1 j c ["' t t. .-:1 1
area, blend in with the resident:d: d r C:._'i ,1rnJ ;;0)( r ) ".~ 1;" :1. n.q
other then th.:1t. Not-far-profit l~ a d. f.Ecr:en'~ ~:':':3 tiC' i:t)l(1
that and I don't think t!ut: it C.:ln b" dc'....! 1. t ., j,t scp;L~aL( ty.
\1", ".,
It is the only thing that W~ are .:J.l_1.o..."ed tv ~.a I}:, L1bfjU
tonight. You can't do thClt bccall:;(; , C i,.-Ji' du ,,;.!l;cj.
1. ,
ThIs is not the way th is W.J,S written~ I ~ C;.JI1 I j .~)C 'I. :Jdt
',..\.<
way.
CHl\I RI1AN GOEHRINGER: Thank you.
I1R MDRTIGSR: I OWP property on North 3c:,'1 D1:: L\'; 1 n;~ - ,i ,i_;
" hi" opinion.
MS FI SIlER: I live at the very end of rIurton~ ~., ._lll(~ In'l
would like to sa}' that T agree wi th cvc:r1/tbin'j :. i J .~l 1"1
.
WInter:.; just :.;aid.
MR BOOS: ~orton':; Lune. Conzidering the sltudtlor~l hf'~':: an?,....>,~;.J~~,~'i.;~,;~;,t
I'm not gOlng to say very much except that I c':Jn"i,u'L t[le,.",~~<.~..i.;.;~~;,t"'..:!
fi.!ct that Lucas Ford Is across the street is pretty, ,,;,:..,_:ji\!t;'t;;i"~!~i~,;;..., "
.,~~..),... "i,."e",:,::,:;"", '" ,', ' "1'~"'''!:::;'c;.~~;};:~~~i';;~~~i.;~ 11
0"'''"'''' ., .""'-"'"..",..,.,,,'.' '_'h'" ',...""'~"""~~~~'~~~!~"'~." ,I
_k'.:i~~i;2i~~_ji~i;~;;i::#;i":;., _ ,'. ::';;~lt~~':~~fl~"~~i:'f~~~~~!;-::'\ .,,
.~": ( (
". ... -
Page 24 - January 11, 1991 ~
Public Hearing - Cholowsky/casola
Southold Z.B.A.
distressing already and I don't feet that more distress is
necessary.
MR PATAGLIA: I live on Horton's Lane. I agree with Mr.
Winters. In addition we, thkre are many people in this area
that don't, haven't heard about this plan going in. Haven't
been ,advised and haven't had a chance to come up here and
oppose it. If we cO'lld get a continuance.
CHAIRMAN GOEHRINGER: That is what we are going to do
tonight. Thank you.
MR REGAN: I also live on Hortons Lane. We feel very
strongly about this. First of all there will be a great deal
of traffic, there will be lights. wh~t we ~re really
concerned about is that it could turn into a like it
did in Farmingdale ,;ome yr"'ars ago. We arc very much u;?set
over the idea of not having a continuance until all of our
people are available to come here and t,)lk about it.
CHAIRMAN GOEHRINGER: Thank you.
MR STOLLMEYER: I live on Soundvie\v Ave nC<1r the corner of
Horton's Lane and want to agree Ivith all of the former
speakers.
CHAIRMMI GOEHRINGER: Thank yeu sir.
MS LEPRESTI: I also live on Horton's Lane and I am very
.opp~'sed to this whole proposition. We are very worried.
,.
CHAIRMAN GOE:HRINGER: Thank you.
MR MCLAUGHLIN: Ju::;t a couple of points to reiterate.
Whether this operation is done as' a not-for-profit operation
-or whether it is done as a profit operation it's the same i
facility. Secondly if it is not a special exception use in :
this district there is no other district within the Town of
Southold in which it falls. This is the specific district in
which em operation such as this sort wa,; put into the zoning
ordinance <lnd it's my position to this Board that the attempt
within that ordinance to limit it to a, type of person that
.. C,:In own and oper,Jte thi:lt bu,;lness Is illegal. It cannot be "-
^" done les:tlly. That i5 the sole point that I, want to lOa]{e to ""','
the Board this evening. Again assuming that we go on to the '~~,
next step any and all questions regarding ~he actual,:}I,~"" I
opp.ration of the fdcility will be open ag,Hn to public '."" i
comment as well an continuation of thi,; hearing. Weare ':~";;O;:- , I
. ' . _~ ;,' " ~'." . :\',:' '. '-co j
happ~ to zit down and talk to people about this at any POlnt,",~";p~~':i:i'1',,
in tIme and see if we can overlay some fears. -, .. --~~:~:,::;"::~':-~~';'~::,:~~~'/':;'s..1,>'~:1J~<~F"::;;,
1~\~i;(!;~;~~~~";:Y;^ ,YY'"i,~.I~..
.
.
. fIIt...~. . ( (
, "
"I' - --
....., ,'_.~.~....._~- .+-.
Page 25 - January 11, 1991
Public Hearing - Cholowsky/C~sola
Southold Z.B.A.
CH1,IRMAN GOEHRINGER: Thank you. We thank you a1: t<,'! "nnng
in. We will continue this hearing around mid Februat I IVe
will readvertise it in the interim. Everybody thank 'II' tor.
your courtesy and have a safe tr ip home. Hear in,] .. ':her
comment I mal'a: a motion to .r.cccs3ing it to the nei((~ ":(r:~.,i(ly
scheduled monthly meeting.
- Aye.
''''''~ - 0- ,_, -.,." -..."'.....--".:x~,..
,
~----
'i:"~~ -
- --~tr~,:,!,
,. 'f~'W'~l''''i:~,,_ " "
. ;~:"".:"'...,. ":~,2,'~'~"
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,','" It
". ',': ( \;.~ ;:, "", ~>~-<
,~__ >", -~~,:,,_~~ '~:-<I<~><;~<~'h1~ ~ ~ '"
fr"~,"''''!'-.iI\', ~;.t"t.}~ M"...".' -.>
~ .-~","':1< -1!:,~tJ""~"""'_~""""""A ::.
/----- __.,4- (~~--__'~' '~~i;':Fd,sK;:~'~]~:j~:t~H'~~"~--'
-- .....
,",,,,-.
.
. .
"
5 r',~ i,:c:,'
, U ,,;---~
II
~> ~I '"" 211991
/.5ff,AMbAc~
ATTORNEY AT LA' ' i I~/'
828 FRONT STREET. P. Q. BOX 803
GREENPORT, NY 11944 //1-,:::'2) "'}/". .,,7/-?~
-,
(516) 477-1016
February 21, 1991
Southold Town Board Of Appeals
Southold Town Hall
Main Road
Southold, N.Y. 11971
RE: Application of Michael Cholowsky #3990
Gentlemen:
Please be advised that my client, Michael Cholowsky
hereby withdraws the above mentioned pending variance
application, without prejudice.
As a result, we will not be appearing at the public
hearing scheduled for February 22, 1991, at 8:00p.m..
-
Very truly yours, j ,--L=,
/ ,//"
" "/"
I ' i ," /
I I / '
, ! / ,i, ,'/ ./
I'IJ~ / ~=tCX\.
'~ ~" 1 ,.
/ J. 'f- in M~Laughn 1
('- ",
, .
JKM/dmd
cc: Micheal Cholowsky
2605 Deephole Drive
Mattituck, N.Y. 11952
~-' t . ~/~
/f, ,
,
/ v0'
Page 18 - JClnuary 11, 1991
PubU c IIein ing - Gregory Fego"
Southold Z.3.A.
CHAIRMAN GOEHRINGER: We thank you very much for driving il1l
the way out here.
MR FECOS: I thank you dnd I apologize again.
CHAIRMAN GOEHRINCER: No problem. Good night. I make a
motion reserving my decision of recessing it to the: next
regularly scheduled meeting and clo~ing the hearing ilt thl::;
point. I want to withdraw it. I mJke a motion withdrClwing
my first decision. I mClke a motion closing this hearing and
rescrving decision until later.
All in f,;!vor - AYE.
Appl. No. 3990
Applicant(s) : Cho 1 (1wuky/C,:;3ola
Location of Property: 3340 HO~-:On.f~; L.:1I1C', :~0uthold
County Tax Map ID No. 1000-55-1-')
The Cha i rman ope,ned the h~~...L::ln9 ...tL B:10 p.m. (J.nd .read
the notice of !loClring and application tor the record.
CHAIRMAN GOEHRINGER: I have copy o~ the sIte plan produced
by Fairweather and Brown Architects Des i :;ncrs [rom 122 Front
st. Greenport, NY dated lO/IS/90 indicating this particular
site plan. Are there people in the audience "ho would like
to see this ~itc plan prior to the discussion of thIs
hearing?
AUDIENCE: Can I ask a question? Is th.:tt similar to the map
that ap[Jearcd in ThUl::sday' s Suffolk T i t:1~~ S ? )
CHAIRMAN GOEHRINGER: I think it is. Of cour:.:;e it's.rcduced
a great amount.
AUDIENCE: Yes.
CHAIRMAN GOEHRINGER: ThC1t I::; why I asked you arc \"/01comc to.
Yes sir.
. ~ l
AUDIENCE: I would like to see ll~ . .-
CHAIRH1\N GOEHRINGER: Sure. What we wIll do here at this
particular point then is just allow anybody thJt would like
to take a look for a couple minutes. Who would like to be
heard on beb.:tlf of the applicant? Mr. ~rcLu.ughlin?
MR MCLAUGHLIN: Thank you Mr. Chairm.:tn and Members of the
Board. I'm here on behalf of the applicant Michael Cholowsky.
Basically what we have here is an approximately 17 acre
':!',,;f.~~7~3~:~;,~~;.~<~' /~.: ,," .".~. .."::
.' ~. ; ...: ...:
. .
Page 1~ - January 11, 1991
Public Hearing - CholowskY/C~sola
Southold Z.B.A.
parcel of property on Horton's Lane which is almost directly
across the street from existing Lucas Ford facility. What
the applicant proposes to do is erect a driving range
miniature golf and related building and facilities. Wha t we
arc here for this evening is u very limit~d iS3UC. The
zoning code of this Town has a regulation as far as this
special exception use and the agricultural conservation
district which makes it a requirement that ,:H1Y type of
facility like this must be opcr~ted as a not-for-profit type
of business. I have submitted to this Boa.rd i.I memorandum 'of
law and I think it's very cl(;ar in ",y mind from my research
that the courts of this state will not allow such a provision
to prevail. It's the pruvince of zonIng and planning to
limit and control the uscs La which a property is put. It is
not the province of zoning or planning to attempt to dictate
who can use the property and what thi ;'3 provision of the
special exception nsc docu ....4J tr}' tu l:mit that type of
entity which can operate thl~ kin!] of bu::...;incss. I think if
you have had a chance t', re'vecw my !(t(,morandum you'll see that
all the courts of the state inclu(J ing Lhe highest court ,
Court oE Appeals, 11Qve ruled t:hil!~ ~uch limitations are
illegal nullify ba5ical~y. So \tJh.J.t h't~ ate here for this
evening is simply that varianee. To <1110\-J U::; to go forward
with an application for a special exception and a site plan
approval from the Planni!l'J Board on behalf of a operution
that is going to be run as a business profit operation.
CHAIRMAN GDEHRINGER: Thi:..; L a I~C DLJtr let?
MR MCLAUGHT" IN: That is correct. Any of the issues
concerning the manner in which t!lis operation shall be
conducted or how it shall be built and operated really I
think should more properly refI0~te~ il1 future hearings
regarding special exception use and or ::;; i t :~_~ plan approval.
This again is a very limited l;J~; U(; tI'ldt VA are here before
this Board tonight. We are certainly happy to discuss the
project, to anDwer ~ny questions tllClt dllY one may have in
relation to the project and Mike Cholowsky and his father ,'He
here and if there any questions we would be happy to address
them. . ...
CHAIRMAN GOEHRINGER: Will there be any lighting on the
drivin'j range?
MR MCLAUGHLIN: Yes I believe that shows on the site plan.
The lighting that will be directed ba,sic;ally outward from the
tee area to the landing area for the (;olf balls.
CHAIRMAN GOEHRINGER: The only other question I have is the
issue that you are actually looking for. I assume what you
;~i<,::~" '-.1' ;-'A~~i~'!t.1.,1
_ _.'i~;,~)~~."..""
. .
Page 20 - January 11, 1991
Public Hearing - Cholowsky/Casola
southold Z.B.A.
are lookin<j and correct me if 1 '10 wrong, Mr:. McLaughlin, you
are looking for either relief from that number which i ,..
u
number 7C at 100-31 page 1041 which says I'suetl use shall not
be conducted for profit as a business enterprise."
MR MCLAUGHLIN: I am looking for relief fJ:om that and
allowing us to if we can obtain future necessary approvals
from this Board in the way of a special exception and from
the Planning Board a site plan approval to be able to operate
for business purpose. Not as a not-far-profit type of
operation.
CHAIRMAN GOEHRINGER: My only concen! 1;,) that I assume thdt_
we have pre-exiting golf cour::;es and we :1.lVe a pre-exist in']
miniature <jolf course and we llscd to h~vc ~ pre-existing
driving range in the Town of Southold. If we were to relieve
this condition, or to vary it somewh~t, this would cause a
precedent, :';0 to speak, within the Tuwn. That is my only
concern at this point. It could not only affect this
particular project but many oth<"r projects and that is my
ultimate concern. I have heard of discussions of
construction of a 200 acre golf course in Laurel, which would
certainly not operate unless it \1a s operatr;;r] for profit.
MR MCLAUGHLIN: Unless it was a private club.
CHAIRMAN GOEHRINGER: Similar to North Fork Country Club. I
have also heard discussions about Islands End being profit or
not-profit I really don't have that at this particular point
and it is probably pre-exists zoning anyway. That's my main
concern at this point. Do you have anything you would like
to say in that area?
MR MCLAUGHLIN: Well I think obviously every application has
to stand or fall on it's own mer i t. I suppose there is
legitimacy to your concern and people would certainly come
back and point to this. If I'm denied the relief at this
point obviously I think I have no alternative but to go
forward and again I think the precedents that I have provided ,-
to you in my memorandum of law would indicate that I will
ul t ima te ly preva 11 probably. If that were true if I had to
go that route and I did prevail then that portion of that
zoning ordinance would then be gone throughout the Town. It
would then not be limi ted with my application.
CHAIRMAN GOEHRINGER: I think what you had better let ue do
is recess thiz hearing to the next regularly scheduled
monthly meeting and in the interim we will discuss your
memorandum of the law with out Town Attorney and we will go
from there. Now that is not meaning that we will have it in
. .
Page 21 - January 11, 1991
Public Hearing - CholowskylCasola
southold Z.B.A. ,
the early part of February, it will be the one in the later
part of February.
MR MCLAUGHLIN: My only GOhQeHl i5 th'o\t W<':: .'if) tz}' to W;V<;i
this along as expeditIously as possible because obvtously we
do have other, assuming that we get bcyonJ this stage, we do
have other hurdle:} to overcome., and we would 1 tke to progre,'!s
as quickly as possIble.
CHAIRMAN GOEHR!NGER: Are your applicants contract vendees or
do they own the property?
MR MCLAUGHLIN: Th(~y .:~r(~ longt0rm lea5e~ with option to
purchase.
CHAIRMAN GOEHRINGER: I dOn't p,:lrtlclll[\r."J.i \rldnt to, to be
honest wIth you, cuntInue th:::: to any great degree what I
want to do is ):)E~t discuss it with th0 Tuwn Attorney. We
have been very busy on n~tion~ and all the rest of it I have
not gotten chance to dlscuse thi;::: wI th them. I should point
out for the audience that it L3 the nature of this Board that
when a person brings a hearing before our cJlendar that we do
hear the case and we do dp~reciate everybody coming out here.
I just \>'ilnt to rnc,ntion (or the ~udiencc again that you have
the perfect riq}.~t t,o ;'";pc',Jk tonight that this 1;0' a preliminary
moeting for that sol~~ purpose uf ~eQllng with the issue of
not-for-profit as Of}G')o~;'.::d to profIt which exists in the code.
MR JOHNSON: I live on HorLon's LOJ1e. It's lilY understanding
the previous speaker, t!li;:;5 poInt of law would allow hIm to
build a fat rendering plant for any partIcular busIness he
decided to bld ld. I'm I correct in that.
CHlIIRMAN GOEHRINGER: T don't know bcc~usc I helve not.
completely reviewed the memorandum of law. Th.:lt i5 a
question however though. l\fter we give the Town l\ttorney a
copy of thi:3 that you might ask the Town Attorney.
MR JOHNSON: If it seems so unusually wrong to be able to do
that. I
-
CHAIRMAN GOF.HRINGER: There is no guevtlan that when I ::::at
with the gentlemen who immediately nits to my left and should
mention this gentlemen hils been on tllle; Board for 35 years
along with gentlemen that i::; just ill the hO;Jpital. I asked
him uniquely, at a joint meeting with the Doard of Appeals
from the Inc. Village of Grccnport and the state came down
and we were dealing with a training se:.;:;ion. I said to him
"Ch~rleB Grigonis tell me why what bruught zoning to the Town
of Southald?" He told me that somebody wi1.nted to build a
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Page 22 - January 11, 1991
Public Hearing - Cholowzky/Casola
Southold Z.B.A.
sauerkraut factory in a residential district. That is
basically, if that answered your question, fine.
NR JOHNSON: Thank you very much.
MR MCL,\UGHL IN: If I could just briefly respond to that. My
application is not to allow U3 to do any kind of profit
buslne:.3s t ha t we wa n t to do there. My application Is
simply to allow us to operate, in our particular instance,
the golf driving range and miniature golf for profit as
opposed not-for-profit. A3 far as the public would be
concerned, there would be absolutely no difference betweon
the two operations. To w.:!lk upon the site you would see
absolutely no difference between d profit and a not-profit.
We are not proposing to <10 'lnything other then what is
allowable as a special exception in the AC District. We .:ire
merely asking that as oppose<1 to having to form a not-for-
profit corporation and operate a business without making a
profit. That we will be able to <10 It a3 a rcgul~r busines5
corporation, partnership or individual ownership.
CHAIRMAN GOEHRINGER: Please understand that I am not
comparing your clients project to J sauerkraut factory or
anything of that naturc because I am not.
MR MCLAUGHLIN: I was basically responding to the question
and we .:1rc limited to what we could ever hope to be able to
do under a special exception to those uses that are allowable
for special exceptions.
MR WINTERS: I livu on Hortons Lane. I would like to address
instead of going into my feeling about whether or not a
driving range constitutes a golf course and speak to the
question brought up by counsel of the applicant Jnd due
reeJpect to Lawyer McLaughlin. The word i n'oJ on thb I ,vent
back to the zoning book and when you get into a AC Distr.ict
it talks about preservation, it talks abuut residential
development with a minimum of two acres. It to.lks about
certain exception3, maybe a two family home, possibly a
nursery, a church, things like that. A golf driving range
seems a far cry, to me, from being anything with any kin<1 uf
o.gricultural or conservation orientation. It's a business
pure and simple and it belongs in the business district, not
in a residential district which AC is. In fact AC is
probably more restricted in terms of residential zoning then
is a pure RE. Because it addresses the wide open ranges and
the preservation of the flavor of the Town. The agricultnral
flavor of the Town. In any event, getting down to the
pODsible exception uses, one of them refers to and I'm going
to read if I may, beach clubs, tennis clubs, country clubs,
..,
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Pu<JE' 23 - January 11, 1991
Public Hearing - Cholow3ky/Casola
Southold 2.D.A.
golf clubs, public golf courses, I presume that would be
something like the county course in Riverhead, an annual
membership clubs catering exclusively to members and their
guests. When the conditions of that, I'm trying to get to
Lawyer McLaughlin'c; point. Is that such use shall not be
conducted for profit as a business enterprise. It'::: my gues:3
in reading this and thinking about it a little bit, that the
authors of the zoning law put that in there for very a
specific purpose because they knew that beach clubs, tennis
clubs, country clube;, golf clubs, public golf courses that
wouldn't apply, but that's a little different. An annual
membership clubs are not-for'-pr:ofit. Thnre maybe some
exceptiono to that 1. ,[ !.:,J~ I~;l;d)(E3 End whIch you ~2:ai<1 b)re-
existed zoning anY\Jo.lY. A private membership only e;(cluslve
membership only Nort}l Fur~ C,-,'~ntry Club. For example:
Developers flock to thc;.;e clL.:h:::; to build resIdential areas,
r:esidential homes surrounding them, }JCC<.l use it enhance" the
value of a residence rather tilcn rctractinq from it. As I
suspect that;] yolf or driving ran,",: and miniuture golf l3
that you probably would with lights and this type of thing.
I don't third: anybody is going t;() Elock to put in a
residential subdivision sur:roundlng a golf or driving r:ange.
I believe that to take the fur profit or the not-for pr:ofit
issue pull it uut ~eparately and try tu deal with it alone is
not the intent of the way tLc: zon1ng Ly 1t'~; duthors. I
think is unfo.li r to ::;,,: zuning :;ection d;j a whole to try to
fracture what Wo.~ originall.l' ::et out. It 1:..; in thctc ;)~~ ;.J
condition to make sure t!1at !f a golf club does go in to a AC
area, a residential ...lLCd, it 1.:] in indeed ,} private,
exclusive golf club that is going to cnhoncc the residential
area, lJlend in with the r:esidential o.lrea ilnd not lJe something
othcr then that. Not-for-profiL Is' a d 1 ffcrent i:::;sue from
that und I don't th i:1k t!Llt It c~rl b~ dc~lt witt) ~epar3tcly.
It is the only thing that we arc allowed to talk <:IbolJt
tonight. You can't do that because . ~ vm do jt'::.; juut 'N'I:ong.
l....
This is not the way this W<:lS written. It can't be done that
way.
CHAIRMAN GOEHRINGER: Th<:mk you.
MR t1DRTIGSR: I own property on North Sea Drive and I Second
hie, opinion.
MS PI SI'lER: I live at the very end of Horton::; Lane and I
would like to say that I agree with everything U1at Mr.
Winter::..; just said.
MR BOOS: Horton's Lane. Considering the situation here and
I'm not going to say very much except lhat I consider the
f.lct that Lucas Ford 1s across the str:er:t is pretty
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Page 24 - January 11, 1991
PQblic Hearing - Cl1olowskylCasola
Southold Z.B.A.
distressing already and I don't feet that more distress is
necessary.
MR PATAGLIA: I live on Horton's Lane. I agree with Mr.
Winters. In addition we, there are many people in this area
that don't, haven't heard about this plan going in. Haven't
been advised and haven't had a chance to come up here and
oppose it. I f we cO'11c1 get a cont inuance.
CHAIRMAN GOEHRINGER: Th"t is what we are going to do
tonight. Thank you.
MR REGAN: r also live on Hortons Lc:tne. We Eeel very
strongly about this. E'il':::.it of all there will be a great deal
of traffic, there will bu lights. \'lh"t I'IC ure:re"lly
concerned about is that it could turn into a like it
did in Farmingd;:<lc :~:,omc y,'"rs ,'IIJO. We: arc very much upset
over the idea of not having a continuance until all of our
people are available: to corne :lere .::::niJ t.11k about it.
CHAIRMAN GOEHRINGER: Thank you.
M!1. STDLLMEYER: I live on Soundvicw Ave nC<J.J: the corner of
Horton's Lane and w;:<nt ~o aqTce Ivi th all o[ the former
speakers.
CHAIRMAN GOEHRINGER: Thank you sir.
MS LEPRESTI: I also live on Horton's L,Jne and r am very much
opposed to this whole proposition. We are very worried.
CHAIRMAN GOEHRINGER: Thank you.
MR HCLAUGHLIN: JUGt a couple of point~ to U,' i tera te.
Whether this operation is done as d not-far-profit opcrution
or wlwl:hc:r it 15 done as a profit operation it's the same
facility. ,secondly if it ~ ," not ~ spcci~l exceptIon LIse in
,"
this district there is 110 other district witl11n the Town ()f
Southold ill which .<- [aIls. This is the specific district in
l~
which an operation Guch as this sort wa~ put into the zoning
ordinance und it's my position to this Board that the attempt
within that ordinance to limIt it to a type of per~on that
can own and operate that business Is illegal. It c,:lnnot be
done le'J,,:,ly. That i3 the sole point that T want to wake to
,
the Board this evening. Again aSGuming that we go on to the
next step any and all ql1es t ior15 regard! n'J the actui'll
operation o[ the facility will be open ugain to public
comment as well an continuation of t:hL, IH,aring. Wl' are
huppy to sit down and talk to people "bout l:his at any point
in time and see if we can overlay some fears.
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Page 25 - January 11, 1991
Public Hearing - Cholowsky/casola
Southold Z.B.A.
CHAIRMAN GOEI!RINGER: Thank you. We thank you all for coming
in. We will continue this hearing around mid February. We
will readvertlse it in the interim. Everybody thank you for
your courtesy and have a safe trip home. Hearing no further
comment I make a motion to rece,;sing it to the next l:cguLuly
scheduled monthly meeting.
All in favor - l\.yc.
Appl. No. 3993
Applicant(s) : Kcnrlct:b L. Eclr,lardz
Location of Property: Th..:> Gloaming, Flshcr3 Islan(~
County Tax Map ID No. .1 ~~o-
The Chairman opened the hearing at 9:05 p.m. dnu l.c,Jd
the Clotice of h()i.!r: 111'; ell,(J 'i[>pllc:ation for the rt:co!"(].
MR DOYEN: I have v l('\'IL~c.1 !;l1c ;,:; t te because of the topo(jl::.Jph1'
thiz. is the only pructi.c',-\l s j tc on this lot for un ;lCC<:~;j:.:;ory
building.
C~IhIRMAN GOEHRINGBR: rc it ~ one story building?
j"J
MR DOYEN: It will bi:: oj one story building.
CHAIRMAN' COEHRIUGER: No\: to exceed how high?
MR DOYEN: Less then the ordinance 11mi t.
CHA:RMAN GOEHRINGER: To be used strictly fo~ storage?
MR DOYEN: Strictly for a sti)toge g~rage Eor ~n ~utomobl1e
and ~:;tor.]ge.
C:!AI mU\N GOEHR INGER: Whut type of utilitle~?
MR DOYEN: possibly electricity but no w':lt<n, no other
utilities.
CHAIRMAN GOEHRINGER: No hCut?
MR DOYEN: No heat.
CHAIRMAN COEHRINGER: r have flU ot:h(~r gl1Q~Jtl()ns . No further
questions?
~1R DOYEN: The only thing I'll add it certainly can't be
objectionable to anybody else bec~use of 1 +- I,.. location. It's
, ,~
more or less in the center of his lot as it works out.
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A'ITORNEY AT LA
828 FRONT STREET, P. 0, BOX 803 rD'~ @ ~ DiyJ~ i~i
GREENPORT, NY 11944
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(516) 477-1016
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January 8, 1991
Southold Town Board of Appeals
Southold Town Hall
Main Road
Southold, New York 11971
RE: APPLICATION OF MICHAEL CHOLOWSKY
Gentlemen:
Enclosed herewith please find Memorandum of Law with regard
to the subject application. --
If you have any questions, please feel free to
JKM/ lmt
enclosure
HAND DELIVER
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i APPLICATION OF MICHAEL CHOLOWSKY, "
I TO THE ZONING BOARD OF APPEALS, MEMORANDUM OF LAW
I TOWN OF SOUTHOLD
I X.
FACTS
This is an application to the South old Town Zoning Board of
I Appeals for a variance to the South old Town Zoning Ordinance, Article
ii III, Section 100-31B(7)(c) concerning the proposed establishment,
!i construction and operation of a golf driving range, a miniature golf
II course and building with office accessory and incidental thereto, The
I,
i sUbject premises is known as 3340 Horton's Lane, Southold, New York,
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, bears County Tax Map Parcel I.D. No, 1000-55-1-9 and contains 16,7%
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I acres, Said property is owned by Lorinda C. Casola and the applicant
is the holder of a long-term lease thereon with an option to purchase.
Applicant has applied to the Southold Town Building
Department for a building permit, but a Notice of Disapproval has been
issued, stating that the applicant requires both a special exception
and a variance. Section 100-31B(7)(c) states that any of the special
exception clubs and uses allowed wi thin said Section ",., shall not be
conducted for profit as a business enterprise." It is the applicant's
contention that the purported limitation of such special exception uses
I to not-far-profit enterprises is clearly illegal and that a variance
should be granted allowing the applicant to conduct such a use as a
business enterprise for profit.
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i LEGAL ARGUMENT
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Article 16 of the Town Law regulates zoning and planning by I
the various towns within the State of New York. Section 261 thereof
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establishes the power granted to the towns by the State of New York and
reads as follows:
For the purpose of promoting the health, safety,
morals, or the general welfare of the community,
I the town board is hereby empowered by ordinance to I
I regulate and restrict the height, number of stories I
[ I
: and size of buildings and other structures, the I ,
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I percentage of lot that may be occupied, the size of
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I yards, courts, and other open spaces, the density
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I. of population, and the location and use of I
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'I buildings, structures and land for trade, industry,
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Ii residence or other purposes; provided that such
iJ regulations shall apply to and affect only such .._~.
I.
Ii part of a town as is outside the limits of any
II incorporated village or city; provided further,
that all charges and expenses incurred under this
I article for zoning and planning shall be a charge
upon the taxable property of that part of the town
outside of any incorporated village or city, The
town board is hereby authorized and empowered to
make such apprppriation as it may see fit for such
charges and expenses, provided however, that such
appropriation shall be the estimated charges and
expenses less fees, if any, collected, and
provided, that the amount so appropriated shall be
assessed, levied and collected from the property
outside of any incorporated village or city. Such
regulations may provide that a board of appeals may
determine and vary their application in harmony
with their general purpose and intent, and in
accordance with general or specific rules therein
contained.
Nowhere in said section is there any grant of power to
I regulate the form of ownership of property within the context of the
zoning and planning authority of a town. In fact, cases are legion
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i exist. Indeed, it is a fundamental rule that zoning deals basically
I with land use and not with the person who owns or occupies it. (See
,
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i Matter of Dexter V. Town Board, 36 N.Y, 2d 102, 105, 365, N,Y,S 2d 506,
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I 324 N,E. 2d 870; accord, Matter of Weinrib V, Wiesler, 27 N.Y. 2d 592,
, 313 N,Y,S. 2d 407, 261 N.E, 2d 406, Aifg 33 A,D, 2d 923, 307 N,Y,S, 2d
603; Allen V, Town of North Hempstead, 103 A,D, 2d 144, 146, 478, i
N.Y.S. 2d 919; North -Fork Motel V, Griaonis, 93 A,D, 2d 883, 461 N,y,s,l
2d 414; ~, Matter of Park W, ViI Assoc, V. Abrams, 65, N,Y. 2d 716, I
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492 N,Y,S. 2d 27, 481 N,E. 2d 567), Annexed hereto are copies of the
North Fork Motel V. Grigonis and FGL&L Property Corp. V, City of Rye
-.~-.
decisions.
It is absolutely clear and certain from the foregoing cases
that the attempt in Section 100-31B(7)(c) of the Zoning Code to
restrict the allowable special exception uses to not-for-profit
entities is a legal nullity. As expressed in all of those cases, it is
use rather than form of ownership that is the proper concern and focus
of zoning and planning regulations. The decisions of all leyels of
courts in this State, including the Court of Appeals (the highest leyel
I court in this State) are uniform in holding that a zoning ordinance may
I
I not regulate the form of ownership of property, as distinguished from
I regulating the use of said property,
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CONCLUSION
The Southold Town Zoning Board of Appeals should grant the
requested variance to allow the applicant to establish, construct and
operate a golf driving range, miniature golf course and building with
accessory office thereto under any form of ownership, including a
,
business enterprise for profit, which said applicant deems appropriate, i
Respectfully submitted,
J, KEVIN MCLAUGHLIN
Attorney for Applicant, Michael
Cholowsky
828 Front Street, PO Box 803
Greenport, New York 11944
i (516)477-1016 ~-,~.
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414 461 NEW YORK SUPPLEMENT. 2d SERIES
Wickham, Wickham & Bressler, P.C., 93 A.D.2d 883 Smith,
Mattituck (Eric J. Bressler, Mattituck, of & Yakab.
counael), for appellant. NORTH FORK MOTEL, INC~ . Riverhead
Posner & Posner, Mount Vernon (Linda Respondent, Esoeks,
S. Jamieson, Mount Vernon, of counael), for v. -, head (St,
William Sirignano, receiver-respondent. Charles GRIGONIS. Jr~ et aI., constituting counsel), I
Before GIBBONS, J.P., and GULO'ITA, the Zoning Board of Appeals of the Before
O'CONNOR and NIEHOFF, JJ. Town of Southold et al~ AppellaQta. BRACKE
MEMORANDUM BY THE COURT. Supreme Court, Appellate Division,
In an action, inter aIia, for a declaratory Second Department. MEMO:
judgment to determine the ownership of a In a CI
publishing house, defendant appeals from April 25, 1983. peal is fr
an order of the Supreme Court, Westches- Court, Su
ter County, entered September 9, 1982, which an:
which, upon the respondent receiver's mo-. Town zoning board of appeals appealed inspectors
tion to punish him for contempt of a prior from a judgment of the Supreme Court, Hinderma
order of the same court, adj udged him in Suffolk County, Gerard, J., whieh annulled December
contempt and permitted him to purge him- determinations of building inspectors and a tenninati!
self thereof by, inter aIia, rendering an determination of the zoning board of ap- of the T,
account. peals which denied applications for permis- 1981, whi
Order reversed, without costs or disburse- sion to change the form of ownership of for, permi
ments, and matter remitted to Special Term certain premises. The Supreme Court, Ap- ership of
for further proceedings consistent herewith. pellate Division, held that special term cor- JUdgm,
[1.2] The record before this court fails rectly concluded that the conversion of bursemen
to indicate whether defendant was ad- ownership of the subject property from a "-_ [1.2]
judged guilty of civil or criminal contempt, corporate form to a condominium form was pJoyed b)
and at the hearing which must be conduct- not violative of the town zoning ordinance minhirns
ed, the course being pursued must be made provided the property's use as a motel re- minium j
clear. Adjudging defendant to be in enmi- mained unchanged. rather th
nal contempt is not warranted on this reo- ,Affirmed. proper c.
ord, as there is no finding that the alleged planning
disobedience of the prior order of the court Map/ewo.
was willful, and simil~rly an adjudication of 1. Zoning and Planning =72 wood Vii,
civil contempt is not warranted because Bridge F
there is no finding that defendant's actions Zoning ordinances cannot be employed Park. 11:
were calculated to or actually did defeat, by a municipality to exclude condominiums Nor docs
impair or prejudice the rights and remedies or discriminate against condominium form ownershil
of the plaintiff (see Matter of Ross v. Sher- of ownership, for it is use rather than form valid exh
wood Diversified Servs., 88 A.D,2d 936, 450 of ownership that is proper concern and of 4Uiami
-' . N.Y.S,2d 872). focus of zoning and planning regulations. minium j
Also, defendant denied that he had failed McKinney's Town Law ~ 261. Court A,
to turn over any assets of Queens House, as 2. Zoning and Planning =76 Chapel I
was alleged by the receiver. Questions of 418). Al
fact were raised on that and other issues Special term' correctly co~cluded that concludel
that could not be resolved without a hear- conversion of ownership of property from of the SI
ing (see Crisona v. Eastern Props. Improve- corporate form to condominium form w.. form to a
ment Corp., '}{/ A.D.2d 717, 717-718, ,}{/7 not violative of town zoning ordinance pro- of the z,
N.Y.S.2d 477; Kamen v. Kamen, 13 A.D.2d vided property's use as a motel remained Southold,
985, 216 N.Y,S.2d 715). unchanged. McKinney's Town Law ~ 261 .... as a
Ifh,
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MEDARIS v. VOSBURGH 415
CIte.. 481 N.Y.5.2d4JS (A.D.2Dept. 1183)
Smith, Finkelstein, Lundberg, Crimmins 93 A.D.2d 882
, & Yakaboski, Riverhead (Frank A. Isler,
,., Riverhead, of counsel), for appellants. ' Virginia C. MEDARIS, Respondent,
Esseks, Hefter, Cuddy & Angel, River- v.
head (Stephen R. Angel, Riverhead, of Lee Frederick VOSBURGH, et
ituting counsel), for respondent. al~ Defendants,
of the , Delore MANGANO, J.P., and GIBBONS,
,lIants. BRACKEN and NIEHOFF, JJ. Bruce Robert Heinzen et al., Appellants.
on, MEMORANDUM BY THE COURT. Supreme Court, Appellate Division,
In a CPLR artiele 78 proeeeding, the ap- Second Department.
peal is from a judgment of the Supreme April 25, 1983.
Court, Suffolk County, entered July 1, 1982,
! which annulled determinations of building
maled inspectors George H. Fisher and Edward F. In medical malpractice action to recov.
Sourt, Hinderman, dated February 13, 1980 and er damages for personal injuries, plaintiff
lUlled Docember 22, 1980, respectively, and a de- refused to answer certain interrogatories
and a termination of the Zoning Board of Appeals propounded by delendant. The Supreme
rap- of the Town of Southold, dated June 25, Court, Suffolk County, McCarthy, J., denied
'rmis~ 1981, which denied petitioner's applications defendant's motion to compel answers to
ip of for, permission to change the form of own- interrogatories, and delendant appealed.
,Ap- .!Ship of certain premises. The Supreme Court, Appellate Division,
I Cor.. Judgment affirmed, without costs or dis- held that trial court erred in denying de-
n of bursements. fendant's motion to compel on basis that
1m a [1,2] Zoning ordinances cannot be em- interrogatories did not ask for facts but for
was ploy~ by a municipality to exclude condo- opinions and amplifications of allegations of
ance miniums or discriminate against the condo- negligence, especially where plaintiff had
Ire- minium lorm ol ownership, for it is use lailed to make timely motion to strike chal-
rather than form of ownership that is the lenged interrogatories.
proper concern and focus of zoning and Order reversed; motion to compel an-
planning regulations (see Town Law, ~ 261; swers granted.
Map/ewood Vii. Tenants Assn. v. Maple-
rood Vii., 116 N.J.Super, 372, 282 A.2d 428;
.yed Bridge Park Co. v. Borough of Highland 1. Pretrial Procedure _284,305
Park, 113 N.J.Super. 219, 273 A.2d 397).
urns )/or does the mere change in the type of In medical malpractice action, trial
'}rm ownership result in the destruction of a court erred in denying defendant's motion
'rm ..lid exiating nonconforming use (see City to compel plaintiff to all8wer interrogato-
,"d 0( Miami Beach v. Arlen King Cole Condo- rics on basis that such interrogatories did
Ins. minium Assn., 302 So.2d 777 [FIlL]; Graham not ask for facts but for opinions and ampli-
Court Assoc. v. Town Council of Town of fications of allegations of negligence, espo-
Chapel Hill, 53 N .C.App. 543, 281 S.E.2d dally where plaintiff had failed to make
(18), Accordingly, Special Term correctly timely motion to strike challenged interrog-
>at "'neluded that the conversion of ownership atories. McKinney's CPLR 3101(a), 3124,
.m of the subject property from a corporate 3131, 3183(a),
'as form to . condominium form is not violative
'()o of the zoning ordinance of the Town of 2. Pretrial Procedure _242
cd Southold, provided the property's present Purpose of interrogatories is distinct
it. ... as . motel remains unchanged. from that of bill of particulars; while inte....
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FGL & L PROPERTY CORP. v. CITY OF RYE 333
ClteaA486N.Y.S.2d333 (A.D. 2 Dept. t98S)
N,Y,2d 942, 298 N.Y.S,2d 724, 246 N.E,2d miniums, was invalid, since it constituted
527}, improper regulation of form of ownership
of property,
o ~m"UMIIHfSm" 3. Zoning and Planning ~61
~ Municipality does not have power to
regulate manner of ownership of legal es-
tate, as it is use rather than form of owner.
109 A,D,2d ~14 ship that is proper concern and focus of
FGL & L PROPERTY CORP., zoning and planning regulations.
Appellant-Respondent,
v. Weil, Gotshal & Manges, New York City
The CITY OF RYE. et aI., (Peter Gruenberger, Lesley E, Goldberg
Respondents-Appellants. and Robbie Narcisse, New York City, of
S C A II D'. ' counsel), and Berger, Steingut, Weiner,
upreme ourt, ppe ate IVlslon, Fox & Stern, New York City (Theodore S,
Second Department. Steingut, New York City, of counsel), for
March 18, 1985. appellant-respondent (one brief filed),
Richard M, Gardella, Corp, Counsel, Rye,
, , for respondents.appellants.
ActIon was brought seekmg to have .
declared unconstitutional an ordinance MeIghan & Necarsulmer, Mamaroneck
which purported to create new zoning dis- (Garrison R. Co:win, Jr., Mamaronick, of
trict, applicable only to one person's 22- counsel), for fnends of ~a~shlands, Inc.
acre lot, and which dirtcted that purported and Federated Conserv~t~oms~ of West-
district be maintained in single ownership chester County, Inc., amICI curiae.
~n~ that any ,deve~opment of ~roperty be Before LAZER, J,P., and MANGANO,
lImIted to resldent181 condommlUms, The BRACKEN and NIEHOFF, JJ.
Supreme Court, Westchester County, John
C, Marbach, J" denied injunctive relief MEMORANDUM BY THE COURT,
against enforcement of ordinance pending I t" t [' f ' d t
, d "f di n an ac lon, ~n er a ta, or a JU gmen
h..armg to etermm., or nance was con- declarin R e Cit Code ~ 197-13,2 invalid
flscatory, and appeal was brought. The d g y,.y .,
S Co A 11 te D. . , h Id an unconstItutIOnal, plamtIff appeals, as
upreme urt, ppe a IYISIOn, e I. 'ted b 'ts b . f f h f
h d' 'I'd' 't ti Imt Y I fie, rom 80 mue 0 an
t at or mance was mva I smce I cons - rd f th S Co rt W teh te
. . oero eupreme u, es esr
tuted Improper regul?tIon of form of own. Co t te d M h 5 1984 d' d
ership of property. . ,un Yo' en ~e ~rc, ,as eme
mJunct1Ve rehef agamst the enforcement of
Reversed. that section of the city code pending a
hearing to determine if said section was
. I' confiscatory with respect to plaintiffs
I. Zom~g a~d Panning e:'1 property, and defendants cross-appeal from
Zonmg IS concerned wIth use of land, so much of the same order as denied their
~nd not with person who owns or occupies motion for summary judgment declaring
It, said section of the city code valid.
2. Zoning and Planning >3=>61 Order reyersed insofar as appealed from,
Ordinance which purported to create on the law, with costs, the second and third
new zoning district, applicable only to one decretal paragraphs thereof are deleted,
person's 22-acre let, and which directed and it is declared that Rye City Code
that purported district be maintained in ~ 197-13,2 is invalid as it constitutes an
single ownership and that any development improper reg'ulation of the form of owner-
of property be limited to residential condo- ship of property.
-"
I -
, -
Ii'
-.-..-.--.-----",,"___..,,"_..
334 486 NEW YORK SUPPLEMENT, 2d SERIES
The ordinance in question purports to In light of our determination, we do not
create a new zoning district, applicable only reach the other issues.
to plaintiffs 22-acre lot. The ordinance
further directs, among many other things, w
that the purported district must be main- o t IU' lulM.n SYSUM
tained in single ownership, and further pro- T
vides that any development of the property, 109 A.D.2d 815
which is severely restricted, be limited to FIRE ISLAND PINES, INC.,
residential condominiums. Respondent,
[1] As a fundamental principle, zoning v.
is concerned with the use of the land, and COLONIAL DORMER
not with the person who owns or occupies
it (see, e,g., Matter of Dexter 11. Town Bd. CORP., Appellant.
of Town of Gates, 36 N.Y.2d 102, 105, 365 Supreme Court, Appellate Division,
N.Y,S.2d 506, 324 N.E.2d 870; Matter of Second Department.
Weinrib v, Weisler, 33 A.D.2d 923, 307 March 18, 1985.
N.Y,S.2d 603, affd. 'Z1 N.Y.2d 592, 313 N,Y.
S.2d 407, 261 N,E.2d 406; North Fork Mo- Default judgment was entered against
tel v, Grigonis, 93 A.D.2d 883, 461 N,Y.
~ S.2d 414; Allen v. Town of North Hemp- roofing company in action for damages al.
stead, 103 A.D.2d 144, 478 N.Y,S,2d 919). legedly resulting from defective work,
[2,3] The instant ordinance, which pur. The Supreme Court, Nassau County, John
ports to direct how the property may be W. Burke, J., denied roofing company's mo-
held to the exclusion of all other forms of tion to vacate, r.nd it appealed. The Suo
ownership, must fail because, as a general preme Court, Appellate Division, held that
principle, a municipality does not have the where complaint was properly forwarded to - ,
power to regulate the manner of ownership insurer, which neither filed an answer nor
of a legal estate, as Hit is use rather than denied coverage, roofing company was enti.
form of ownership that is the proper con. tled to have resulting unintentional default
cern and focus of zoning and planning reg- judgment vacated, particularly in light of
ulations" (North Fork Motel v, Grigonis, evidence of meritorious defense, and ab-
supra; see also McHenry State Bank v, sent claim of prejudice by opposing party.
City of McHenry, 113 Ill.App.3d 82, 68 Order re:versed; motion to vacate
Ill.Dec. 615, 618, 446 N .E.2d 521, 524; CHR granted.
Gen" Inc. v. City of Newton, 387 Mass.
351, 439 N.E.2d 788, 791; Bridge Park Co, Judgment e>143(3)
v. Borough of Highland Park, 113 N.J.Su- Where insured roofing company for-
per, 219, 273 A,2d 397, 399; County of warded compla.int alleging defective work
Fayette v, Cossell, 60 Pa.Cmwlth, 202, 430 to its insurer through broker, broker as.
A.2d 1226, 1228; Graham CL Assoc. v, sured roofer that insurer would provide
. Town Council of Town of Chapel Hill, 53 defense, and insurer neither filed answer
N ,C,App, 543, 281 S,E.2d 418). Although nor disclaime4 coverage, roofer was enti.
in the majority of the above cases the gen- tled to have resulting unintentional default
eral principle was invoked to prevent a judgment vacated, particularly in light of
municipality from excluding the condomin. affidavits demonstrating meritorious d..
ium form of ownership, and here the in. fense, and absent claim of prejudice by
stant ordinance permits that form of own- opposing party.
ership to the exclusion of all others, the
result is the same. The city here has at-
tempted to dictate how property may be Jay Berlin~r, Massapequa, for appellant.
owned, and that is exactly what it is not Harold F. Damm, Mineola, for respon.
authorized to do, dent,
"-'''-;',.~,o..-. ,I'<-J..' r. .,,.....' ,,' ".. ....e . -,,,',-,, ,.'-~ '.....~,~-;,. ......~..,j.. ,~._ oJV...,__.." '__^~..~....:Jo.: -'''''_._-d '-,,-'. """",,'~r.?<...~,;1''': ~ .~-~;<!E<,I<~
-....----
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".'.<;" ,i";:i~,.ii:'''';; /'i:;;,. >/ '... ,', '..' ',,'., ,'. ,', , .
"..;;~ ~'':',;"v ",';Ii~,:t~. ~';tV~'~'i"jt:.; ~(f'.tl'trlf~"~:~. ..':~.J ,,' "" '
, . ~U..,iJ""'ii, ;;;1".~~{1~:, :~~':_ "j'~1i~?"~1Lf~;'~'-f :",:~,: "", '""""...
-"."
'''-1,
, .
,
I FGL " L PROPERTY CORP. v. CITY OF RYE 321
{.2d IO~ i 66 N.Y.2d 111
eueu095N.Y.8.2d321 (ClApp. 1985)
i
n there. j (61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 485 N.E.2d 986
at "any ! N .E.2d 16 [absent exercise of discretion by 66 N. Y.2d 111
Ice due 1 the Appellate Division so egregious 88 to .,W,FGL " L PROPERTY
I amount to an abuse of discretion 88 a mat-
sums," ; ler of law, its exercise of discretion is not CORP., Respondent,
,he tern.
,") and I reviewable by us)). The factors listed by v.
periods I the Appellate Division 88 the b88is for its CITY OF RYE et 81., Appellants.
'no The reduction of the award to 26'10 make clear Court of Appeals of New York.
f:!r sup- that there W88 no abuse of discretion 88 a .
lich de- matter of law. Nor W88 the Appellate Di- Oct. 24, 1986.
"to be vision required by Domestic Relations Law
5;ection t 236(B)(5)(g) to analyze each of the Property owner brought action seeking
factors stated in subdivision (5)(d) and give
'mainte- reasons 88 to each, it being sufficient under an injunction against enforcement of local
;", both subdivision (6)(g) that it "set forth the zoning law. The Supreme Court, Special
,han re. Tenn, Westchester County, Marbach, J.,
"pellate factors it considered and the reasons for its held the ordinance valid, and appeal was
slump. decision" (Kobylack II. Kobylack, 62 taken. The Supreme Court, Appellate Divi-
1emain. N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 sian, 109 A.D.2d 814, 486 N.Y.S.2d 333,
~lations N.E.2d 829). reversed, and appeal was taken. The
Plaintiffs remaining arguments are ei- Court of Appeals, Meyer, J., held that noth.
I]aintiff ther not before us on this appeal, unpre- ing in zoning enabling provisions of Gener.
',e stat. served or without merit. al City Law, historical preservation provi-
award [91 On plaintiffs appeal, the order of sions of General Municipal Law nor land-
, distri. marks preservation provision of city code
ains no the Appellate Division should be affl1'tDed, empowered city to mandate the manner in
I in lieu without costs. Defendant's cross appeal which property may be owned or held or to
of the should be dismissed for want of aggrieve- impose upon the owner of a tract eontsin-
A,D.2d ment, the modification made by the Appel- jng historic structures, or purchasers of
; ssed 63 lale Division having been in his favor. properties neighboring the tract, the cost
N.E,2d of rehabilitation or enhancement of the
r.Y.S,2d WACHTLER, C.J., and JASEN, MEY~R, properties.
he con- SIMONS, KAYE, ALEXANDER and TI. Affinned.
.waSu," TONE, JJ., concur in Per Curiam opinion.
vard of On review of submissions pursuant to
atobe section 500.4 of the Rules of the Court of 1. Zoning and Planning $>232
I~ssened Appeals (22 NYCRR 500.4): on plaintiffs Zoning laws are to be given strict co,,-
age-in appeal, order affirmed, without costs. De- struction because they are in derogation of
tenance lendant's cross appeal dismissed, without common.law rights.
future, costs. 2. Zoning and Planning $>21
"pellate There being no inherent power to enact
award zoning or land use regulation, an ordinance
,Iy if it or local law provision for which legislative
,cretion w delegation of power cannot be found is
r~ Pro- o t I.n MUM"I snnM ultra vires and void.
T
'rd/oro. 3. Zoning and Planning $>5
;50,458
"""nat., Power to adopt zoning provisions not
be trial expressly forbidden by enabling authoriza.
,t"ge of tion may be implied where there exists
>r to be independent justification for provisions
(l-u.d."a&. within the spirit of the enabling legislation,
",j
-
, . · r
i
322 495 NEW YORK SUPPLEMENT. 2d SERIES 66 N.Y.2d III i 66 N.Y.2d W
I
4. Zoning and Planning ,*,,61, 63 impose upon the owner of a tract contsin- t which in sev.
Neither enabling provision for resi- ing historic structures, or purchasers of ! injunction ag
dential zoning in cities, McKinney's Gener- properties neighboring the tract, the cost , tion, a decla,
al City Law fi 20, suhd. 24, nor section of rehabilitation or enhancement of the ! ultra vires, \
containing cluster zoning authorization ap- properties. The order of the Appellate Dj. I spot zoning :
plicable to city, McKinney's General City vision should, therefore, be affirmed, with i well..:onsider.
Law fi 37, empowered city to enact zoning costs. j damagea und
law requiring, inter alia, that lot containing ! ants moved f
two historic buildings have a minimum I i ing the local
area, remain in single ownership, buildings Plaintiff is the owner in fee of a parcel of ; wise dismiss
not con,tain more than three and six units, land situated in the City of Rye, (City) of I ~o~s-moved '
respectively, and that owner or purchasers approximately 22 acres on which are local- , m Its favor,
j of properties neighboring tract supply cost ed the Jay Mansion, built in 1838 ',by Peter f there were ;,
of rehabilitation or enhancement of the Jay, son of John Jay, the first Chief Justice ;, ality requu:in
, properties. of the United States Supreme Court, and ~ as a hybrtd
th b 'Id' 1m th Ca. \ zoning and hi
5. Zoning and Planning '*"61 ano er UI mg own as e. rnage i ,
, " " House, built around 1912 in the Colonisl f was not mva,
Neither hlstortcal preservation proVl' R '1 1 Th. d. te c.' in" and had
, , , fG 1M" lLa eVlva stye. ere IS some ISpU ...., &
slons In section 0 enera UDIClpa w. th .._' 'th h" . I accordance Yo
., . . tween e PiW wes eoncemmg e i3tDrlc or '
McKmney s General MURlclpal Law fi 96-a, I d k "f' f th Car, ; "Ian and thaI
. . . an mar slgm lC&nce 0 e nage! r I
nor landmarks preservation provIsion of H b t f f this " , not lie with
, d h. d 't to t' ouse. u or purposes 0 opinion we l
CIty co e aut Ol'1Ze CI y enac zonmg th t both b .Id' ha' h'; Defendants' 1
d ' '0 d., assume a UI mgs ve suc slg' ,
law man atmg that entire 2<r-acre IStrict 'f' It . to d ta"l the was theref.
. , 'I h. .th d I Rl leanee. IS unnecessary e I, '
! remam m smg e owners Ip WI eve oper , ti' 'ed f 1979 til i demonst.....tel
, , " . , negotia ons earn on rom un I
. to ,r~hablhtate exter.lOrs of two hlStortc 1983 between the City and plaintiff's pred.. i section preve
! bUlldmgs, and proscrtbmg use of any new . ti.tl I d betw th C't d l nomic benefit
d II' 't t'l th t hab'l'tati' h d eesoor mean een e I y an I
we mgum un I a re lion a I. tiff dth. . t cross motion
. . p SIn . an e VartOUS rezonlllg propos- ,
been accomphshed, thereby effectively re- I that ad d. th tia' I ed to the Ap
" tht t f hb'l'tati' b h d as werem e unng osenego. 1
qUlrtng a cos 0 re a lion e s are ti Ith h f rtin. t d ! its brief fro!
b . d. 't f 'ts th th ons, a oug a ew pe en an uneo.. '
y owners m IStrlC 0 UD! 0 er an ted f.~. d 1 ped d . th ,: i as to the sec
b .Id' , ti. tes ....... eve 0 urlng 08e nego~ . '
UI mgs m ques on. . f d" bel 1 fendants ap~
ations are re erre w ow. . d d'
. .., lorerasU"el
When acquired by plamtiff s predecessor and denied .
, Henry J. Smith and James G. Fine, White the Property was zoned R-2. as were neigh- th t. "
. . eseClon'
I Plains, for appellants. boring properties, some of which were I Appellate D;
.J.L12Peter Gruenberger, Lesley E. Gold. used, however, for public ~urposes or of. I N.Y.S.2d 333
berg, Robbie Narcisse and Theodore S. fiee. use unde~ non~onfornlln.g uses. R-2 \' ferred only
Steingut, New York City, for respondent. zORlng penmts smgle-famtly detached section, reve
homea on not less than one.half.acre plots, I "invalid as it
..1.L OPINION OF THE COURT and plaintiffs property would have accom- lation of the
18 modated 38 such dwellings. In June 1983, ty." (109 A,
MEYER, Judge. the City Council adopted Local Law No,! 333,) We a
Nothing in the zoning enabling provi- 5-1983, which added a new section 197-13,2 I consider the~
sions of the General City Law, the histori- to the City Code creating the Alansten I the zoning el
. cal preservation provisions of the General Landmarks Preservation District (LPD-A), the City act<
Municipal Law or the Landmarks Preserva- As the revised zoning map demonstrates, late ownersh
tion provisions of the Rye City Code em- and defendants do not deny, the only prop' ing in the hi,
powers the City to mandate the manner in erty zoned LPD-A was plaintiffs 22 acres, of the Gener
i which property may be owned or held or to Plaintiff then began the present action, marks Pres.
J 1. Title has apparently been transferred back to not moot the appeal (Poci/ic Blvd. Assoc. v. City Code, upon'
I the predecessor by plaintiff. but the fact that of Long Beach. 38 N.Y.2d 766. 381 N.Y.S.2d 55. whether con
there has been no substitution of puties does 343 N.E.2d 772). junction wit
I I
;".
. .
,
,.",.....,_.... ,,,,.. :. ,j,' r.,,t..~1!i;i:~,~,:i,,,; ,~.;,;,..,'i~~;i:',~, ."" "~ ;~ . ,,', " ...... "'", .-.--.-"....."... "",, ,,,".,,
~...-..;',.,~; ',.
.. ...-. """" '" ,
i
I 66 N.Y.2d 115 FGL & L PROPERTY CORP. v. CITY OF RYE 323
Cite.. 495 N.Y.5.2d 3%1 (CtApp- 19M)
which in seven causes of action sought an sions of the General City Law, empowered
, injunction against enforcement of the sec- the City to enact the section in its present
lion, a declaration that_JJ.14it is invalid as form. We, therefore, affIrm.
S ultra vires, unconstitutional, site specific,
I
t .pot zoning and not in accordance with a II
well-considered zoning plan, and money The section as enacted declares that in
I damages under 42 D.S.C. ~ 1983. Defend. order to provide for flexibility in the City's
ants moved for summary judgment declar- zoning "so that the significant historic
ing the local law constitutional and other- buildings, the Jay Mansion and the Car-
wise dismissing the complaint, Plaintiff riage House, and site features which char-
cross-moved for partial summary judgment acterize this site " . " are preserved for
in its favor. Supreme Court held that the future and that new construction be
0, there were issues concerning constitution~ undertaken with care and consideration for
ality requiring trial, but that the ordinance, these features and the environment", the
as a hybrid containing elements of both new district is adopted. Subdivision B es- i
zoning and historic preservation regulation, tablishes standards for the new district,
was not invalid as site-specific or spot-zon- which include that "[tJhe lot as approved
ing and had not been shown not tu be in shall have a minimum area of twenty-two
accordance with the City's comprehensive (22) acres and shall be and..lI.l!;remain in
plan, and that the section 1983 action would single ownership"; that "[tJhe exterior of
not lie with respect to legislative action. the Jay Mansion and Carriage House shall
Defendants' motion for summary judgment be rehabilitated and the interiors converted
, was, therefore, granted unless plaintiff to residential use", for the Jay Mansion not
demonstrated at a plenary trial that the to exceed three units and for the Carriage
section prevented it from realizing any eco- House not to exceed six; that there be a
nomic benefit from its property. Plaintiffs trapezoidal view way 90 feet in width at
cross motion was denied. Plaintiff appeal- the rear of the Jay Mansion and 300 feet in
j; cd to the Appellate Division, as limited by width at the southerly property line; that
" its brief, from Special Term's order except the new dwelling units may not be occupied
,
, as to the section 1983 cause of action; de- until the exteriors of the Jay Mansion and
\
t feodants appealed from so much of that the Carriage House have been restored and
Co order as directed a trial on constitutionality the interiors converted to residential use
I and denied summary judgment declaring and available for occupancy and that a
the section valid and constitutional. The bond be posted to assure such rehabilita-
Appellate Division, 109 A.D.2d 814, 486 tiOD and conversion; and that the applica-
N.Y.S.2d 333, in a memorandum which re- tion for site plan approval be accompanied
1, ferred only to the zoning aspect of the by, among other things, a draft condomin-
:t ~ection, reversed and declared the section ium offering statement together with a
,
,
t "invalid as it constitutes an improper rego- draft of an easement andlor agreement for
{ lation of the form of ownership of proper- perpetual maintenance of the exteriors of
~~
" ty." (109 A.D,2d, at p. 815, 486 N,Y,S.2d the Jay Mansion and the Carriage House.
, 333.) We agree that it is unnecessary to Neither the statutes authorizing enactment
,
1 consider the constitutional issues and that of zoning provisions nor those dealing with
~ the zoning enabling provisions under which historic landmarks empower the City Coun-
,
~ the City acted do not authorize it to rego- cil to adopt a local law with such provi-
, late ownership, and hold further that noth- sions, nor does anything in the Landmarks
.~ ing in the historical preservation provisions Preservation chapter of the City Code sup-
., of the General Municipal Law or the Land- port its so doing.
, marks Preservation chapter of the City
t Code, upoo both of which the City relies, A
, whether considered separately or in con- [1-3] Zoning laws are to be given a
junction with the zoning enabling provi- strict construction because they are in der-
~
~
i
, . . r
i
324 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 115 66 N.Y.2
I
ogation of common-law rights (Matter of made with reasonable regard to the chane- I .Jl.7notes
440 E. 102nd St. Corp. v. Murdock, 285 ter of buildings erected in each district, the ! a differ,
N.Y. 298, 304, 34 N.E.2d 329; see, Matter value of land and the use to which it ....., propert)
of Frishman v. Schmid~ 61 N.Y.2d 823, be put, to the end that such regulations minium
473 N.Y.S.2d 957, 462 N.E.2d 134). More- may promote public health, safety and we~ ! with th
,
> over, there being no inherent power to en- fare and the most de8irable use for which I that the
;1 act zoning or land use regulation, an ordi- the land of each district nuiy be adapted or, if di
:; nance or local law provision for which legis- and may tend to conserve the value of f no indeJ
lative delegation of power cannot be found buildings and enhance the value of 1aud i it of sui
.
,~ is ultra vires and void (Matter of Kamhi v. throughout the city." (Emphasis supplied.) . which t
!
Planning Bd., 59 N.Y.2d 385, 465 N.Y.S.2d Nothing in that subdivision speaks 10 , owners~
865, 452 N .E.2d 1193). Power to adopt ownership rather than use, and while it ! Nor <i
provisions not expressly forbidden by the does not expressly forbid provisions re1a~ , contain~
enabling authorization may, however, be ing to ownership, the City suggests noth- i applicab
,
implied where there exists independent jus- ing within the spirit of zoning legislation \ such ju.
,
tification for provisions within the spirit of generally or this subdivision specif..uly Planninj
the enabling legislation (Collard v. /ncor- that offers justification for implying surh i sonable
porated Vii, of Flower Hil~ 52 N.Y.2d 594, power. Indeed, the cases are legion, in this provide,
~; 602, 439 N.Y.S,2d 326, 421 N.E.2d 818), State and elsewhere, whieh hold that "zoo- , land not
[4J The enabling provision for resi- ing . . . in the very nature of things has \ district
I
dential zoning in cities is General City Law reference to land rather than to owner" I what th
i' ~ 20(24). z That subdivision empowers a (Vernon Park Realty v. City of Moant \ Plannin,
city "To regulate and limit the height, bulk Vernon, 307 N.Y. 493, 500, 121 N.E.2d 517) i appropr
and location of buildings hereafter erected, and that it is a "fundamental rule that ~ rumce (,
to regulate and determine the area of zoning deals basically with land use and t N.Y.2d
yards, courts and other open spaces, and to not with the person who owns or occupies , N.E.2d
.
regulate the density o!w,population in any it" (Matter of Dezter v. Town Bd., 36 t town, 3
given area, and for said purposes to divide N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 ( ~-,'~- . the see
the eity into districts. Such regulations N.E.2d 870; accord, Matter of Weinrib.. cates 81
'. shall be uniform for each class of buildings Weisler, Z1 N.Y.2d 592, 313 N.Y.S.2d 40'1, deviatio
throughout any district, but the regulations 261 N.E.2d 406, aI/g. 33 A.D.2d 923, 307 upon aJ
in one or more districts may differ from N.Y.S.2d 603; Allen v. Town of N. Hemp- t accomrn
those in other districts, Such regulations stead, 103 A.D.2d 144, 146, 478 N.Y.s.2d houses I
shall be designed to secure safety from 919; North Fork Motel v. Grigonill, 93 j opment
fire, flood and other dangers and to pro- A.D.2d 883, 461 N.Y.S.2d 414; see, Matter f ownersl
mote the public health and welfare, includ. of Park W. Vii. A88oc. v. Abrams, 65 \ sions, tJ
,
ing, so far as conditions may permit, provi- N.Y.2d 716, 492 N.Y.S.2d Z1, 481 N.E.2d I implied
sion for adequate light, air, convenience of 567). Most of the out-of-State cases hold,
access, and the accommodation of solar en- as did the North Fork Motel case, that. !
ergy systems and equipment and access to zoning ordinance cannot be used to exclude ! [5] i
sunlight necessary therefor, and shall he a condominium.' The City correctly J of the ,
, exist, tI
2. Subdivision 25 authorizes regulation and re- (387 Mass, 351. 439 N.E,2d 788), Bridge Pari ,
striction of trades and industries and, therefore. Co. v. Borough of Highland Park (lIJ NJ.super, , the hist
!
- is not a source of power fot the local law under 219,273 A.2d 397): G,aham Ct. Assac. v. Town ,
consideration. In any event, it provides no Council (53 N.C.App. 543. 281 S.E,2d 418); '" , also re.
grealer support for Local Law No.5 than subdi- , has Re
McHenry State Bonk v. City of McHenry (lIJ ,-
vision 24, for it authorizes no more than control 1I1,App.3d 82. 68 1I1.De<. 615. 446 N,E,2d 521): , N,H.4
of where "buildings. designed for specific uses" . Cos.sel/,
Maplewood Vi! TenlUllS Assn. v. Maplewood Vi! I
may be located and of "the uses for which (116 NJ,Super. 372. 2S2 A,2d 42S); but suo na/d's .
buildings may not be erected or altered." Go/dman v. Town 01 Dennis (375 Mass. 197.375 t Zoning
3. City 01 Miami Beach v. Arlen King Cole Condo. N.E.2d 1212); Griffin Dev. Co. v. City 01 Oxnard , 4. The
miniurn Assn. (302 So.2d 777 [Fla], cerl cknied (39 Cal,Jd 256. 217 Cal.RplT. I, 703 P.2d JJ; I (~ 281:
308 So,2d I1S); CUR c;.", v. City 01 Newton [1985]). The general proposition is, however, , what I
i
~ .>' I
I
~','- ~ .'* . ,i, . ~:._;.... )' to,' . ..... ."'::"::~'~'. _Ii
,.. ,,,,,,,-,., ,., "- --,--"....." " ,,- , -,
-
, . .
.
~.....---................. .~ ':':";ij~J~,j\.i.iio,,;;,.r.. ,..." ;...,;..~.;"i,,,,: .;;,.-:;, ",,;,. "
"n-.J!o.'" ,,---, -..,."... "., .1
,-
66 N.Y.%d 118 FGL & L PROPERTY CORP. v. CITY OF RYE 325
Clte..49!N.Y.8.2cI32t (CLApp. 1985)
f .w,notes that exclusion of condominiums is tained in section 96-3 and article 5-K of
a different proposition than requiring that the General Municipal Law or the Land-
property in a given area be held in condo- marks Preservation provision of the Rye
minium ownership. However, we agree City Code (ch. 117).
with the Appellate Division's conelusion Section 96-a of the General Municipal
that the distinction is without a difference,
or. if difference there is, that there exists Law reads as follows: "In addition to any
no independent justification within the spir- power or authority of a municipal corpora.
it of subdivision 24's zoning provision from tion to regulate by planning or zoning laws
which the power to require condominium and regulations or by local laws and regu-
ownership can be implied. lations, the governing board or local legis.
Nor does General City Law fi 37, which lative body of any county, city, town or
village is empowered to provide by regu]a-
",ntains the cluster zoning authorization tions, special conditions and restrictions for
applicable to cities such as Rye, provide the protection, enhancement, perpetuation
such justification. Under its provisions the and use otJ..l1aplaces, districts, sites, build-
Planning Board is authorized to make rea-
sonable changea in the zoning regulation, ings, structures, works of art, and other
provided that the average density of the objects having a special character of special
iand not be greater than is permitted in the historical or aesthetic interest or value.
dl,triet in which the land lies. Although Such regulations, special conditions and re-
what the legislative body can authorize its strictions may include appropriate and rea-
Pianning Board to do, it can do itself by sonable control of the use or appearance of
appropriate amendment of its zoning ordi. neighboring private property within public --
nance (see, Cummings v. Town Bd" 62 view, or both. In any such instance such
N,Y,2d 833, 834, 477 N.Y,S.2d 607, 466 measures, if adopted in the exercise of the
N.E,2d 147; RodgertJ v. Village of Tarry. police power, shall be reasonable and ap-
toum, 302 N,Y. 115, 123, 96 N.E.2d 731), propriate to the purpose, or if constituting
the section contains nothing which indi. a taking of private property shan provide
cates an intention to do more than allow for due compensation, which may include
deviation from fixed dimensional zoning the limitation or remission of taxes." Arti-
upon application of the owner in order to cle 5-K is broader in scope, covering histor-
lcoommodate group houses, apartment ic preservation not only by regulation but
}lOuses or stores.4 Power to require deve]. by governmental acquisition as well. See-
opment of a 22-acre parcel in condominium tion 119--bb(4) defines "historic preserva.
ownership cannot be implied from its provi. tion" to mean ufar the purposes of this
!.ions, therefore, any more than can it be article and notwithstanding any other pro-
implied from General City Law fi 20(24). vision of law, the study, designation, pro-
tection, restoration, rehabilitation and use
B of buildings, structures, districts, areas,
[5] Authority to enact section 197-13,2 sites or objects significant in the history,
of the Code of the City of Rye does not architecture, archeology or culture of this
..is~ therefore, unless it can be found in state, its communities, or the nation." The
the historical preservation provisions con- operative provisions of the article are con-
also recogni7.ed in noncondominium cases (Vla- materia (see. Delaware Midland Corp. v. fncor.
~(.Il Realty Co. v. Utile Boars Head nist.. 101 porated Vii. of Westhampton Buch. 39 N.Y.2d
N.H. 460, 146 A.2d 257; County of Fayette v. 1029. 3S7 N,Y,S,2d 248. 355 N.E.2d 302, .lfg on
Cou~lL 60 Pa.Commw. 202. 430 A.2d 1226: Fer- opn at Sp#!cial Term 79 Misc.2d 438, JS9 N.Y.
""ld's AppeIlL 17 Pa D &: C 2d 291; Olevson v. S.2d 944), the City's authority is not enhanced.
lcning &1,. 71 R.I. 303. 44 A,2d 720), for both speak to the "development of land in
.. The cluster provisions of the Town Law such a manncr as 10 promote the most appropri.
(~ 280 and the Village Law (!i 7-738) nre some- ate use of land".
,.,-hat mor~ detailed. but even if read in pari
-
. .
326 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N. Y.2d 118
tained in section 119-dd, which is set forth of the Jay Mansion and the Carriage
in full in the margin,> House, proscribe the use of any new dwell.
.lJ,1.0f importance to the present issue is ing unit until that has been done, thus
the fact that the regulation, special condi- effectively requiring that the cost of reha.
tion or restriction by which section 119- bilitation be shared by owners in the w.-
dd(l) authorizes control of private property trict of units other than the Jay Mansion
is "for the protection, enhancement, perpet- and the Carriage House, and by dictating
uation and use of places, districts, sites, condominium ownership of the entire dis-
, trict impose the cost of maintenance of the
i' buildings, structures". Nothing in the sub-
( division speaks to regulation of ownership. exteriors of the Mansion and the Carriage
Noteworthy also is the fact that though House upon owners of such units as well,
section 119-bb(4) refers to "restoration" The right to impose reasonable controls
and "rehabilitation", those words are not to on the use and appearance of neighboring
be found in section 119-dd(l), presumably private property within public view, given
because it was intended to permit a munici- by General Municipal Law if 96-a and
pality acting under section 119-dd(3) after 119-dd(l), cannot be stretched to cover pay.
acquisition of a fee or lesser interest to ment of restoration and maintenance costa,
restore and rehabilitate historic buildings for such a construction, which would im-
and sites, but not to permit the municipali- pose those costs upon every unit in the
ty to impose an obligation to restore or district, not just those "within public view/'
rehabilitate such buildings or sites as re- would render meaningless the limitation in.
main in private ownership. Here the Code tended by those words which appear in
sections creating the Alansten Landmarks both sections. Yet there is DO question
Preservation District not only mandate that that such was the Council's intention, for
the entire 22-acre district remain in single its findings with respect to the final envi-
ownership but also impose upon the devel- ronmental impact statement flatly stated,
oper the duty of rehabilitating the exteriors that "[o]nly under [condominium] o",ner-
s. The section, entitled "Local historic preserva. otherwise, acquire the fee or any lesser interest.
tion programs." reads as foHows: development right, eas.=mem. covenant or other
"In addition to existing powers and authori- contractual right necessary 10 achieve the pur.
ties for local historic preservation progr3ms in- poses of this article, to hisaorical or cultural
cluding existing powers and authorities to regu- property within its jurisdktioo. After acquisi.
late by planning or zoning laws and regulations tion of any such interesl pursuant to this subdi.
or by local laws and regulations for preserva- vision, the effect of the acquisition on the valua.
tion of historic landmarks and districts and use tion -placed on any remaininc private interest in
of techniques including transfer of development such property for purposes of real estate taxa.
rights, the legislative body of any county, city, tion shall be taken into accouaL
town or village is hereby empowered to: "4. Designate, purchase. restore, operate,
"I. Provide by regulations, special conditions lease and sell historic bui1cfi.o&:s or structures.
and restrictions for the prot~ction, enhance- Sales of such buildings and structures shaH be
ment, perpetuation and use of places, districts, upon such terms and coodilions as the local
sites, buildings, structures, works of art and legislative body deems appropriate to insure the
other objects havi.ng a special character or spe.-
cial historical. cuhural or aesthetic interest or maintenance of the historic quality of the build.
value. Such regulations, special conditions and ings and structures, after public notice is appro-
restrictions may include appropriate and rea. priatdy given at least thirty days prior to the
sonable control of the use or appearance of anticipated date of availability and shall be for
neighboring private property within the public fair and adequate consideration of such bl.&ild.
view, or both. iogs and structures which ill no event shall be
"2, EstabUsh a landmark or historical preser- less than the expenses inc:urn:d by the munici.
vation board of commission with such powers pa1ity with respect to such buildings and struc.
as are necessary to carry out all or any of the tures for acquisition, restoration, improvement
authority possessed by the municipalil)' for a and interest charges.
historic preservation program, as the loullegis- "5, Provide for transfer of developmenl
lati\'e body deems appropriate. rights for purposes consistent with the purpOSeS
"3, After due notice and pubUc hearing, by of this miele,"
purchase, gift, grant, bequest, devise, lease or
~I,
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',' ~ ~
-
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'" ".",,,,,,,, "'''''''I~''.'..''._.'''''''''." ".
66 N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE 327
Clt...495N,Y.s.zd.321 (CLApp. 1985)
.hip can the cost of maintaining the exteri- out violating the Constitution, nor need we
ors of the historic buildings be shared reach the question whether as applied to
..lJIoby all the homeowners", and that theme plaintiffs property section 197-13.2 is con-
i. repeatedly emphasized in the City's brief stitutional. We hold rather that in light of
to this court. While that may be true, the well-recognized rule that statutes are
clearer authorization to enact such provi- to be construed so as to avoid constitution-
.ions than are contained in the General al issues if such a construction is fairly
Municipal Law sections referred to is es- possible (Matter of Peters IJ. New York
.ential before section 197-13.2 can be up- City Houa. Auth., 307 N.Y. 519, 527-528,
held against the argument that it was be- 121 N .E.2d 529; see, People IJ. Fel/$, 58
yond the City's power to enact. N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446
Noteworthy also, in view of the require- N.E,2d 757; McKinney's Cons,Laws of
ment that the Mansion and Carriage House N.Y., Book I, Statutes ~ 150), the General
be completely restored before any other Municipal Law sections under consideration
unit can be occupied is the absence from as presently written should be construed
not to authorize imposition of restoration
the General Municipal Law sections of au- costa solely upon plaintiff and purchasers
thority to require restoration, as distinct from plaintiff or maintenance costs upon
from maintenance. Landmark and historic purchasers of properties other than those
preservation laws normally prevent altera- to be preserved.
tion or demolition of existing structures
unless the owner can demonstrate hardship C
(Penn Cent Tramp. CO, IJ. City of New In view of the distinctions between zon-
York, 42 N.Y.2d 324, 330, 397 N.Y.S.2d ing regulation, historic district regulation '~-._'-
914,366 N.E.2d 1271, affd. 438 U.S. 104,98 and landmark regulation recognized in
S,Ct, 2646, 57 L.Ed.2d 631), but if they Pen'!JJ.21 Cent Transp. Co. v. City of New
place an undue and uncompensated burden York, 42 N.Y.2d, at p. 330, supra, 397
on the individual owner may be held uncon- N.Y.S.2d 914, 366 N,E.2d 1271, we note
stitutional (Lutheran Church in Am. IJ. that chapter 117 of the Rye City Code deals
City of New York, 35 N.Y.2d 121, 129, 359 with landmarks preservation and is re-
N,Y.S.2d 7, 316 N.E.2d 305) because "it ferred to in section 197-13,2(C)(1). As
forces the owner to assume the cost of chapter 117 read when the Alansten Pres-
providing a benefit to the public without ervation District section was enacted, land-
recoupment" (French Investing CO. IJ. City mark designation required the property
of New York, 39 N.Y.2d 587, 596, 385 N.Y. owner's consent, but effective December 7,
S,2d 5, 350 N.E.2d 381; see, Dunham, A 1983, chapter 117 was amended to remove
Legal and Economic Basis For City Plan- the consent requirement and provide for
.i.g, 58 Colum,L.Rev. 650, 665), Here, landmark designation by the City Council
society at large bears no part of the cost of alone,' and effective July 18, 1984, the
re.toration, it is rather to be borne initially Alansten 22.acre site and the exteriors of
by plaintiff and ultimately by the purchas- the Jay Mansion and of the Carriage House
ers of dwe11ing units within the district. were designated as protected. Nothing in
Yet the City's expert appraiser agreed that that designation or in the provisions of
restoration costs of approximately $627,000 chapter 117, which concern only mainte-
ror the Jay Mansion and $588,000 for the Dance of a landmark and the circumstances
Carriage House would be required. under which it can be demolished, provides
We do not hold that the General Munici- support for the provisions of section 197-
pal L"w sections could not be drafted to 13.2 requiring that the Alansten property
impose restoration costs on an owner with. be held in single ownership in condominium
6. On June 18. 1984, the Alansten 22-acre plot before Supreme Court. Westchester County, in a
\\'tI.S so designated. The constitutionality of the declaratory judgment action entitled DGM Part.
amended version of the chapter is awaiting trial nen-Rye v. City of Rye.
.,:.'
. . .
'.
- .
328 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N. Y.2d 121
form or the imposition of restoration, as er to add request for reductions in unpro-
distinct from maintenance, costs upon the tested assessments on improvements.
property owner and ultimately upon pur- Affirmed.
chasers of dwelling units within the dis- Wachtler, CJ., filed dissenting opinion
met. in which Meyer and Kaye, JJ., concurred.
For the foregoing reasons, the order of
the Appellate Division deelaring Rye City Taxation 4=493.7(1)
Code ~ 197-13.2 invalid is affirmed, with
costs. Court was without authority to grant
amendment to petitions alleging error in
" assessed value of land only, based on pro-
WACHTLER, CJ., and JASEN, SI- tests similarly limited, to permit taxpayer
~; MONS, KA YE, ALEXANDER and TI- to add request for reductions in unprotest-
" TONE, JJ., concur.
ed assessments on improvements.
Order affirmed, with costs.
" ..J.i.23Adolph Koeppel, Anne J. Del Casino
o ~ I(Y IUIJIIIIUYSTU4 and Donald F. Leistman, Mineola, for ap-
T pellant.
Edward G. McCabe, Co. Atty. (Joshua A, i
Elkin, Mineola, of counsel), for respon. :
dents. !
I
485 N.E.2d 993 ,
66 N,Y.2d 122 ~OPINION OF THE COURT I
. SIMONS, Judge.
..lI,22ln the Matter of STERLING .
ESTATES, INC., Appellant, Petitioner is the owner of real property I f
in Valley Stream, New York, known as tii.- 'j G
v.
Green Acres Shopping Center. It has insti- s
BOARD OF ASSESSORS OF the toted several proceedings pursuant to Real !, .I
COUNTY OF NASSAU et al.. I
Property Tax Law article 7 seeking a re- I ;,
Respondents. duction in the land assessments on the sev. i )-
eral parcels making up the shopping cenwr [ A
Court of Appeals of New York. ~
\
property for the tax years 1967/1968 Tf
Oct. 24, 1985. through 1977/1978. In 1982 it moved to (,
amend the petitions requesting, along with }j
other relief, permission to allege error in l'
,
Taxpayer moved to amend petitions the asseased value of lots not previously ,
i
filed in tax certiorari proceedings to in- protested and in the assessed value of im. \
! pI
crease amount of claimed reductions on provements on lots that had been protest. . ii,
.
basis that assessments were unequal, ex- ed. Special Term denied that relief, hold. i ..w
I
cessive, or otherwise vaJid. The Supreme ing that it lacked jurisdiction to permit I so
Court, Nassau County, Farley, J., denied amendment of the petitions to add a chal. . m
,
motion, and taxpayer appealed. The Suo lenge to lot or improvement assessments jJt.
preme Court, Appellate Division, 104 which had not been protested previously w,
A.D.2d 599, 479 N.Y.S.2d 381, affirmed. during the statutory period for administra. su
On appeal by permission of the AppeJlate tive review. The AppeJlate Division sf, \: se
Division, the Court of Appeals, Simons, J., firmed, with one judge dissenting (104 , la,
held that Court was without authority to A.D.2d 599, 479 N.Y.S.2d 381). On this I bl,
I int
grant amendment to petitions alleging e1"" appeal petitioner presses only the court's I
ror in assessed value of land only, based on ruling denying amendment to add a chal. j ha
protests similarly limited, to permit taxpay- lenge to the assessed value of the improve- f pu
I
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'~, !~,J"..,..Ilc . ,,~,,:,':' '~"":-" ,W:""',~,'~'" _ ,,:"',;~i;.oIo;;;';~:';'-{;'.~I;;""':"''''':,r'',''';'''.'.'''''''''''.'''''''....~ .;;'-~~;Wf'.
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, SUMMIT SCHOOL v. NEUGENT 77
i; CIte... App.1IIY. 442 N.Y.8.2d 73
! \ ."... ~ u. ....... w"" ~ '" ..J>- ochool, the details of the operation of the
!
t: ject of the special permit (Matter of Com- educational processes of the institution, and
1 munity Synagogue v. Bates, 1 N.Y.2d 445, also equally improper and beyond its power
,
,
, 154 N.Y.S.2d 15, 136 N.E.2d 488; Matter of to impose such conditions, as here, by an
i Schlosser v. Michaelis, 18 A.D.2d 940, 238 agreement with the applicant.
!~ N,Y.S.2d 488; Matter of Oakwood Is. Yacht [6] To the extent that appellants may
Club v. Board of Appeals, 32 Misc.2d 677,
22:1 N.Y.S.2d 907; Matter of Long Is. Light. be properly precluded by a prior waiver of a
Co. v. Voehl, 2r1 Mioc.2d 943, 211 N.Y.S.2d statutory or constitutional right to chal.
576, affd. 15 A.D.2d 512, 222 N.Y.S.2d 589; lenge the official action of the municipality
\ I Matter of De Ville Homes v. Michaelis, in relation to zoning, such waiver is ineffec-
tual to foreclose such attack where the
Sup" rol N.Y.S.2d 129; Bernstein v. Board right concerns a matter of public policy (see
of Appeals, Vii. of Matinecook, 60 Misc,2d Brous v. Town of Hempstead, 2r12 App.Div.
I 470,302 N.Y.S,2d 141, app. dsmd. 31 A.D.2d 31, 69 N,Y.S,2d 258).
I 650, 297 N.Y.S.2d 702, mot. for lv, to app.
~ I den. 23 N.Y.2d 646, 299 N.Y.S.2d 1025, 247 By their agreement, the appellants have -~J1
~ "-- N,E.2d 498). effectively waived all objections to the
! Where, as here, the special permit con. "conditions subsequent", except those under J'}
I which the municipality sought to assume
, tains specific conditions which have been - ~'<' ~
control over some aspects of the educational ~ :Ii
the subject matter of an agreemel1t be- ,
; process of the ochool, an effort for which it .~
j tween the Boan! of Appeals and the appli- was neither professionally equipped nor le-
I cant, such conditions must also pertain ex- gaily authorized to undertake.
elusively to the zoning use of the land and
! not to the details of the operation of the [7] Those "conditions subsequent"
! business to be thereon conducted, which, in which may intrude upon the educational
i ,/"-'..
; this case, concerns the teaching of handi- processes of the appellants, as opposed to :'f5~
!
j capped children with learning disabilities, their use of real property, are contrary to ,;;'!
pursuant to a constitutional mandate im- public policy and may not be the subject ;;~l
posed upon the State to "provide for the matter of a waiver.
maintenance and support of a system of Our inquiry is now focused upon many ~0~:~~,
free common ochools, wherein all the chil- clauses of the Uconditions subsequent" des- ;~:;P;;I'
dren of this state may be educated." (N,Y. ignated liD", which, for the reasons herein- '"":1:'.U
Const., art. XI, i 1; emphasis added.) below stated, suffer such infirmity. It is ;':~'-~iF.
[5] We are dealing here with a private there provided as follows: ~-'~f;}
school teaching enterprise, authorized and uD. Students will be under 18 years of ~~~i~
I operated under contract to carry out the age and will be limited to those with
State's obligation to provide education for so--caned 'Learning Disabilities'j regular : '; - ~., :'i
such handicapped children with learning educational classes will be held during the
disabilities, pursuant to article 89 (ii 4401- months of September through June, in-
I 4(09) of the Education Law, and it would elusive, on Mondays through Fridays, in-
. not only be contrary to "the strong public elusive, from approximately 9:00 A,M. to
,
~ policy of the State which favors the educa- approximately 4:00 P,M.; any athletic or
, tion of all children, however handicapped" recreational activities shall be of second-
l (Rogers v. Association for Help of Retarded ary importance and will be held either
j Children, 308 N.Y. 126, 132, 123 N.E.2d 806, indoors, or sufficiently distant from the
j emphssis added; Matter of Wiltwyck north and south boundaries of the proper-
, School for Boys v. Hill, 11 N.Y.2d 182,227 ty, both, to the end that neighboring
, N.Y.S,2d 655, 182 N.E.2d 268, supra), and owners will not, be disturbed by loud
,
,
i in excess of the legislative power conferred noise or otherwise; no summer camp or
. upon a municipality, to impose, as a condi.. vacation activities of any kind will be
~ tion of a special use permit for a private held or maintained at any time on the
,
.~
~
J - ,
-
. ...
.
,;,q."~~::.,,.';:~,;(;.
S P.O.K. RSA, 1Ne. VO VILLAGE OF NEW PALTZ 479
, 'at..0555 N.Y.8.2d 476 (A.D. 3 __ ,990)
{ecutive Law If 37~ plied) (Executive, Law former I 383, re- fies as multifamily dwellings, into condo-
, Multiple Residence pealed by 1.1981; ch., 707, I 12). miniuma, also considered multifamily dwell-
, c~rtificates of occu- ne certifica~ ot occupancY issued in con. ings. it goes beyond the Village's enabling
:es,'~enc~ ,Law f 302). nection with plaintiffs apartment complex authorization and therefore the local law is
unlClpahties to enact ,from ,1963, to .1969 . proclaim that the build- ultra vires and void (see, FGL & L Prop.
laws (Multiple Res!- ings "conform{ed] to, all of, the require- Corp. II. City of Rye, supra, 66 N.Y.2d at
, mentsof. the applicable provisions of the 115, 495 N.Y.S.2d 321, 485 N.E.2d 986; ,_
~he third cause of ..,. law" existing as of the date of issuance ' North Fork Moulv. Grigoni8. supm).
ts predicate that the (see, 4 Rathkopf, The Law of Zoning and , " , ' '
the power to enact Planning f 49.07. it' 4!H11)." Local Law 'MAHONEY, P.J., and MERCURE, J.,
'cause it contravenes No. 21 does 'DOt detract from that assur- concur.
ultiple Dwelling Law ance, for it requires the building inspector
<idence Law f 302(5) 'to detetmine if the structure meets current KANE. J., concurs in part and
rmer f 383. Undeni- building construction laws. Although the dissents in part in an opinion.
,t establish local laws already-promulgated certificates attest that Order modified, on the law, without
Ie State Constitution the complex m~ building'cod~ regulations costs. by reversing so much thereof as
/', defined as laws ~t at the time they were ISSUed, there denied plaintiffs motion for summary judg-
, all villages (N.Y. IS no guarante,e, that they meet today's ment; plaintiff granted summary judgment
3](c], [d][I]; Munici. standards (s"'" ,It,. at 49-38). For example, on its fl1'llt cause of action and defendant's
w f 10[1][iilaII2]). the N?w York BUIlding Code was repealed Local Law No. 21 declared ultra vires and
ue however is not effective January I, 1984. and replaced by 'void' and as so modified affl1'llled.
of these th;'" stat-, 'the current New York Uniform Fire Pre- '" ,,_,_
vention and Building Code Act, which be- ., .
came effective July 21, 1981 (1.1981, ch. . ~E, ~ustice (conCUlTUtg m part and
Dwelling Law and 707. If 12, 20). ,Local Law No. 21's re- diasentUtg 1ft part).
"w adverted to pro- quirementthat plaintiffs buildings now In respectfully dissenting, {'note my con.
n an individual pur- meet current building and f... regulations currence with the majority's reasoning as
,lIing relies on a pre- does not offend the Executive Law former to the merits of plaintiffs second and third
lte of occupaney, no f 383 guarantee. , causes of action. In my view, however, the
be sdvanced that the [5] Tlie~ hi ho*ever molrit to the com- ordinance is a legitimate exercise of the
rm to the provisions plaint insofar ~ the fl1'llt cause of action is Village's police power and I would. there-
rters of those laws cone.ml!d; for 8a plaintiff rightly at'ggests, fo,?, ~fl1'lll Supreme Court's dismissal. of
f the certifICate (....e. the Vill&ge dOOS Dot have the legislative plamtiffs fl1'llt and second causes of action.
v I 301[5]; Multiple power to reguJate the conversion of proper- "To be sure.. a Village ordinance enacted
5] ). These sections 'ty.. ownership 'which does not involve an under the pobce power must bear a reason.
the dwelling was not ' alteration in the owner's use of the proper- able connection to the public health, com-
lose Jaws when the ty. Municipalitiea hsve no inherent capaci. fort, safety and welfare" (D'Angelo II.
i; Local Law No. 21 'ty to rnandatethe manner in which proper- Cole, 67 N.Y.2d 65. 69, 499 N.Y.S.2d 900.
contrary. ty may be owned or held (FGL & L Prop. 490 N.E.2d 819; "e, Village Law
, Corp. II. City of Rye. 66 N.Y.2d 111, 113, f 4-412[1]). I agree with the majority
local law contradict 495 N.Y.S.2d 321. 485 N.E.2d 986). They that, absent a delegation of power, a vii.
I 383. That statute must acquire such power from the State. lage may not mandate the manner in which
',Absent such a delegation of power, a mu- property may be owned (see, FGL & L
'cate of occupancy 'nicipality cannot employ a zoning ordinance Prop. Corp. II. City 01 Rye, 66 N.Y.2d 111.
il set aside or vacat- to exclude or diacriminate against the con- 113, 495 N.Y,S.2d 321, 485 N.E.2d 986).
'eview or a court of dominium form of ownership (North Fork However, the clear legislative target of the
>n, be and remain Motel II. Grigoni8, 93 A.D.2d 883, 461 N.Y. ordinance at i8sue here is the eondition of
'e upon all8tate and 'S.2d 414). 'As Local Law No. 21 encumbers the property at the time of conversion, not
as to all matters ,sponsors' efforts to convert apartments. its form of ownership. The encumbrance
I nO order, direction which the Village zoning ordinance classi- directed at conversion is, in my view. inci-
variance therewith , ',' . .
ed b th . The certlflca... of occupancy Issued 10 plaintiff Execullve Law prov;,;on was repealed effec:tlve
su y any. 0 er In 1986. 1987 and 19S5 .... Irrclevanl for the In 1984 (1..1981. ch. 7fTT. U 12. 20).
ency (emphasIs sup- purposes of this aqumen, for the applicable
,,{ .
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ATTORNEY AT LA
828 FRONT STREET. P. 0, BOX 803 r~@~Oi\g~~1
GREENPORT. NY 11944
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15161477-1016 ~ J "'I M
January 8, 1991
Southold Town Board of Appeals
Southold Town Hall
Main Road
Southold, New York 11971
RE: APPLICATION OF MICHAEL CHOLOWSKY
Gentlemen:
Enclosed herewith please find Memorandum of Law with regard
to the subject application. ~-.~- .
If you have any questions, please feel free to
Very
JKM/lmt
enclosure
HAND DELIVER
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I APPLICATION OF MICHAEL CHOLOWSKY, "
TO THE ZONING BOARD OF APPEALS, MEMORANDUM OF LAW
il TOWN OF SOUTHOLD X
FACTS
This is an application to the Southold Town Zoning Board of
Appeals for a variance to the Southold Town Zoning Ordinance, Article
I
:, III, Section 100-31B(7)(c) concerning the proposed establishment.
II construction and operation of a golf driving range. a miniature golf
:1 course and bUilding with office accessory and incidental thereta. The
I subject premise( is known as 3340 Horton's Lane. Southold. New York.
I
, bears County Tax Map Parcel I.D. No. 1000-55-1-9 and contains 16.7%
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acres. Said property is owned by Lorinda C. Casola and the applicant
is the holder of a long-term lease thereon with an option to purchase.
Applicant has Qpplied to the Southold Town Building
Department for a building permit, but a Notice of Disapproval has been
issued, stating that the applicant requires both a special exception
and a variance. Section 100-31B(7)(c) states that any of the special
exception clubs and uses allowed within said Section ",. .shall not be
conducted far profit as a business enterprise." It is the applicant's
contention that the purported limitation of such special exception uses
to not-for-profit enterprises is clearly illegal and that a variance
should be granted allowing the applicant to conduct such a use as a
business enterprise for profit,
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LEGAL ARGUMENT i
Article 16 of the Town Law regulates zoning and planning by 1
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the various towns within the State of New York. Section 261 thereof I
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I' establishes the power granted to the towns bY the State of New York and I
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reads as follows: I
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For the purpose of promoting the health. safety.
I morals. or the general welfare of the community.
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i! the town board is hereby empowered by ordinance to
!! regulate and restrict the height. number of stories
':
, : and size of buildings and other structures. the
"
'i percentage of lot that may be occupied. the size of
I yards. courts. and other open spaces. the density
I of p~ulation, and the location and use of
buil ings, structures and land for trade, industry.
I residence or other purposes; provided that such
il regulations shall applY to and affect only such
!I part of a town as is outside the limits of any
incorporated village or city; provided further.
Ii that all charges and expenses incurred under this
,I article for zoning and planning shall be a charge
upon the taxable property of that part of the town
outside of any incorporated village or city. The
town board is hereby authorized and empowered to
make such appropriation as it may see fit for such
charges and expenses, provided however. that such
appropriation shall be the estimated charges and
expenses less fees, if any, collected. and
provided. that the amount so appropriated shall be
assessed. levied and collected from the property
outside of any incorporated village or city. Such
regulations may provide that a board of appeals may
determine and vary their application in harmony
with their general purpose and intent. and in
accordance with general or specific rules therein
contained.
Nowhere in said section is there any grant of power to
II regulate the form of ownership of property within the context of the
zoning and planning authority of a town. In fact. cases are legion
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Ii that such a power to regulate the form of ownership does 'not and cannot
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ii exist. Indeed, it is a fundamental rule that zoning deals basically
II with land use and not with the person who owns or occupies it. (See
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" Matter of Dexter V. Town Board, 36 N.Y. 2d 102, 105, 365, N.Y.S 2d 506,
324 N.E. 2d 870; accord, Matter of Weinr1b V. W1esler, 27 N.Y. 2d 592,
I 313 N.Y.S. 2d 407, 261 N.E, 2d 406, Affg 33 A,D. 2d 923, 307 N.Y.S. 2d
I
! 603; Allen V. Town of North HemDstead, 103 A.D. 2d 144, 146, 478, i
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i N,Y.S. 2d 919; North Fork Motel V. Gr1aon1s, 93 A.D. 2d 883, 461 N.Y,S. I
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I 2d 414; ~, Matter of Park W. ViI Assoc, V, Abrams, 65. N.Y. 2d 716,
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,
,
I 492 N.Y.S. 2d 27, 481 N.E. 2d 567), Annexed hereto are copies of the
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I North Fork Motel V, Gr1Qonis and FGL&L ProDertv CorD. V, Citv of Rve
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i decisions.
It is absolutely clear and certain from the foregoing cases
that the attempt in Section 100-31B(7)(cJ of the Zoning Code to
restrict the allowable special exception uses to not-far-profit
entities is a legal nullity, As expressed in all of those cases, it is
use rather than form of ownership that is the proper concern and focus
of zoning and planning regulations. The decisions of all levels of
courts in this State, including the Court of Appeals (the highest level
court in this State) are uniform in holding that a zoning ordinance may
I not regulate the form of ownership of property, as distinguished from
regulating the use of said property,
II
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CONCLUSION
The Southold Town Zoning Board of Appeals should grant the
requested variance to allow the applicant to establish, construct and
operate a golf driving range, miniature golf course and building with
accessory office thereto under any form of ownership, including a
business enterprise for profit, which said applicant deems appropriate, .
RespectfullY submitted,
J, KEVIN MCLAUGHLIN
Attorney for Applicant, Michael
Cholowsky
828 Front Street, PO Box 803
Greenport, New York 11944
(516)477-1016
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414 461 NEW YORK SUPPLEMENT, 2d SERIES 'I
Wickham, Wickham & Bressler, P.C., 93 A.D,2d 883 Smith,
Mattituck (Eric J. Bressler, Mattituck, of '" Yakab,
counsel), for appellant. NORTH FORK MOTEL, INC~ Riverhea<i
Posner & Posner, Mount Vernon (Linda Respondent, , Eaaeks,
S. Jamieson, Mount Vernon, of counsel), for v. " head (St.
William Sirignano, receive....respondent. Charles GRlGONlS, Jr~ et al., eonatituting eounaeJ), I
Before GIBBONS, J.P., and GULOTI'A, the Zoning Board of Appeals of the Before
O'CONNOR and NIEHOFF, JJ. Town of Southold et al., Appellant.. BRACKE
MEMORANDUM BY THE COURT. Supreme Court, Appellate Division,
In an action, inter alia, for a declaratory Second Department. MEMO,
judgment to determine the ownership of a In aCI
publishing house, defendant appeals from April 25, 1983. peal is fr
an order of the Supreme Court, Wealches- Court, Su
ter County, entered September 9, 1982, which an:
which, upon the respondent receiver's mo- Town zoning board of appeals appealed inspectors
tion to punish him for contempt of a prior from a judgment of the Supreme Court, Hindermn
.J order of the same court, adj udged him in Suffolk County, Gerard, J., which annulled December
,
() eontempt and permitted him to purge him- determinatiolUl of building inspectors and a terminati,
. ~t
,~ self thereof by, inter alia, rendering an determination of the zoning board of ap. of the T.
". account. peals which denied applications for permis- 1981, whi
:'i for, permi
Ord,. reversed, without costs or disburse- sian to change the form of ownenhip of
", ments, and matter remitted to Special Term certain premises. The Supreme Court, Ap. ership of
,I: for further proceedings consistent herewith. pellate Division, held that special term cor- Judgm.
'...."
:;~: [1,2] The record before this court fails rectly concluded that the conversion of bursemcn
~~;} ownership of tbe subject property from a
:} to indicate whether defendant was ad- --'. [1. 2]
, judged guilty of civil or criminal contempt, corporate form to a condominium form was
,. played b)
','.
'::~' and at the hearing which must be conduct- not violative of the town zoning ordinan<:e miniums
" ed, the course being pursued must be made provided the property's use as a motel re- minium J
" clear. Adjudging defendant to be in cr1mi- mained unchanged.
..j rather th
".1' nal contempt is not warranted on this reo-
,.Affirmed. proper c.
ord, as there is no finding that the alleged planning
disobedience of the prior order of the court Map/ewo<
was willful, and similarly an adjudication of 1. Zoning and Planning -72 wood Vii,
civil contempt is not warranted because Bridge I
there is no finding that defendant's actions Zoning ordinances cannot be employed Park, 11:
'were calculated to or actually did defeat, by a municipality to exclude condominiums Nor docs
- impair or prejudice the rights and remedies or discriminate against condominium form ownershiI
of the plaintiff (see Matter of Ross v. She.... of ownership, for it is use rather than form valid exh
wood Diversified Servs., 88 A.D.2d 936, 450 of ownership that is proper concern and of .U iami
.. . N.Y.S.2d 872). focus of zoning and planning regulations. minium'
Also, defendant denied that he had failed McKinney's Town Law ~ 261. Court k
to turn over any assets of Queens House, as 2. Zoning and Planning "'76" ' ' Chapel I
was alleged by the receiver. Questions of (18). A,
, fact were raised on that and other issues Special term' correctly concluded that conclude<
11 that could not be resolved without a hear- conversion of owncrship of property from of the s,
" ing (see Crisona v. Eastern Props. Improve- corporate form to condominium form was form to a
"
, ment C<irp., 27 A.D,2d 717, 717-718, 277 not violative of town zoning ordinance p.... of the z
,
:\~ N.Y.S.2d 477; Kamen v. Kamen, 13 A.D.2d vided property's use as a motel remained Southold,
985,216 N.Y.S,2d 715). unchanged. McKinney's Town Law ~ 261 use as a
,
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MEDARIS v. VOSBURGH 415
Oteu4lIN.Y.s.2d41S (A.D.ZDepL 1983)
Smith, Finkelstein, Lundberg, Crimmins 93 A.D.2d 882
'" Yakaboski, Riverhead (Frank A. Isler,
., Riverhead, of counsel), for appellants, Virginia C. MEDARIS, Respondent,
Esseks, Hefter, Cuddy & Angel, River- v.
head (Stephen R. Angel, Riverhead, of Lee Frederick VOSBURGH, et
ituting , .ounsel), for respondent. al. Defendants.
,
of the TIerore MANGANO, J.P., and GIBBONS,
'Ilants. BRACKEN and NIEHOFF, JJ. Bruce Robert Heinzen et al., Appellants.
rm, , Supreme Court, Appellate Division,
MEMORANDUM BY THE COURT.
.. Second Department.
In a CPLR article 78 proceeding, the ap-
peal is from a judgment of the Supreme April 25, 1983.
Court, Suffolk County, entered July 1, 1982,
which annulled determinations of building
",alcd inspectors George H. Fisher and Edward F. In medical malpractice action to recov.
~ourt, Hinderman, dated February 13, 1980 and er damages for pet'90nal injuries, plaintiff
lUlled December 22, 1980, respectively, and a de- refused to answer certain interrogatories
,"d a tcnnination of the Zoning Board of Appeals propounded by defendant. The Supreme
rap- or the Town of Southold, dated June 25, Court, Suffolk County, McCarthy, J., denied
rmis- 1981, which denied petitioll&'s applications defendant's motion to compel answers to
;1> of ror, permission to change the form of own- interrogatories, and defendant appealed,
,Ap- ...hip of certain premises. The Supreme Court, Appellate Division, "---
cor- ,Judgment affirmed, without costs or dis- held that trial court erred in denying de-
" of bursements. fendant's motion to compel on basis that
'm a [1,2] Zoning ordinances cannot be em- interrogatories did not ask for facts but for
was ployed by a municipality to exclude conde- opinions and amplifications of allegations of
:LnCC minitlms or discriminate against the conde- negligence, especially where plaintiff had
I re- Minium form of ownership, for it is use failed to make timely motion to strike chal-
rather than form or ownership that is the lenged interrogatories.
proper concern and focus of zoning and Order reversed; motion to compel an-
planning regulations (see Town Law, ~ 261; swers granted.
Maplewood Vii. Tenants Assn. v. Maple-
trOOd Vii., 116 N.J.Super. 372, 282 A,2d 428;
'yed Bridge Park Co. v. Borough of Highland 1. Pretrial Procedure -284,305
Park, 113 N.J.Super. 219, 273 A.2d 397).
Ims )lor does the mere change in the type of In medical malpractice action, trial
,rm o...e",hip result in the destruction of a court erred in denying defendant's motion
'nn "lid existing nonconfonning use (see City to compel plaintiff to answer interrogate-
lDd or Miami Beach v. Arlen King Cole Condo- ries on basis that such interrogatories did
"9. minium Assn" 302 So.2d 777 [Fla.]; Graham not ask for facts but for opinions and ampli-
Court Assoc. v. Town Council of Town of fications of allegations of negligence, ...pe-
Chapel Hill, 53 N .C.App. 543, 281 S.E.2d dally where plaintiff had failed to make
US), Accordingly, Special Term correctly timely motion to strike challenged interrog-
,at " ",ncluded that the conversion of ownership atories. McKinney's CPLR 3101(a), 3124,
'm or the subject property from a corporate 3131, 3133(a),
:IS . fonn to a condominium form is not violative
C>- or the zoning ordinance of the Town of 2. Pretrial Procedure -242
-.1 ~.thold, provided the property's present Purpose of interrogatories is distinct
,I. 'lit as a motel remains unchanged. from that of bill of particulars; while inter-
(
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.
FGL & L PROPERTY CORP. v. CITY 0.' RYE 333
Cite.. 486 N.Y.s.2d 333 (04..0.2 Dept. 198.11I)
N.Y,2d 942, 298 N.Y.S.2d 724, 246 N,E.2d miniums, was invalid, since it constituted
527), improper regulation of form of ownership "
of property.
w 3. Zoning and Planning e=>61
o ~knM\llflIIBysn"
T ,Municipality does not have power to
regulate manner of ownership of legal es-
tate, as it is use rather than form of owner-
109 A.D.2d 814 ship that is proper concern and focus of
FGL & L PROPERTY CORP., zoning and planning regulations.
Appellant-Respondent,
v. Weil, Gotshal & Manges, New York City
The CITY OF RYE. et al., (Peter Gru.nberger, Lesley E, Goldberg
Respondents-Appellants. and Robbie Narcisse, New York City, of
Supreme Court, Appellate Division, counsel), and Berger, Steingut, Weiner,
Fox & Stern, New York City (Theodore S.
Second Department. Steingut, New York City, of counsel), for
March 18, 1985. appellant-respondent (one brief filed).
Richard M. Gardella, Corp. Counsel, Rye,
Action was brought seeking to have for respondents-appellants.
declared unconstitutional an ordinance Meighan & Neearsulmer, Mamaroneck
which purported to cr.ate new zoning disc (Garrison R. Corwin, Jr., Mamaronick, of
trict, applicable only to one person's 22- counsel), for friends of Marshlands, Inc.
acre lot, and which directed that purported and Federated Conservationists of West-
district be maintained in single ownership chester County, Inc., amici curiae.
and that any development of property be Before LAZER, J,P" and MANGANO,
limited to residential condominiums. The BRACKEN and NIEHOFF, JJ.
Supreme Court, Westchester County, John
C. Marbach, J., denied injunctive relief MEMORANDUM BY THE COURT,
against enforcement of ordinance pending In an action, inter alia, for a judgment
hearing to determine if ordinance was con- declaring Rye City Code ~ 197-13,2 invalid
fiscatory, and appeal was brought. The and unconstitutional, plaintiff appeals, as
Supreme Court, Appellate Division, held limited by its brief, from so much of an
that ordinance was invalid since it consti. order of the Supreme Court, Westchester
tuted improper regul,tion of form of own- County, entered March 5, 1984, as denied
ership of property. injunctive relief against the enforcement of
Reversed. that section of the city code pending a
hearing to determine if said seetion was
1. Zoning and Planning e=>1 confiscatory with respect to plaintiff's
property, and defendants cross.appeal from
Zoning is eoncerned with use of land, so much of the same order as denied their
and not with person who owns or occupies motion for summary judgment declaring
it, said section of the city code valid,
2. Zoning and Planning e=>61 Order reversed insofar as appealed from,
Ordinance which purported to create on the law, with costs, the second and third
new zoning district, applicable only to one decretal paragraphs ther.of are deleted,
person's 22-acre let, and which directed and it is declared that Rye City Code
that purported district be maintained in ~ 197-13,2 is invalid a.. it constitutes an
single ownership and that any development improper regulation of the form of owner.
of property be limited to residential cond<>- ship of property,
,
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334 486 NEW YORK SUPPLEMENT, 2d SERIES
The ordinance in question purports to In light of our determination, we do not
create a new zoning district, applicable only reach the other issues.
to plaintiffs 22.acre lot. The ordinance
further directs, among many other things, w
that the purported district must be main- o ~.U'''UMI(.'nuM
tained in single ownership, and further pro- T
vides that any development of the property, 109 A,D.2d 815
which is severely restricted, be limited to FIRE ISLAND PINES, INC.,
residential condominiums. Respondent,
[1] As a fundamental principle, zoning v.
is concerned with the use of the land, and COLONIAL DORMER
not with the person who owns or occupies
it (see, e,g" Matter of Dexter v, Town Bd. CORP., Appellant.
of Town of Gates, 36 N,Y.2d 102, lOS, 365 Supreme Court, Appellate Division,
*- N,Y,S.2d 506, 324 N.E,2d 870; Matter of Second Department,
Weinrib v. Weisler, 33 A.D.2d 923, 307 March 18, 1985.
N,Y.S,2d 603, afld. 27 N.Y.2d 592, 313 N,Y.
r'" S.2d 407, 261 N.E.2d 406; North Fork Mo-
",,
'~"'':' Default judgment was entered against
t''- tel v, Grigonis, 93 A.D,2d 883, 461 N.Y.
,F roofing company in action for damages al.
~ S.2d 414; Allen v. Town of North Hemp.
stead, 103 A.D.2d 144, 478 N.Y,S,2d 919). legedly resulting from defective work,
[2,3] The instant ordinance, which pur- The Supreme Court, Nassau County, John
ports to direct how the property may be W. Burke, J., denied roofing company's ma-
held to the exclusion of all other forms of tion to vacate, ..nd it appealed. The Suo
ownership, must fail because, as a general preme Court, Appellate Division, held that
principle, a municipality does not have the where complaint was properly forwarded to --~..
power to regulate the manner of ownership insurer, which neither filed an answer nor
of a legal estate, as "it is use rather than denied coverage, roofing company was enti.
form of ownership that is the proper con. tied to have resulting unintentional default
cern and focus of zoning and planning reg- judgment vacated, particularly in light of
ulations" (North Fork Motel v. Grigonis, evidence of meritorious defense, and ab-
supra; see also McHenry State Bank v, sent claim of prejudice by opposing party,
City of McHenry, 113 m,App.3d 82, 68 Order re:versed; motion to vacate
m.Dec, 615, 618, 446 N ,E.2d 521, 524; CHR granted.
Gen., Inc, v, City of Newton, 387 Mass.
351, 439 N.E.2d 788, 791; Bridge Park Co. Judgment =143(3)
v, Borough of Highland Park, 113 N,J,Su, Where insured roofing company for,
per, 219, 273 A,2d 397, 399; County of warded complaint alleging defective work
Fayette v, Cossell, 60 Pa.Cmwlth, 202, 430 to its insurer through broker, broker as-
A.2d 1226, 1228; Graham Ct, Assoc, v, sured roofer that insurer would provide
- Town Council of Town of Chapel Hill, 53 defense, and insurer neither filed answer
N .C,App, 543, 281 S.E,2d 418), Although nor diselaim~ coverage, roofer was anti-
in the majority of the above cases the gen- tled to have resulting unintentional default
eral principle was invoked to prevent a judgment vacated, particularly in light of
municipality from excluding the condomin. affidavits demonstrating meritorious de-
ium form of ownership, and here the in- fense, and absent claim of prejudice by
stant ordinance permits that form of own. opposing party,
ership to the exclusion of all others, the
result is the same. The city here has at.
tempted to dictate how property may be Jay Berlin~r, Masaapequa, for appellant.
owned, and that is exactly what it is not Harold F, Damm, Mineola, for respon.
authorized to do, dent.
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J.,...",.;."..'
:.2d lOR 66 N.Y.2cI 111 FGL & L PROPERTY CORP. v. CITY OF RYE 321
ctte..495N.V.5.'cU" (etA... ,m)
n there- (61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 485 N.E.2d 986
'1.t uany N.E.2d 15 [absent exercise of discretion by 66 N.Y.2d 111
the Appellate Division so egregious aa to
ce due amount to an abuse of discretion as a mat- .J1,uFGL & L PROPERTY
~ums." ter of law, its exercise of discretion is not CORP.. Respondent,
he tern.
") and reviewable by us]). The factors listed by v.
periods the Appellate Division as the basis for its CITY OF RYE et al.. Appellants.
n. The reduction of the award to 25% make clear Court of Appeals of New York.
;~r sup. that there was no abuse of discretion as a -
matter of law. Nor was the Appellate Di- Oct. 24, 1985. ^'
,ich de-
"to be vision required by Domestic Relations Law
~(letion J 236(B)(5)(g) to analy.e each of the
factors stated in subdivision (5)(d) and give Property owner brought action seeking
maintc- an injunction against enforcement of local
,", both reasons as to each, it being sufficient under roning law. The Supreme Court, Special
han re- subdivision (5)(g) that it "set forth the Tenn, Westchester County, Marbach, J.,
'pel/ate factors it tonsidered and the reasons for its
slump. decision" (Kobylack II. Kobylaek, 62 held the ordinance valid, and appeal was
N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 taken. The Supreme Court, Appellate Divi-
e main- sion, 109 A.D.2d 814, 486 N.Y.S.2d 333,
'lations N.E.2d 829). reversed, and appeal was taken. The
Plaintiffs remaining arguments are ei- Court of Appeals, Meyer, J., held that noth-
,laintifC ther not before us on this appeal, unpre- ing in zoning enabling provisions of Gener.
Ie stat- served or without merit. al City Law, historical preservation provi-
award (9] On plaintiffs appeal, the order of sions of General Municipal Law nor land-
, distri. the Appellate Division should be affinned, marks preservation provision of city code ---
ains no empowered city to mandate the manner in
; in Jieu without tosts. Defendant's cross appeal which property may be owned or held or to
of the should be dismissed for want of aggrieve- impose upon the owner of a tract contain-
A.D.2d ment, the modification made by the Appel- ing historic structures, or purchasers of
".<ed 63 late Division having been in his favor. properties neighboring the tract, the cost
N.E.2d of rehabilitation or enhancement of the
,Y.S.2d WACHTLER, C.J., and JASEN, MEYER, properties.
he con. SIMONS, KAYE, ALEXANDER and TI- Affirmed.
!J.IOSUIn TONE, JJ., toncur in Per Curiam opinion.
'ard of On review of submissions pursuant to
I to be section 500.4 of the Rules of the Court of 1. Zoning and Planning *"232
'ssened Appeals (22 NYCRR 500.4): on plaintiffs Zoning laws are to be given strict cor..
Ige-in appeal, order affinned, without costs. De- struction because they are in derogation of
enanc:e fendant's cross appeal dismissed, without common.law rights.
futun!. costs. 2. Zoning and Planning *"21
'pellale There being no inherent power to enact
award zoning or land use regulation, an ordinance
Iy if it or local law provision for which legislative
creHan " delegation of power cannot be found is
'r Pro- o tit, MI,IMI(I \'I\tu'l ultra vires and void.
T
'dford, 3. Zoning and Planning 080>5
>0, 458
'pella!;' Power to adopt zoning provisions not
Ie trial expressly forbidden by enabling authoriza-
"'I(e or tion may be implied where there exists
,r to be independent justification for provisions
'~//l~.4lI. within the spirit of the enabling legislation.
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j 322 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 111 66 N.Y.2d 11'
!
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4. Zoning and Planning .p61, 63 impose upon the owner of a tract contain- i which in seVt
Neither enabling provision for resi- ing historic structures, or purchasers of ! injunction ag
dential zonittg in cities, McKinney's Gener- properties neighboring the tract, the cost ! tion, a decla
al City Law ~ 20, subd. 24, nor section of rehabilitation or enhancement of the I ultra vires, \
containing cluster zoning authorization ap- properties. The order of the Appellate Di. : spot zoning ,
plicable to city, McKinney's General City vision should, therefore, be affirmed, with ' well-consider,
Law ~ 37, empowered city to enact zoning costs. damages und
J law requiring, inter alia, that lot containing ants moved f
two historic buildings have a minimum I ing the local
area, remain in single ownership, buildings Plaintiff is the owner in fee of a parcel of wise dismiss
! not contain more than three and six units,. land situated in the City of Rye (City) of j cro.ss..moved
i respectively, and that owner or purchasers approximately 22 acres on which are locat- in its favor.
I of properties neighboring tract supply cost ed the Jay Mansion, built in 1838'by Peter there were i:
of rehabilitation or enhancement of the Jay, son of John Jay, the IlI'IIt Chief Justice ! ality requirin
properties. of the United States Supreme Court, and as a hybrid
5. Zoning and Planning .p61 another building known as the. Carriage zoning and hi
I Neither historical preservation provi- House, built around 1912 in the Colonial was not inva
sions in section of General Municipal Law, Revival style. There is some dispute be- ing and h~d
! McKinney's General Municipal Law ~ 96-a, tween the parties concerning the historic or accordance y,
landmark significance of the Carriage V1an, and tila
I nor landmarks preservation provision of House, but for purposes of this opinion we not lie with
city code authorized city to enact zoning Defendants'
j law mandating that entire 22-acre district assume that both buildings have such sig' : was, theref<
nificance. It is unneceaaary to detail the
t remain in single ownership with developer negotiations carried on from 1979 until \ demonstrdte(
! to rehabilitate exteriors of two historic 1983 between the City and plaintiff's prede- section preve
, buildiags, and proscribing use of any new I nomic benefi1
I cessor in titie 1 and between the City and i
I dwelling unit until that rehabilitation had cross motion
I plaintiff, and the various rezoniug propos- (
been accomplished, thereby effectively re- als that were made during those negolia. 1 ed to the Ap
I quiring that cost of rehabilitation be shared tions, although a few pertinent and unCOil- ! its brief, frm
by owners in district of units other than tested facts developed during those negoli- j as to the see
I buildings in question. ations are referred to below. I fendants apI
I When acquired by plaintiff's predecessor ! order as dire!
! and denied
; Henry J. Smith and James G. Fine, White the property was zoned R-2, as were neigh. i the section \
Plains, for appellants, boring properties, some of which were i Appellate D
..I.Ll2peter Gruenberger, Lesley E, Gold. used, however, for public purposes or of. I N,Y.S.2d 33<1
,
berg, Robbie Narcisse and Theodore S. fice use under nonconforming nses. R-2 I ferred only
Steingut, New York City, for respondent. zoning permits single-family detached ~ection, reve
homes on not less than one-half-acre plots, I "invalid as it
..I.L"OPINION OF THE COURT and plaintiff's property would have accom' I lation of the
MEYER, Judge. modated 38 such dwellings. In June 1983, , ty." (109 A,
the City Couneil adopted Local Law No, j 333,) We a1
Nothing in the zoning enabling provi- 5--1983, which added a new section 197-13,2 ! consider the
sions of the General City Law, the historic to the City Code creating the Alansten I the zoning el
cal preservation provisions of the General Landmarks Preservation Distriet (LPD-A), I
. I the City actA
I Municipal Law or the Landmarks Preserva- As the revised zoning map de!llonstrates, late ownersh
tion provisions of the Rye City Code em. and defendants do not deny, the only prop' I ing in the hi~
powers the City to mandate the manner in erty zoned LPD-A was plaintiff's 22 acres, of the Gener
i which property may be owned or held or to Plaintiff then began the present action, I marks Pres\
I 1. Title has apparently been transferred back to not moot the appeal (Ptu:ilic Bllld. A.uoc. II. Ci/1 ! Code, upon
l the predecessor by plaintiff, but the fact that of Long Beach. 38 N.Y.2d 766. 381 N,Y,S,2d 55, whether con
there has been no substitution of pMties does 343 N,E.2d 772), junction wit
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I 66 N.Y.2d 115 FGL & L PROPERTY CORP. v. CITY OF RYE 323
Clle..495N,Y.5.2d321 (CtApp. 19M)
which in seven causes of action sought an sions of the General City Law, empowered "
~ injunction against enforcement of the see- the City to enact the seetion in its present
. non, a deelaration that..w.it is invalid as fonn. We, therefore, affinn.
I ultra vires, unconstitutional, site specific,
!
, spot zoning and not in aecordance with a II
1 well-eonsidered zoning plan, and money The seetion as enacted deelares that in
i damages under 42 U.S.C. fi 1983. Defend- order to provide for flexibility in the City's
ants moved for summary judgment declar. zoning "so that the significant historic
ing the local law constitutional and other- buildings, the Jay Mansion and the Car-
, wise dismissing the complaint. Plaintiff riage House, and site features which char-
I ,ross.moved for partial summary judgment acterize this site . . . are preserved for
in its favor. Supreme Court held that the future and that new construction be
" there were issues concerning constitution. undertaken with care and consideration for !
alily requiring trial, but that the ordinance, these features and the environment", the
as a hybrid containing clements of both new district is adopted. Subdivision B eg. )
zoning and historic preservation regulation, tablishes standards for the new district,
was not invalid as site-specific or spot-zon- which include that "[t]he lot as approved
ing and had not been shown not to be in shall have a minimum area of twenty-two
accordance with the City's comprehensive (22) acres and shall be and..l.i!sremain in
plan, and that the seetion 1983 action would single ownership"; that "[t]he exterior of
not lie with respect to legislative action. the Jay Mansion and Carriage House shall
Defendants' motion for summary judgment be rehabilitated and the interiors converted
was, therefore, granted unless plaintiff to residential use", for the Jay Mansion not
demonstrated at a plenary trial that the to exceed three units and for the Carriage
section prevented it from realizing any eco- House not to exceed six; that there be a
nomic benefit from its property. Plaintiff's trapezoidal view way 90 feet in width at
c:ross motion was denied. Plaintiff appeal- the rear of the Jay Mansion and 300 feet in
, ed to the Appellate Division, as limited by width at the southerly property line; that
,
.1 its brief, from Special Tenn's order except the new dwelling units may not be occupied
, as to the section 1983 cause of action; de- .intil the exteriors of the Jay Mansion and
.,
f lendants appealed from so much of that the Carriage House have been restored and
< order as directed a trial on constitutionality the interiors converted to residential use
t
t and denied summary judgment declaring and available for occupancy and that a
the seetion valid and constitutional. The bond be posted to assure such rehabilita-
t Appellate Division, 109 A.D.2d 814, 486 tion and r.onvcrsion; and that the applica~
N.Y.S.2d 333, in a memorandum which re- tion for site plan approval be accompanied
, lerred only to the zoning aspect of the by, among other things, a draft condomin-
;; section, reversed and declared the section ium offering statement together with a
,
,
t "invalid as it constitutes an improper regn- draft of an easement andlor agreement for
~ lation of the form of ownership of proper. perpetual maintenance of the exteriors of
"
f ty." (109 A.D,2d, at p. 815, 486 N.Y,S.2d the Jay Mansion and the Carriage House.
. 333,) We agree that it is unnecessary to Neither the statutes authorizing enactment
! consider the constitutional issues and that of zoning provisions nor those dealing with
. the zoning enabling provisions under which historic landmarks empower the City Coun.
~ the City acted do not authorize it to regu- cil to adopt a local law with such provi-
, late ownership, and hold further that noth- sions, nor does anything in the Landmarks
? ing in the historical preservation provisions Preservation chapter of the City Code sup-
" 01 the General Municipal Law or the Land- port its so doing.
-i: marks Preservntion chapter of the City
'i
1. Code, upon both of which the City relies, A
whether considered separately or in con- U-3) Zoning laws are to be given a
junction with the zoning enabling provi. strict construction because they are in der. ..
.
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fE 324 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d lIS 66 N.Y';
..~
~'1 ogation of common-law rights (Matter of made with reasonable regard to the chara<. ..IJ.17notes
~,: #0 E. 102nd St. Corp. v. Murdock, 285 ter of buildings erected in each district, the \ IL diU"r
:,' N.V. 298, 304, 34 N.E.2d 329; 8ee, Matter value of land and the use to which it may propert~
" of Fri3hman v. Schmid~ 61 N.V.2d 823, be pu~ to the end that such regulations minium
I' 473 N.V.S.2d 957, 462 N.E.2d 134), More- may promote pllblic health, s.fety .nd we!-! with th
,'i' over, there being no inherent power to en- fare and the mOBt desirable use for which, that the
t' act zoning or land use regulation, an ordi. the land of each district may be adapted' or, if di
[: nance or local law provision for which legis- and may tend to conserve the value of no inde[
~..' lative delegation of power cannot be found buildings and enhance the value of land it of sui
(: is ultra vires and void (Matter of Kamhi v, throughout the city." (Emphasis supplied,) which t
,,"'
L Planning Bd., 59 N.Y.2d 385, 465 N.V.S.2d Nothing in that subdivision speaks to ownersl
~: 865, ,~52 N .E.2d 1193). Po~er to adopt ownership rather than use, and while it Nor c
.,;, proVISIOns not expressly forbIdden by the does not expressly forbid provisions rela~ contain,
. ?nab,ling authorization. ma.y, however" be ing to ownership, the City suggests noth- applicaL
" ~~lte? where the~. eXISts. m~epende~t.Jus- ing within the apirit of zoning legislation such ju,
j" tiflcatlOn for proVISIOns wlthm the Spirit of generally or this subdivision specifically Plannin)
., the enabling legislation (~ol/ard v. Incor- that offers justification for implying such sOl1abl"
po'rated V,I, of Flower H,I~ 52 N.Y.2d 594, power. Indeed, the cases are legion, in this provid.,
( 602, 439 N.V,S.2d 326, 421 N,E.2d 818). State and elsewhere, which hold that "zon- land not
f;, [4] The enabling provision for resi- ing... in the very nature of things has diatrict
!' dential zoning in cities is General City Law reference to land rather than to owner"! what th
r ~ 20(24).' That subdivision empowers a (Vernon Park Realty v. City of Moultt i Plannin;
~ city "To regulate and limit the height, bulk Vernon, 307 N.V. 493, 500, 121 N.E.2d 517) appropr
r and location of buildings hereafter erected, and that it is a "fundamental rule that nance (
\' to regulate and determine the area of :roning deals basieally with land use and N.Y,2d
if yards, courts and other open spaces, and to not with the person who owns or occupies N .E.2d
r regulate the density o!ow,population in any it" (Matter of Dezter v. Town Bd., 36 town, 3
k given area, and for said purposes to divide N.V.2d 102, 105, 365 N.V.S.2d 506, 324 '_. the see
~"" the city into districts. Such regulations N.E.2d 870; accord, Matter of Weinrib v, cates al
r: shall be uniform for each class of buildings Weisler, 'ZI N.V.2d 592, 313 N.V.S.2d 407, deviatio
C throughout any district, but the regulations 261 N.E.2d 406, af/g. 33 A.D.2d 923, 307 upon al
,
..: in one or more districts may differ from N.V.S.2d 603; AI/en v. Town of N. H/lfltp- aceom",
,
~. those in other districts. Such regulations stead, 103 A.D.2d 144, 146, 478 N.V,S.2d houses,
,. shall be designed to secure safety from 919; North Fork Motel v. GrigoniB, 93 opment
fire, flood and other dangers and to pro- A.D.2d 883, 461 N.V.S.2d 414; 8ee, Motter ownersl
mote the public health and welfare, includ. of Park IV. Vii. AB8oc. v. Abrams, 65 sions, t:
ing, so far as conditions may permit, provi- N.V.2d 716, 492 N.V.S.2d 'ZI, 481 N.E.2d I implied
, sion for adequate light, air, convenience of 567). Most of the out-of-State cases hold, ~
access, and the accommodation of solar en- as did the North Fork Motel case, that a ;
ergy systems and equipment and access to zoning ordinance cannot be used to exclude! [5) ,
sunlight necessary therefor, and shall be a condominium.' The City correctly of the ,
2. Subdivision 25 authorizes regulation and re- (387 Mass. 351, 439 N.E..2d 788); Bn"dge Park. exist, tt
striction of trades and industries and, therefore. Co. v. Borough of Highltuul Park (113 NJ.Supcr., the hist
. is not a source of power for the local law under 219,273 A.2d 397); Graham Ct. Assoc. v. Town '
consideration. In any event, it provides no Council (53 N.C.App. 543.281 S.E.2d 418); 5&'&', ~ also re,
grealer suppon for Local Law No.5 than subdi- kkHenry Slate Bank v. City of McHenry (J JJ has R~
~ vision 24, for,it ~u.thorizc:s no more lha~.contro.! lll.App.3d 82, 68 III.Dec. 615. 446 N.E.2d 521);: N.H. 4
of where bulldmgs. deslG?,ed for specifiC u~s Maplewood ViL TelUlnlS A.s.sn. v. Mdplawood fiL j C~~J/,
. m~y be located and of the uses for.. which (116 N.J.supcr. 372. 282 A.2d 428); but su,! nal".~'.
f. buildings may not be creclcd or ahcrcd. Goldman v. To~ of Dennis (375 ~ 191.375 t Zonmc
3. City 01 Miami Beach v. Arlen King Cole Condo. N.E.2d 1212); Gn/lm Del'. Co. v. Cay of Oxnard ~ 4. The:
minium Assn. (302 So.2d 777 (Fl.). <<" denid (39 CaI,3d 2S6, 217 CaI.Rp.r, I, 703 P.2d m; (~ 281.
308 So.2d 118): C1JR Gcn. v. City of Newton (1985)). Th~ general propositi.on is. however. \ what I
l
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66 N.Y.%d 118 FGL & L PROPERTY CORP. v. CITY OF RYE 325
Cite.. 495 N.Y.8.2d32t (etApp. 1915)
J.Ll7notes that exclusion of condominiums is tained in seetion 96-a and article 6-K of
a different proposition than requiring that the General Municipal Law or the Land-
property in a given area be held in condo- marks Preservation provision of the Rye
minium ownership. However, we agree City Code (ch. 117).
..ith the Appellate Division's co,nclusion Section 96-& of the General Municipal
that the distinction is without a dilference, Law reads aa follows: "In addition to any
or, if difference there is, that there exists power or authority of a municipal corpora.
no independent justification within the spir-
it of subdivision 24's zoning provision from tion to regulate by planning or zoning laws
which the power to require condominium and regulations or by local laws and regu-
ownership can be implied. lations, the governing board or local legis-
Nor does General City Law ! 37, which lative body of any county, city, town or
village is empowered to provide by regula-
rontains the cluster zoning authorization tions, special conditions and restrictions for
applicable to cities such as Rye, provide the protection, enhancement, perpetuation
,neh justification. Under its provisions the and use otLv.pJaces, districts, sites, build-
Planning Board is authorized to make rea-
sonable changes in the zoning regulation, ings, structures, works of art, and other
provided that the average density of the objects having a special character of special
iand not be greater than is pennitted in the historical or aesthetic interest or value.
district in which the land lies. Although Such regulations, special conditions and re-
..hat the legislative body can authorize its strictions may include appropriate and rea-
Pianning Board to do, it can do itself by sonable control of the use or appearance of
neighboring private property within public '~-..~'-
appropriate amendment of its zoning ordi.
nonce (see, Cummings v. Town Bd., 62 view, or both. In any such instance such
S.Y.2d 833, 834, 477 N.Y.S.2d 607, 466 measures, if adopted in the exercise of the
S.E,2d 147: Rodgen v. Village of Tarry- police power, shall be reasonable and ap-
town, 302 N.Y. 115, 123, 96 N.E.2d 731), propriate to the purpose, or if constituting
the s..tion contain. nothing which indi- a taking of private property shall provide
cate. an intention to do more than allow for due compen.ation, which may include
deviation from fIXed dimen.ional zoning the limitation or remi..ion of taxe.... Arti.
upon application of the owner in order to cle 5-K is broader in .cope, covering hi.tor-
a<commodate group houses, apartment ic pre.ervation not only by regulation but
houses or stores.4 Power to require devel- by governmental acqui.ition a. well. Sec-
opment of a 22..aere parcel in condominium tion 119-bb(4) define. "hi.toric pre.erva-
ownership cannot be implied from its provi- tion" to mean "for the purposes of this
!iuns, therefore, any more than can it be article and notwithstanding any other pro-
implied from General City Law ! 20(24). vision of law, the study, de.ignation, pro-
tection, re.toration, rehabilitation and use
B of buildings, structures, districLc;, areas,
(5] Authority to enact ...tion 197-13.2 .ites or objects .ignificant in the hi.tory,
.r the Code of the City of Rye doe. not architecture, archeology or culture of this
'!~i!;t. therefore, unless it can be found in . state, its communities, or the nation." The
the historical preservation provisions con- operative provisions of the article are con-
also rec:ogni1.ed in noncondorninium cases (lIla. matcria (see, Dela1A'tlre Midland Corp. v. lncor.
~I)J' Really Co. v. UlIle Boars /lead nist.. 101 poroled Vii. of Westhamplon Beach. 39 N.Y.2d
S.H. 460, 146 A.2d 251; County of Fayette v. 1029, 387 N,Y.S.2d 248. 355 N,E.2d 302. .lfg on
Con~IL 60 Pa.Cornmw. 202. 430 A.2d 1226; Fer- opn at Special Term 79 Misc.2d 438. .359 N.Y.
"tttds Appeal. 17 Pa D &: C 2d 291; Olevson v. S.2d 944), the City's authority is not enhanced.
z""in, OJ,. 71 R.I. 303, 44 A.2d 720), for both speak to Ihe "development of land in
... The cluster provisions of the Town Law such a manner as 10 promole the most appropri.
f' 281) and the Village Law Hi 7-738) arc some- ate use of land".
,.hat more detailed. but even if read in pari
..:
i!.!
S~~ 326 495 NEW YORK SUPPLEMENT, 2d SERIES " N.Y.1d liS
j'~
C
(.". tained in section 119-<1d, which is set forth of the Jay Mansion and the Carriage
.
!I,~: in full in the margin,- House, proscribe the use of any new dwell.
~ ..!J.l,Of importance to the present issue is ing unit until that has been done, thus
the faet that the regulation, special condi. effectively requiring that the cost of reha'
~i tion or restriction by which section 119- bilitation be shared by owners in the di.s,
dd(l) authorizes control of private property trict of units other than the Jay Mansion
". is "for the protection, enhancement, perpet- and the Carriage House, _ by dictating
i':;.. uation and use of places, districts, sites, condominium ownership of the entire di.s.
" buildings, structures". Nothing in the sub- trict impose the cost of I".-.....".n<e of the
\~"
t; division speaks to regulation ,of ownership. exteriors of the Mansion aDd the Carriage
Noteworthy also is the fact that though House upon owners of such units as welL
.' section 119-bb(4) refers to "restoration" The right to impose re~le controls
"
i and "rehabilitation", those words are not to on the use and appearance of neighboring
1" be found in section 119-<1d(1), presumably private property within pulJJie view, given
} because it was intended to pennit a munici- by General Municipal Law '* 96-a and
. pality acting under section 119-<1d(3) after 119-<1d(l), cannot be stretched to cover pay-
r acquisition of a fee or lesser interest to ment of restoration and maintenance costs,
F restore and rehabilitate historic buildings for such a construction, whic::h would im.
..
~.t and sites, but not to permit the municipali- pose those costs upon every unit in the
f
i! ty to impose an obligation to restore or district, not just those "withia public view,'"
I1 rehabilitate such buildings or sites as re- would render meaningless the limitation in.
main in private ownership. Here the Code tended by those words wlaidt appear ia
sections creating the Alansten Landmarks both sections. Yet there is DO question
Preservation District not only mandate that that such was the Council's intention, for
f - the entire 22-acre district remain in single its findings with respect to the final eavi-
i ownership but also impose upon the devel- ronmentaJ impact statemeat flatly stated,
~
, oper the duty of rehabilitating the exteriors that "[0 ]nly under [condominium] owner-
~.
",' 5. The section, entitled "Local historic preserva- otherwise. acquire the fee or aaylcsser interest,.
I tion programs," reads as follows: devetopment right. easerneua. c:ovcn.ant or other
,
r "In addition to existing powers and authori- contractual right necessary 10 Khievc the pur-
~' tics for loeai historic preservation programs in. poses of this article, to hi.tIoric:eJ or cultural
cluding existing powers and authorities to regu. property within its jurisdictioa. After acquisi-
late by planning or zonine: laws and resulations tion of any such interest purwaot to this subdi-
i or by local laws and regulations for preserva- vision, the effect of the acquiIiIion on the valua-
tion of historic landmarks and districts and use tion .placed. on any remaini8& private interest in
of techniques including transfer of devclopment such, property for purposes of real estate taxa-
rights, the I~gislative body of any county. dty, don shall be taken into aCCOUDL
town or village is hereby empowered to: "4. Designate, purchase. restore. operate.
"1. Provide by regulalions, special conditions lease and seU historic bu~ or structures.
and restrictions for the protection. enhance- Sales of such buildings and SllUCtures shall be
ment, perpetuation and use of places, districts, upon' such terms and conditions as the local
sites, buildings, structures, works of art and
other objects having a sp<<ial character or spc. legislative body deems ap...-wtc to insure the
cial his,orical, cultural or aesthetic interest or maintenance of the historic ..lity of the build-
value. Such regulations, special conditions and ings and structures, after public notice is appro-
restrictions may include appropriate and rea- priateiy given at least thirty days prior '0 the
sonable control of the use or appearance of anticipated date of availability and shaU be for
neighboring private propl:rty within the public fair and adequate consideraaion of such build.
view, or both. iogs and structures which in no event shall be
"2. Establish a landmark or historical preser. tess than the ex.penses incurred by the munici.
vation board of commission with such powers paUty with respect to sucb buiklings and strue-
as are necessary to ca.rry out all or any of the tUCC5 for acquisition, restnration, improvemc:nt
authority possessed by the municipality for a and interest charges.
historic preservation program, as the local legis- "5, Provide for transfer of development
, lativc body deems appropriate. rishts for purposes consistent with the purpo$C~
"3, After due notice and public hearing. by of this article."
purchase. gift, grant, bequest. devise, lease or
~,
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66 N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE 327
Clte..495N.Y.5.U321 (etApp. 19M)
ship can the cost of maintaining the exteri- out violating the Constitution, nor need we
ors of the historic buildings be shared reach the question whether as applied to
.IJIoby all the homeowners", and that theme plaintiff's property section 197-13.2 is con.
is repeatedly emphasized in the City's brief stitutiona!. We hold rather that in light of
to this court. While that may be true, the well.recognized rule that statutes are
clearer authorization to enact such provi- to be construed so as to avoid constitution-
sions than are contained in the General al issues if such a construction is fairly
Municipal Law sections referred to is es- possible (Matter of Peters II. NelD York
sential before section 197-13.2 can be up- City HoU& Auth., 307 N.Y. 519, 527-528,
held aKBinst the argument that it was be- 121 N .E.2d 529; see, Peopte II. Feliz, 58
yond the City's power to enact. N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446
Noteworthy also, in view of the require- N.E.2d 757; McKinney's Cons.Laws of
ment that the Mansion and Carriage House N.Y., Book I, Statutes ~ 150), the General
be completely restored before any other Municipal Law sections under consideration
unit can be occupied is the absence from as presently written should be construed
not to authorize imposition of restoration
the General Municipal Law sections of au- costs solely upon plaintiff and purchasers
thority to require restoration, as distinct from plaintiff or maintenance costs upon
from maintenance. Landmark and historic purchasers of properties other than those
preservation laws normally prevent altera- to be preserved.
lion Or demolition of existing structures
unless the owner can demonstrate hardship C
(Penn CenL Tramp. CO. II. City of New In view of the distinctions between zon-
York, 42 N.Y.2d 324, 330, 397 N.Y.S.2d ing regulation, historic district regulation -"-.-'-
914,366 N.E.2d 1271, affd.. 438 U.S. 104,98 and landmark regulation recognized in
S,Ct. 2646, 57 L.Ed.2d 631), but if they Pen~l CenL Transp. CO. II. City of New
place an undue and uncompensated burden York, 42 N.Y.2d, at p. 330, supra, 397
on the individual owner may be held uncon- N.Y.S.2d 914, 366 N.E.2d 1271, we note
stitutional (Lutheran Church in Am. II. that chapter 117 of the Rye City Code deals
City of New York, 35 N.Y.2d 121, 129, 359 with landmarks preservation and is re-
N.Y.S.2d 7, 316 N.E.2d 305) because "it ferred to in section 197-13.2(C)(1). As
forces the owner to assume the cost of chapter 117 read when the Alansten Pres.
providing a benefit to the pubJic without ervation District section was enacted, land-
recoupment" (French In_ting CO. II. City mark designation required the property
o/New York, 39 N.Y.2d 587, 596, 385 N.Y. owner's consent, but effective December 7,
S.2d 5, 350 N .E.2d 381; see, Dunham, A 1983, chapter 117 was amended to remove
Legal and Economic Basis For City Plan- the consent requirement and provide for
.i.g, 58 Colum.L.Rev. 650, 665). Here, landmark designation by the City Council
society at Jarge bears no part of the cost of alone,' and effective July 18, 1984, the
restoration, it is rather to be borne initially Alansten 22.acre site and the exteriors of
by plaintiff and ultimately by the purchas- the Jay Mansion and of the Carriage House
ors of dwelling units within the district. were designated as protected. Nothing in
Yet the City's expert appraiser agreed that that designation or in the provisions of
restoration costs of approximately $627,000 chapter 117, which concern only mainte-
for the Jay Mansion and $588,000 for the nance of a landmark and the circumstances
Carriage House would be required. under which it can be demolished, provides
We do not hold that the General Munici. support for the provisions of section 197-
pal I.~w sections could not be drafted to 13.2 requiring that the Alansten property
impose restoration costs on an owner with. be held in single ownership in condominium
6. On June 18, 1984. the Alansten 22.acre plot before Supreme Court. Westchester County. in a
"''as 50 designated. The con!Otitutlonality of the declnratory judgment action entitled DGM Part-
amended version of the chapter is awaiting trial n~I'$~Rye v. City of Rye.
.
- 0-
,.,
"
. ~:
':/"', 328 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 121
iJ
~:., form or the imposition of restoration, as er to add request for reductions in unpro
~'"
.. distinct from maintenance, costs upon the tested assessments on improvements.
property owner and ultimately upon pur- Affirmed.
~" chasers of dwelling units within the dis- Wachtler, C.J., filed dissenting opinion
trict. in which Meyer and Kaye, JJ., concurred.
For the foregoing reasons, the order of
the Appellate Division dedaring Rye City Taxation "'483.7( 1)
. Code ~ 197-13.2 invalid is afftrmed, with Court was without authority to grant
1\" costs.
i! amendment to petitions alleging error in
1~, WACHTLER, C.J., and JASEN, SI- assessed value of land only, based on pro-
f; tests similarly limited, to permit taxpayer
~ MONS, KA YE, ALEXANDER and TI- to add request for reductions in unprotest,
TONE, JJ., concur. ed assessments on improvements.
f;i Order afftrmed, with costs.
r:'
. ..JJpAdolph Koeppel, Anne J. Del Casino
w
e o tUY....II'iYsn!ol and Donald F. Leistman, Mineola, for ap-
T pellant.
~..i-
~ Edward G. McCabe, Co. Atty. (Joshua A,
h'
I~ . Elkin, MineoJa, of counsel), for respon-
F-'
0, dents. J
:1-'
"
(:
\:~ 485 N.E.2d 993 I
t! 66 N.Y.2d 122 ..JJjuOPINION OF THE COURT j
" SIMONS, Judge.
~ ..J.ii!2In the Matter of STERLING ,
f' ESTATES, INC., Appellant, Petitioner is the owner of real property I
" in Valley Stream, New York, known as tJi.' J
L c
~,,<. v. Green Acres Shopping Center. It has insti- "
;' BOARD OF ASSESSORS OF the luted several proceedings pursuant to Real .1
f- COUNTY OF NASSAU et aI., Property Tax Law article 7 seeking a fe- r
p Respondents. duction in the land assessments on the sev. }
Court of Appeals of New York, eral parcels making up the shopping center ..;
,'-
property for the tax years 1967/1968 "
Oct. 24, 1985. through 1977/1978. In 1982 it moved to c.
; amend the petitions requesting, along with b
, other relief, permission to allege error in )\
Taxpayer moved to amend petitions the assessed value of Jots not previously j
filed in tax certiorari proceedings to in- protested and in the assessed value of im. ; p,
I
crease amount of claimed reductions on provements on lots that had been protest. fi.
basis that assessments were unequal, ex. ed. Special Term denied that relief, hold- i .,U;
.
cessive, or otherwise valid. The Supreme ing that it lacked jurisdiction to pennit 0 SL
l
Court, Nassau County, Farley, J., denied amendment of the petitions to add a cba!, I m
motion, and taxpayer appeaJed. The Suo lenge to lot or improvement assessments J><
.
preme Court, Appellate Division, 104 which had not been protested previously w,
, A.D.2d 599, 479 N.Y.S.2d 381, affinned. during the statutory period for administra- "U
On appeal by pennission of the Appellate tive review. The Appellate Division af. S(:
Division, the Court of Appeals, Simons, J" firmed, with one judge dissenting (104 t-.
held that Court was withou t authority to A.D.2d 599, 479 N.Y.S.2d 381). On this I bl,
;
grant amendment to petitions alleging er- appeal petitioner presses omy the court', ! in,
ror in assessed value of land only, based on ruling denying amendment to add a chal, ha
!
~. protests similarly limited, to permit taxpay' lenge to the assessed value of the improve- I pu
!
!
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SUMMIT SCHOOL v. NEUGENT 77 ".
,;.
Cite.... App.DIv.,442 N.Y.s.2d 73
, \ ...... M ... ....... .... ~ ... ~.. _,........ '" ... .,...... '" ...
r ject oC tbe special permit (Matter of Com-" educational processes oC tbe institution, and .,
. munity Synagogue v. Bates, 1 N.Y.2d 445, also equally improper and beyond its power
,
. 154 N.Y.S.2d 15, 136 N.E.2d 488; Matter of to impooe sucb conditio"", as bere, by an
,
! Schlosser v. Michaelis, 18 A.D.2d 940, 238 agreement witb tbe applicant.
.~ N.Y,S.2d 488; Matter of Oakwood Is. Yacht .
, [6] To tbe extent that appellants may
Club v. Board of Appeals, 32 Misc.2d 677,
. ~ N.Y.S.2d 907; Matter of Long Is. Light. be properly precluded by a prior waiver oC a
. statutory or oo""titutional rigbt to cbal- -
I Co. v. Voehl, Z1 Misc.2d 943, 211 N.Y.S.2d
! 576, aCCd. 15 A.D.2d 512, 222 N.Y.S.2d 589; lenge tbe official action oC the municipality
\ ' Matter of De Ville Homes v. Michaelis, in relation to zoning, such waiver is ineCCec-
Sup., 201 N.Y.S.2d 129; Bernstein v. Board tual to Coreclose such attack where the
i of Appeals, ViI. of Matinecock, 60 Misc.2d right concerns a matter of public policy (see
! 470,302 N.Y.S.2d 141, app. dsmd. 31 A.D.2d Brous v. Town of Hempstead, Z12 App.Div.
31, 69 N.Y.S.2d 258).
i I 650, 297 N.Y.S.2d 702, mot. Cor Iv. to app.
, t den. 23 N.Y.2d 646, 299 N.Y.S,2d 1025, 247 By tbeir agreement, the appellants have
"- N.E,2d 498). eCCectively waived all objections to tbe
, Uconditions subsequent", except those under
~ Wbere, as here, tbe special permit oon-
tains specific conditions which have been whicb tbe municipality sougbt to assume
the subject matter oC arl agreement be- control over some aspects of the educational ._.d,\~:
process oC the scbool, an eCCort Cor wbicb it
! tween the Board oC Appeals and the appli- wa.. neither proCessionally equipped nor Ie- ,
cant, such conditions must also pertain ex-
i elusively to the zoning use oC tbe land and gaily authorized to undertake.
,
, not to tbe details of the operation oC the [7] Tbose 4'conditions 8ubsequent"
1 business to be thereon conducted, wbicb, in whicb may intrude upon tbe educational
, .<'..
, this case, concerns the teacbing of bandi- processes of tbe appellants, as opposed to ;'J;;.~.
f
\ capped cbildren witb learning disabilities, tbeir use of real property, are contrary to ,-'"
pursuant to a constitutional mandate im- public policy and may not be the subject : ~:~t::;
posed upon the State to "provide Cor tbe matter oC a waiver. ;'-~:.~~
,)j-;~,.
maintenance and support oC a system oC Our inquiry is now Cocused upon many -::;}1t:/
\ Cree oommon scbools, wherein all tbe cbi!- clauses of the '4conditions subsequent" des- .:_?1t;~'
dren oC this state may be educated." (N.Y. ,;<t,
ignated liD", which, for the reasons herein.. ::;1>-
\ Const., art. XI, ~ 1; emphasis added.) below stated, suCCer such inCinnity. It is ,i~
[5] We are dealing here witb a private there provided as Collows: " -;~i~\
school teacbing enterprise, autborized and "D. Students will be under 18 years oC ~'''h','
.~;~~.~
operated under oontract to carry out the age and will be limited to those with
1 State's obligation to provide education Cor so-called 'Learning Disabilities'; regular 'I:'
such bandicapped cbildren with learning educational classes will be held during the
I disabilities, pursuant to artiele 89 (~~ 4401- months oC September tbrougb June, in-
I 4409) oC tbe Education Law, and it would elusive, on Mondays tbrough Fridays, in-
, not only be oontrary to "the strong public elusive, Crom approximately 9:00 A,M. to
,
t policy oC the State wbich favors tbe educa- approximately 4:00 P,M.; any atbletic or
; tion oC all children, however handicapped" recreational activities sball be oC second.
0 (Rogel'B v, Association for Help of Retarded ary importance and will be beld eitber
j Children, 308 N.Y. 126, 132, 123 N.E,2d 806, indoors, or suCCiciently distant Crom the
I emphasis added; Matter of Wiltwyck nortb and soutb boundaries oC the proper-
1
; School for Boys v. Hill, 11 N.Y.2d 182, 227 ty, both, to the end that neigbboring
i N.Y.S,2d 655, 182 N.E.2d 268, supra), and owners will not, be disturbed by loud
,
,
. in excess oC tbe legislative power conCerred noise or otherwise; no summer camp or
I upon a municipa1ity, to impose, as a condi- vacation activities oC any kind will be
( tion oC a special use pennit Cor a private held or maintained at any time on tbe
,
.'
,
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it
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,.;,.;...~..:,;,.";:,,,:
3 P.O.K. RSA, INC. v. VILLAGE OF NEW PALTZ 479
Qto _ 555 N.Y.s.u 476 (A.D. J.... I""
:ecutive Law if 370- plied) (Executive Law former 0 383, re- fleS as multifamily dwellmgs, into condo-
Multiple Residence , pealed by ,1..1981, c:h., 707, 0 12). miaiums, also considered multifamily dwell.
, certificates of oceu- The celtirlC8~ of occ:upaney issued in con. ings, it goes beyond the Village's enabling
:es,id,enc:. Law 0 302), nection with plaintifrs apartment complex authorization and therefore the local law is
IDlclpabtles to enact from 1963 to 1969 . proclaim that the build- ultra vires and void (sss, FGL If: L Prop.
laws (Multiple Resi- ings "coriform[ed] to all of the require- 'CMp. v. Citg of Rge, supra, 66 N.Y.2d at
, ments, of the applicable provisions of the 116, 496 N.Y.S.2d 321, 486 N.E.2d 986; -
he third cause of ac- law" existing as of the date of issuance ,North FtWk JloI41 v. GrigoraU, supra).
S predicate that the (sse, 4' Rathkopf, The t.w of Zoning and , ' " , '
the power to enact Planning 0 49.07, iit' 4&-41).' Local Law 'MAHONEY, P.J., and MERCURE, J.,
cause it contravenes No. 21 doetI 'not detraet from that 888Ur- concur.
Iltiple Dwelling Law ance. for it requires the building inspector
oidcnce Law 0 302(6) 'to determine if the su-ucture meets current KANE, J.. concurs in part and
ntlsr 0 383. Undeni. building consu-ueliion IaWII. Although the dissents in part in an opinion.
,t establish local laws already-promulgated certificates attest that Order modified, on the law, without
,e State Constitution the complex m~ building'cod~ regulations costs, by reversing 80 much thereof as
,... defined as laws ~nt at the time they were ..sued, there denied plaintifrs motion for summary judg-
, all villages (N.Y. .. no guaran~, that they meet today's ment; plaintiff granted summary judgment
3][c], [dIl]; Munici- standards (sse, id... at 4~. For example, on its fllBt cauae of action and defendant's
. 0 10(1](ii][a][12]). the N~w:York B1iiJding Code was repealed Local t.w No. 21 declared ultra vires and
Ie. however, is not effective January 1, 1984, ~d replac:ecl by 'void; and, as 80 modified. affirmed.
of these three stat_the current New York Uniform Fire Pre- _ _'
, vention and Building Code Ad, ",hich be- . .
came effective July 21, 1981 (1..1981, ch. . ~E, ~ustiee (concumng m part and
Dwelling Law and 707, Of 12, 20). Local t.w No. 21's re- disaentmg ID part).
,w adverted to pro- quirement that plaintifrs buildings now In respectfully dissenting, I' note my con-
n an individual pur- meet current building and fire regulations currence with the majority's reasoning as
!ling relies on a pre- does not offend the Executive Law former to the merits of plaintifrs second and third
,te of occupancy, no , f 383 guarantee. cauaes of action. In my view, however, the
.e advanced that the (5] There is, ho*ever, merit to the com. ordinance is a legitimate exerelse of the
-m to the provisions "plaint insofar as the ,first cause of action is VDlage's police power and I would, there-
'ters of tho.e laws conCemed; for as plaintiff rightly suggests, fore, affirm Supreme Court's dismissal of
f the certificate (sse, the VilIi.gedoes not bave the legislative plaintifrs first and second cauaes of action.
, 0 301[5]; Multiple power to regulate theconvenion of proper- ''To be sure, a Village ordinance enacted
.] ). These sections ty' ownership , which doee not involve an under the police power must bear a reason-
the dwelling was not ' alteration In the owner's use of the proper- able connection to the public health, com.
ose laws, when the ty. Municipalities bave no mherent capaci- fort, safety and welfare" (D'Angelo v.
I; Local Law No. 21 ty to mandat8the manner in which proper- Cole, 67 N.Y.2d 65, 69, 499 N.Y.S.2d 900,
:ontrary. ty may be owned or held (FGL If: L Prop. 490 N.E.2d 819; see, Village Law
, Corp. v. Citg of Rge, 66 N.Y.2d 111, 113, f 4-412[1]). I agree with the majority
:"",1 law contradIct 495 N.Y.S.2d 321, 486 N.E.2d 986). They that, absent a delegation of power, a vii.
j 383. That statute must acquire such power from the State. lage may not mandate the manner in which
',Absent such a delegation of power, a mu- property may be owned (sse, FGL &: L
:ate of occupancy 'nicipality cannot employ a ""Ding ordinance Prop. Corp. v. City 01 Rye, 66 N.Y.2d 111,
I set aside or vaeat- to exclude or dis<:riminate against the con. 113, 495 N.Y.S.2d 321, 486 N.E.2d 986).
,'view or a court of dominium form of ownership (Nortlt Fork However, the clear legislative target of the
n, be and remain , Motel 1/. Grigo7l;" 93 A.D.2d 883, 461 N.Y. ordinance at issue here is the condition of
e upon all state and 'S.2d 414). All Local Law No. 21 encumbers the property at the time of conversion, not
as to all mattsrs ,sponsors' efforts to convert apartments, its fonn of ownership. The encumbrance
no order, direction which the Village zoning ordinance classi- directed at conversion is, in my view, inc~
variance therewith .
~ued b n th * The cenl8catei of oc:c:upanc:y i-..ed to plaintiff Executive Law prcwision was repealed effective
" (yo y. 0 er In 19S6. 19S7 and 19S5 an: Irrelevant (or th. In 1984 (LI9S1. ch. 707. U 12. 20).
.ncy emphasIs sup- purposes a.', ..~Js 8f'IUment for the applicable
..~ ....
II I I .
I
. .
I
1~~@[gO\V1@J~1
, , ,- I I
, "i 11991 I I
x '
'l
APPLICATION OF MICHAEL CHOLOWSKY,
TO THE ZONING BOARD OF APPEALS, MEMORANDUM OF LAW
TOWN OF SOUTHOLD
X
FACTS
This is an application to the South old Town Zoning Board of
Appeals for a variance to the Southold Town Zoning Ordinance, Article
III, Section 100-31B(7)(c) concerning the proposed establishment,
construction and operation of a golf driving range, a miniature golf
course and building with office accessory and incidental thereto, The
sUbject premises is known as 3340 Horton's Lane, Southold, New York,
bears County Tax Map Parcel I.D. No, 1000-55-1-9 and contains 16,7t
acres, Said property is owned by Lorinda C. Casola and the applicant
is the holder of a long-term lease thereon with an option to purchase.
Applicant has applied to the South old Town BUilding
Department for a building permit, but a Notice of Disapproval has been
issued, stating that the applicant requires both a special exception
and 0 variance, Section 100-31B(7)(c) states that any of the special
exception clubs and uses allowed within said Section ." ,sholl not be
conducted for profit as a business enterprise,. It is the applicant's
contention that the purported limitation of such special exception uses
to not-for-profit enterprises is clearlY illegal and that 0 variance
should be granted allowing the applicant to conduct such a use os 0
business enterprise for profit,
II I I . I
. ' . '
LEGAL ARGUMENT
Article 16 of the Town Law regulates zoning and planning by
the various towns within the State of New York. Section 261 thereof
establishes the power granted to the towns by the State of New York and
reads as follows:
For the purpose of promoting the health, safety,
morals, or the general welfare of the community,
the town board is hereby empowered by ordinance to
regulate and restrict the height, number of stories
and size of buildings and other structures, the
percentage of lot that may be occupied, the size of
i yards, courts, and other open spaces, the density
of population, and the location and use of
buildings, structures and land for trade, industry,
residence or other purposes; provided that such
regulations shall apply to and affect only such
part of a town as is outside the limits of any
incorporated village or city; provided further,
that all charges and expenses incurred under this
article for zoning and planning shall be a charge
upon the taxable property of that part of the town
outside of any incorporated village or city. The
town board is hereby authorized and empowered to
make such appropriation as it may see fit for such
charges and expenses, provided however, that such
appropriation shall be the estimated charges and
expenses less fees, if any, collected, and
provided, that the amount so appropriated shall be
assessed, levied and collected from the property
outside of any incorporated village or city, Such
regulations may provide that a board of appeals may
determine and vary their application in harmony
with their general purpose and intent, and in
accordance with general or specific rules therein
contained,
Nowhere in said section is there any grant of power to
regulate the form of ownership of property within the context of the
zoning and planning authority of a town, In fact, cases are legion
II I I . I
II ' ,
that such a power to regulate the form of ownership does not and cannot
exist, Indeed, it is a fundamental rule that zoning deals basically
with land use and not with the person who owns or occupies it. (See
Matter of Dexter V. Town Board, 36 N,Y, 2d 102, 105, 365, N,Y.S 2d 506,
324 N.E. 2d 870; accord, Matter of Weinrib V, Wiesler, 27 N.Y. 2d 592,
313 N,Y,S, 2d 407, 261 N.E, 2d 406, A1fg 33 A,D, 2d 923, 307 N,Y,S, 2d
603; Allen V. Town of North Hempstead, 103 A,D, 2d 144, 146, 478,
N,Y,S, 2d 919; North Fork Motel V, Griaonis, 93 A.D, 2d 883, 461 N,Y,S.
2d 414; ~, Matter of Park W, ViI Assoc. V, Abrams, 65, N.Y, 2d 716,
492 N,Y,S, 2d 27, 481 N.E. 2d 567), Annexed hereto are copies of the
North Fork Motel V, Griaonis and FGL&L Propertv Corp, V. Citv of Rve
decisions,
It is absolutely clear and certain from the foregoing cases
that the attempt in Section 100-31B(7)(c) of the Zoning Code to
restrict the allowable special exception uses to not-for-profit
entities is a legal nullity. As expressed in all of those cases, it is
use rather than form of ownership that is the proper concern and focus
of zoning and planning regulations, The decisions of all levels of
courts in this State, including the Court of Appeals (the highest level
court in this State) are uniform in holding that a zoning ordinance may
not regulate the form of ownership of property, as distinguished from
regulating the use of said property,
II I I . I
CONCLUSION
The Southold Town Zoning Board of Appeals should grant the
requested variance to allow the applicant to establish, construct and
operate a golf driving range, miniature golf course and building with
accessory office thereto under any form of ownership, including a
business enterprise for profit, which said applicant deems appropriate,
Respectfully submitted,
J, KEVIN MCLAUGHLIN
Attorney for Applicant, Michael
Cholowsky
828 Front Street, PO Box 803
Greenport, New York 11944
(516)477-1016
I I .
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414 461 NEW YORK SUPPLEMENT, 2d SERIES
Wickham, Wickham & Bressler, P,C" 93 A.D.2d 883 Smith,
Mattituck (Eric J. Bressler, Mattituck, of & Yakabo
counsel), for appellant, NORTH FORK MOTEL. INC. Riverhead
Poaner & Posner, Mount Vernon (Linda Respondent, E..eks,
S. Jamieson, Mount Vernon, of counsel), for v. head (Ste
William Sirignano, reeeiver-respondent. Charles GRIGONJS, Jr. et aL, cOlllltitutina counsel), f
Before GIBBONS, J,P., and GULOTTA, the Zoning Board of AppeaJs of tile Before ,
O'CONNOR and NIEHOFF, JJ, Town of Soutllold et al., AppeUaat& BRACKE,
MEMORANDUM BY THE COURT. Supreme Court, Appellate Division,
In an action, inter alia, for a declaratory Second Department. MEMO!
judgment to determine the ownership of a In a CP
puhlishing house, defendant appeals from April 25, 1983. peal is fr
an order of the Supreme Court, Westehes- Court, SUI
ter County, entered September 9, 1982, which anT
which, upon the respondent receiver's mo- Town zoning board of appeals appealed inspectors
tion to punish him for conu,mpt of a prior from a judgment of the Supreme Court, Hinderma
order of the same court, adjudged him in Suffolk County, Gerard, J., which annulled December
conu,mpt and permitu,d him to purge him- determinations of building inspectors and a tcrminatic
self thereof by, inter alia, rendering an determination of the zoning board of ap- of the T(
account. peals which denied applications for penni&- 1981, whit
Order reversed, without coats or disburse- sion to change the fonn of ownership of for, penni,
ments, and matter remitted to Special Term certain premises., ,The SU\ll"'me Court, Ai>' crahip of
for further proceedings consisu,nt herewith, pellau, Division, held that special term cor- Judgm(
[1,2] The record before this court fails recUy concluded that the conversion of bursemen
to indicate whether defendant was ad- ownership of the subject property from s [1,2]
judged guilty of civil or criminal contempt, corporate form to a condominium form WS8 pJoyed by
.. and at the hearing which must be conduct- not violative of the town zoning ordinance miniums (
ed, the course being pursued must be made provided the property's use as a motel reo minium f
clear. Adjudging defendant to be in cnmi. mained unchanged. rather th
nal conu,mpt is not warranted on this ree- ,Affirmed. proper C(
ord, as there is no finding that the alleged planning
disobedience of the prior order of the court Map/ewo<
was willful, and similarly an adjudication of 1. Zoning and Planning 41=>72 wood ViI.
civil contempt is not warranted because Bridge P
there is no finding that defendant's actions Zoning ordinances cannot be employed Park, 11~
were calculated to or actually did defeat, by a municipality to exclude co\ldominiuma Nor does
impair or prejudice the rights and remedies or discriminate against condominium fol'lll ownershi
of the plaintiff (see Matter of Ross v. Shere of ownership, for it is use rather than fol'lll valid exis
wood Diversified Servs" 88 A.D.2d 936, 450 of ownership that is proper concern and of Miami
. N.Y,S.2d 872), focus of zoni'!8' and planning regulations. minium}
Also, defendant denied that he had failed McKinney's TQwn Law S 261. Court Aa
. to turn over any assets of Queens House, as 2. Zoning and Plannblg -76 Chapel 1
was alleged by the receiver. Questions of 418). Ac
fact were raised on that and other issue. Special term' correctly concluded that ",ncluded
that could not be re20lved without a hear. conversion of ownership of property from of the .
ing (see Crisona v. Eastern Props. Improve- corporate form to condominium form wsa form to a
ment Corp" 27 A.D.2d 717, 717-718, 277 not violative of town zoning ordinance Pro- of the Z(
N.Y.8.2d 477; Kamen v. Kamen, 13 A.D,2d vided property's use as a motel remained Southold,
985,216 N.Y,S.2d 715). unchanged, McKinney's Town Law ~ 261. uae as a
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FGL & L PROPERTY CORP. v, CITY OF RYE 333
CUe as 486 N.Y.S.2d 333 (A.D. 2 Dept. t98!11)
N.Y,2d 942, 298 N,Y.S,2d 724, 246 N,E.2d miniums, was invalid, since it constituted
527), improper regulation of form of ownership ,
of property,
w 3. Zoning and Planning <S=o61 :
o ~ KEY NUMBER mUM
T Municipality does not have power to
regulate manner of ownership of legal es-
tate, as it is use rather than form of owner-
109 A,D.2d 814 ship that is proper concern and focus of
FGL & L PROPERTY CORP., zoning and planning regulations.
Appellant-Respondent,
v. Weil, Gotshal & Manges, New York City
The CITY OF RYE, et aI., (Peter Grue"berger, Lesley E. Goldberg
Respondents.Appellants. and Robbie Narcisse, New York City, of
Supreme Court, AppelJate Division, counsel), and Berger, Steingut, Weiner,
Fox & Stern, New York City (Theodore S.
Second Department. Steingut, New York City, of counsel), for
March 18, 1985, appellant-respondent (one brief filed),
Richard M, Gardella, Corp, Counsel, Rye,
Action was brought seeking to have for respondents.appelJants,
declared unconstitutional an ordinance Meighan & N ecarsulmer, Mamaroneck
which purported to create new zoning dis- (Garrison R. Corwin, Jr" Mamaronick, of
trict, applicable only to one person's 22- counsel), for friends of Marshlands, Inc. ,
acre lot, and which directed that purported and Federated Conservationists of West-
chester County, Inc., amici curiae. ,
district be maintained in single ownership i,
and that any development of property be Before LAZER, J.P" and MANGANO,
limited to residential condominiums. The BRACKEN and NIEHOFF, JJ,
Supreme Court, Westchester County, John
C. Marbach, J" denied injunctive relief MEMORANDUM BY THE COURT,
against enforcement of ordinance pending In an action, inter alia, for a judgment
hearing to detennine if ordinance was con- declaring Rye City Code ~ 197-13,2 invalid
fiscatory, and appeal was brought, 'The and unconstitutional, plaintiff appeals, as
Supreme Court, AppelJate Division, held limited by its brief, from so much of an
that ordinance was invalid since it consti-
tuted improper regulation of form of Own- order of the Supreme Court, Westchester
County, entered March 5, 1984, as denied
ership of property. injunctive relief against the enforcement of
Reversed. that section of the city code pending a -
hearing to detennine if said section was
1. Zoning and Planning ~1 confiscatory with respect to plaintiff's
property, and defendants cross-appeal from
Zoning is concerned with use of land, so much of the same order as denied their
and not with person who owns or occupies motion for summary judgment declaring
it, said section of the city code valid,
2. Zoning and Planning <S=o61 Order reversed insofar as appealed from,
Ordinance which purported to create on the law, with costs, the second and third
new zoning district, applicable only to one decretal paragraphs thereof are deleted,
person's 22-acre lot, and which directed and it is declared that Rye City Code
that purported district be maintained in ~ 197-13,2 is invalid as it constitutes an
single ownership and that any development improper regulation of the form of owner-
of property be limited to residential condo- ship of property,
;"",,;,
~ ~
, .
., <'-,-~
334 486 NEW YORK SUPPLEMENT, 2d SERIES
The ordinance in question purports to In light of our determination, we do not
create a new zoning district, applicable only reach the other issues.
to plaintiff's 22-acre lot. The ordinance
further directs, among many other things, w
that the purported district must be main. o t UY filUMIU svsnM
tained in single ownership, and further pro- T
vides that any development of the property, 109 A,D.2d 815
which is severely restricted, be limited to FIRE ISLAND PINES, INC.,
residential condominiums. Respondent,
[1) As a fundamental principle, zoning v.
is concerned with the use of the land, and COLONIAL DORMER
not with the person who owns or occupies
it (see, e.g., Matter of Dexter v, Town Bd. CORP., Appellant.
of Town of Gates, 36 N.Y.2d 102, 105, 365 Supreme Court, Appellate Division,
N.Y.S.2d 506, 324 N,E,2d 870; Matter of Second Department.
Weinrib v, Weisler, 33 A,D.2d 923, 307 March 18, 1985,
N.Y.S,2d 603, affd. 27 N.Y.2d 592, 313 N.Y,
S.2d 407, 261 N.E.2d 406; North Fork Mo- Default judgment was entered against
tel v, Grigonis, 93 A.D.2d 883, 461 N.Y.
S.2d 414; Allen v. Town of North Hemp- roofing company in action for damages al.
stead, 103 A.D,2d 144, 478 N.Y,S.2d 919), legedly resulting from defective work,
[2,3] The instant ordinance, which pur- The Supreme Court, Nassau County, John
ports to direct how the property may be W. Burke, J., denied roofing company's mo-
held to the exclusion of all other forms of tion to vacate, and it appealed. The Su.
ownership, must fail because, as a general preme Court, Appellate Division, held that
principle, a municipality does not have the where complaint was properly forwarded to
power to regulate the manner of ownership insurer, which neither filed an answer nor
of a legal estate, as "it is use rather than denied coverage, roofing company was enti.
form of ownership that is the proper con. tled to have resulting unintentional default
cern and focus of zoning and planning reg- judgment vacated, particularly in light of
ulations" (North Fork Motel v. Grigonis, evidence of meritorious defense, and ab-
supra; see also McHenry State Bank v, sent claim of prejudice by opposing party.
City of McHenry, 113 1ll.App.3d 82, 68 Order reversed; motion to vacate
lll,Dec, 615, 618, 446 N ,E.2d 521, 524; CHR granted.
Gen" Inc. v, City of Newton, 387 Mass.
351, 439 N.E,2d 788, 791; Bridge Park Co. Judgment *"143(3)
v, Borough of Highland Park, 113 N,J,Su- Where insured roofing company for-
per. 219, 273 A.2d 397, 399; County of warded complaint alleging defective work
Fayette v. Cossell, 60 Pa,Cmwlth. 202, 430 to its insurer through broker, broker as.
A.2d 1226, 1228; Graham Ct. Assoc. v, sured roofer that insurer would provide
. Town Council of Town of Chapel Hill, 53 defense, and insurer neither filed answer
N .C,App. 543, 281 S.E.2d 418). Although nor disclaimed coverage, roofer was enti-
in the majority of the above cases the gen- tled to have resulting unintentional default
eral principle was invoked to prevent a judgment vacated, particularly in light of
municipality from excluding the condomin. affidavits demonstrating meritorious de-
ium form of ownership, and here the in. fense, and absent claim of prejudice by
stant ordinance permits that form of own. opposing party,
ership to the exclusion of all others, the
result is the same. The city here has at.
tempted to dictate how property may be Jay Berliner, Massapequa, for appellant,
owned, and that is exactly what it is not Harold F, Damm, Mineola, for respon.
authorized to do. dent,
....,
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66 N.Y.2d 111 FGL & L PROPERTY CORP. v. CITY OF RYE 321
. Y.Zd 1118 Cite..... N.Y.9.2c131, (C....pp. .....)
(61 N.Y,2d 481, 494, 474 N.Y,S.2d 699, 463 485 N.E.2d 986
on ~ere- N.E.2d 15 [absent exercise of discretion by 66 N,Y.2d 111
hat any the Appellate Division so egregious as to FGL & L PROPERTY
,nce dU,? amount to an abuse of discretion ,as ~ mat- ..IJ.1. CORP., Respondent,
c sums, ter of law, its exercise of discret.on IS not
the tem. reviewable by us]). The factors listed by v.
e") .and the Appellate Division as the basis for its CITY OF RYE et al., Appellants.
T pen;:s reduction of the award to 25% make clear Court of AppeaJs of New York.
on. e that there was no abuse of discretion as a .
'l~r sup- matter of law. Nor was the Appellate Di- Oct. 24, 1985.
;hl,~~ ~ vision required by Domestic Relations Law
t' ~ 236(B)(5)(g) to analyze each of the Property owner brought action seeking
sec Ion ted . bd'" (5)(d) d 'e
"mainie- factors sts m suo '~slon . an gtv an injunction against enforcement of local .
j " both reasons as to each, It ""mg sufficIent under zoning law, The Supreme Court, Special ,
:"~n re- subdivision (5)(g) that it "set forth ~e Term, Westchester County, Marbach, J" :
elite factors it considered and the reasons for Its held the ordinance valid, and appeal was
1~7u~ decision" (Koblllack v, Kobylack, 62 taken, The Supreme Court, Appellate Divi-
he mai~ N.Y.2d 399, 403, 477 N.Y.s.2d 109, 465 sion, 109 A.D.2d 814, 486 N.Y.S,2d 333,
~elations N.E.2d 829). reversed, and appeal was taken. The
Plaintifrs remaining arguments are ei- Court of Appeals, Meyer, J., held that noth-
. , ther not ""fore us on this appeal, unpre- ing in zoning enabling provisions of Gener-
"~Iamtrff served or without merit. al City Law, historical preservation provi-
, e stat- sions of General Municipal Law nor land-
a'."a,,? {91 On plaintifrs appeal, the order of marks preservation provision of city code
Ie .dlstri- the Appellate Division should be affirmed, empowered city to mandate the manner in
~~~ns. no without costs. . Defendant's cross a~pea] which property may be owned or held or .to
m heu should be dismIssed for want of aggrieve- impose upon the owner of a tract contam'
oj of the ment, the modification made by the Appel. ing historic structures, or purchasers of ;
A.D.2d late Division having been in his favor. properties neighboring the tract, the cost
lIMed 63 of rehabilitation or enhancement of the
I N.E.2d R rt.
N,Y.S.2d WACHTLER,C.J.,andJASEN,MEYE, prope les,
the Con- SIMONS, KAYE, ALEXANDER and TI. Affirmed. .
!..WoSum TONE, JJ., concur in Per Curiam opinion. 4
ward of On review of submissions pursuant to 1. Zoning and Plannlnr '*"'232
Id to be section 500.4 of the Rules of the ~ur: of Zoning laws are to be given strict con-
~essened Appeals (22 NYCRR 500.4): on plamtifrs struction because they are in derogation of
"age-in .p~l, order affirmed, without costs. De- common.law rights.
ntenance fendant's cross appeal dismissed, without
· future, eosts. 2. Zoning and Planning ....21 \
JI There ""ing no inherent power to enact i
,ppe ate d I ti rd. j
ani zoning or Ian use regu a on, an 0 manee ~
Sl a':f ' or local law provision for which legislative '
nY'lt . ".f d.
, . w delegation of power cannot "" oun IS
lscretion IE' .. .
o 5 IIY MUMIU mnM ultra vIres and v01d. i
~~ T I
Bedford. 3. Zonlnr and Planning '*"'5 ,
350, 458 Power to adopt zoning provisions not I
cppellate expressly forbidden by enabling autho~za-
the trial tion may "" implied where there eXIsts ;
,ntage ot independent . j~stification ~or p,?visi?ns J
tor to be within the spmt of the enabling leg.dation. !
jaukOJl, ,
.
.
322 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d III 66 N.Y.2d II~
4. Zoning and Planning ~I, 63 impose upon the owner of a tract contain. which in seVE
Neither enabling provision for resi- ing historic structures, or purchasers of injunction a'
I dential zoning in cities, McKinney's Gener- properties neighboring the tract, the cost tion, a declSl
al City Law fi 20, subd. 24, nor section of rehabilitation or enhancement of the ultra vires, I
i' containing cluster zoning authorization apo properties. The order of the Appellate Di- spot zoning'
. plicable to city, McKinney's General City vision should, therefore, be affirmed, with weU-consider<
. Law fi 37, empowered city to enact zoning costs. damages und
~ law requiring, inter alia, that lot containing ants moved f
two historic buildings have a minimum I ing the local
1 area, remain in single ownership, buildings Plaintiff is the owner in fee of a parcel of wise dismiss
1 not contain more than three and six units, land situated in the City of Rye (City) of cross-moved i
:~~
respectively, and that owner or purchasers approximately 22 acres on which are loca~ in its favor.
I of properties neighboring tract supply cost ed the Jay Mansion, built in 1838 by Peter there were it)
of rehabilitation or enhancement of the Jay, son of John Jay, the first Chief Justice ality requirin
"i". properties. of the United States Supreme Court, and as a hybrid
,
'~ 5. Zoning and Planning C=61 another building known as the Carriage zoning and hi.
'i: House, built around 1912 in the Colonial was not inval
~1 Neither historical preservation provi. Revival style. There is some dispute be- ing and had
;'i sions in section of General Municipal Law,
tween the parties conceming the historic or accordance w
:'~' McKinney's General Municipal Law fi 96-&, landmark significance of the Carriage plan, and that
,i'~, nor landmarks preservation provision of House, but for purposes of this opinion we not lie with
;~\ city code authorized city to enact zoning assume that both buildings have such sig. Defendants' r
law mandating that entire 22-acre district nificance. It is unnecessary to detail the was, therefo,
remain in single ownership with developer negotiations carried on from 1979 until demonstrated
to rehabilitste exteriors of two historic section prevel
:' buildings, and proscribing use of any new 1983 between the City and plaintifrs prede-
cessor in title I and between the City and nomic benefit
i1 dwelling unit until that rehabilitation had plaintiff, and the various rezoning propos- cross motion
been accomplished, thereby effectively re- ed to the API
~ quiring that cost of rehabilitation be shared als that were made during those negotia. its brief, fron
tions, although a few pertinent and uncoil-
,{ by owners in district of units other than tested facts developed during those negoti- as to the sect
buildings in question. ations are referred to below. fendants app
When acquired by plaintifrs predecessor order as direc
i; and denied s
Henry J. Smith and James G. Fine, White the property was zoned R-2, as were neigh. the section v
, Plains, for appellants. boring properties, some of which were
" Appellate Dil
~ JJ.1.Peter Gruenberger, Lesley E. Gold- used, however, for public purposes or of. N.Y.S,2d 333,
berg, Robbie Narcisse and Theodore S. flce use under nonconfonning uses. R-2 ferred only i
St.eingut, New York City, for respondent. zoning pennits single-family detsched section, rever:
homes on not less than one-ha1f-acre plots, uinva1id as it
~ ...lJ.isOPINION OF THE COURT and plaintifrs property would have accom. lation of the
modated 38 such dwellings. In June 1983, ty." (109 A.I
MEYER, Judge. the City Council adopted Local Law No, 333,) We a'
Nothing in the zoning enabling provi- 5-1983, which added a new section 197-13.2 consider the {
sions of the General City Law, the histori- to the City Code creating the Alansteo the zoning ell
- cal preservation provisions of the General Landmarks Preservation District (LPD-A), the City actee
Municipal Law or the Landmarks Preserva- As the revised zoning map demonstrates, late ownershi
tion provisions of the Rye City Code em- and defendants do not deny, the only prop' ing in the hist
~ powers the City to mandate the manner in erty zoned LPD-A was plaintifrs 22 acres, of the Gener.
~ which property may be owned or held or to Plaintiff then began the present action, marks Prese,
I. Title has apparently been transferred back 10 no1 moot the appeal (Ptu:ific Blvd. Auoc. v. City Code, upon b
the predecessor by plaintiff. but the fact that of Long &4ch, 38 N.Y,2d 766. 381 N,y.s.2d 55. whether con:
there bas been no substitution of parties does 343 N.E.2d 772). junction with
'~
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.
. 'i,,": .,,;i/, ";;"'\\:':';;'flii;..w~~i'i~~i~;ti..:;'~""";,,;fl;,\'\hli"~~;,,;,,.';;;i;,,~~,;,,:;";',i"~;".I(i<r';;.'i"';"'"'"'~;''';;''' ,,,,;',;,"],; ,-"""",'"',,,,, ,~:IO.,~,,,"",,, ."'" ""
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,
66 N.Y.2d 115 FGL & L PROPERTY CORP. v. CITY OF RYE 323
Clleu49!1N.Y.s.2d321 (CtApp. 1985)
which in seven causes of action sought an sions of the General City Law, empowered
injunction against enforcement of the sec- the City to enact the section in its present
lion, a declaration that...lJ,I4it is invalid as form. We, therefore, aff1l'lll.
ultra vires, unconstitutional, site specific,
,pot zoning and not in accordance with a II
wel1-<:onsidered zoning plan, and money The section as enacted declares that in
damages under 42 U.S.C, ~ 1983, Defend. order to provide for flexibility in the City's
aob! moved for summary judgment declare zoning "so that the significant historic
iog the local law constitutional and other- buildings, the Jay Mansion and the Car-
wise dismissing the complaint. Plaintiff riage House, and site features which char-
cross.moved for partial summary judgment acterize this site . . . are preserved for
in its favor. Supreme Court held that the future and that new construction be ,
there were issues concerning constitution- undertaken with care and consideration for
ality requiring trial, but that the ordinance, these features and the environment", the
as a hybrid containing elements of both new district is adopted. Subdivision B es-
.\:: wning and historic preservation regulation, tablishes standards for the new district,
J was not invalid as site-specific or spot-zoo- which include that "[t]he lot as approved
iog and had not been shown not to be in shall have a minimum area of twenty-two j
t accordance with the City's comprehensive (22) acres and shall be and..w,remain in
! plan, and that the section 1983 action would single ownership"; that "[t]he exterior of
j not lie with respect to legislative action. the Jay Mansion aod Carriage House shall
Defendants' motion for summary judgment be rehabilitated and the interiors converted
j was, therefore, granted unless plaintiff to residential use", for the Jay Mansion not
t demonstrated at a plenary trial that the to exceed three units and for the Carriage
,e<'lion prevented it from realizing any eco- House not to exceed six; that there be a
! oomic benefit from its property. Plaintiff's trapezoidal view way 90 feet in width at
I cross motion was denied, Plaintiff appeal. the rear of the Jay Mansion and 300 feet in
ed to the Appellate Division, as limited by width at the southerly property line; that
, ib! brief, from Special Term's order except the new dwelling units may not be occupied ;
f as to the section 1983 cause of action; de. until the exteriors of the Jay Mansion and
t fendanb! appealed from so much of that the Carriage House have been restored and
order as directed a trial on constitutionality the interiors converted to residential use
aod denied summary judgment declaring and available for occupancy and that a
the section valid and constitutional. The bond be posted to assure such rehabilita-
\ Appellate Division, 109 A,D.2d 814, 486 tion and eonversion; and that the applica-
~ N,Y,S,2d 333, in a memorandum which re- tion for site plan approval be accompanied
~ ferred only to the zoning aspect of the by, among other things, a draft condomin.
:~ section, reversed and declared the section ium offering statement together with a
'if
,
, lIinvalid as it constitutes an improper regu- draft of an easement and/or agreement for
i lotion of the form of ownership of proper- perpetual maintenance of the exteriors of
,
i ty." (109 A,D.2d, at p. 815, 486 N,Y.S.2d the Jay Mansion and the Carriage House.
333,) We agree that it is unnecessary to Neither the statutes authorizing enactment !
consider the constitutional issues and that of zoning provisions nor those dealing with ,
,
". the zoning enabling provisions under which historic landmarks empower the City Coun-
I the City acted do not authorize it to regn' eil to adopt a local law with such provi-
late ownership, and hold further that noth- sions, nor does anything in the Landmarks
I ing in the historical preservation provisions Preservation chapter of the City Code BUP-
of the General Municipal Law or the Land. port its so doing.
marks Preservation chapter of the City
Code, upon both of which the City relies, A
whether considered separately or in con- 11-3] Zoning laws are to be given a
, junction with the zoning enabling provi^ strict construction because they are in der-
,
i ,
.
324 495 NEW YORK SUPPLEMENT. 2d SERIES 66 N.Y.zd 115 66 N.Y:
ogation of common.law rights (Matter of made with reasonable regard to the charac- .J.1l,notes
#0 E. 102nd St. Corp, v. Murdock, 285 ter of buildings erected in each district, the a differ,
N.Y. 298, 304, 34 N,E.2d 329; Bee, Matter value of land and the use to which it may proper(
of Friahman v. Schmidt. 61 N.Y.2d 823, be put, to the end that such regulations minium
473 N.Y.S.2d 957, 462 N.E.2d 134). More- may promote public health, safety and wel- with th
over, there being no inherent power to en. fare and the mOBt desirable use for which that the
act zoning or land use regulation, an ordi- the land of each district may be adapted or, if di
nance or local law provision for which legis- and may tend to conserve the value of no inde]
lative delegation of power cannot be found buildings and enhance the value of land it of suk
is ultra vires and void (Matter of Kamhi v. throughout the city." (Emphasis supplied,) which t
Planning Bd., 59 N.Y,2d 385, 465 N.Y.s.2d Nothing in that subdivision speaks to ownersh
865, 452 N.E.2d 1193). Power to adopt ownership rather than use, and while it Nor d
provisions not expressly forbidden by the does not expressly forbid provisions rela~ contains
enabling authorization may, however, be ing to ownership, the City suggests noth. f applicab
implied where there exists independent jus- ing within the spirit of zoning legislation such jus
tification for provisions within the spirit of generally or this subdivision specifically ~ Plannin
the enabling legislation (Collard v, Incor. that offers justification for implying such sonable
porated Vii. of Flower Hill, 52 N. Y.2d 594, power. Indeed, the cases are legion, in this provide,
602, 439 N.Y.S.2d 326, 421 N,E.2d 818), State and elaewhere, which hold that "zon- I land not
[4J The enabling provision for resi- ing . . . in the very nature of things has district
dential zoning in cities is General City Law reference to land rather than to owner" what th
~ 20(24).' That subdivision empowers a (Vernon Park Realty v. City of Mount Plannin
city "To regulate and limit the height, bulk Vernon, 307 N.Y. 493, 500, 121 N.E.2d 517) appropri
and location of buildings hereafter erected, and that it is a "fundamental rule that nance (,
to regulate and determine the area of zoning deala basically with land use and N.Y.2d
yards, courts and other open spaces, and to not with the person who owns or occupies N.E.2d
regulate the density o!.w,population in any it" (Matter of Dezter v. Town Bd., 36 town, 3t
given area, and for said purposes to divide N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 the secl
the city into districts, Such regulations N.E.2d 870; accord, Matter of Weinrib v, cates all
shall be uniform for each class of buildings Wei.der, Z1 N.Y.2d 592, 313 N.Y.S.2d 407, deviatior
throughout any district, but the regulations 261 N.E.2d 406, affg. 33 A.D.2d 923, 307 upon ap
in one or more districts may differ from N.Y.S.2d 603; Allen v. Town of N. Hemp- accomml
those in other districts. Such regulations Btead, 103 A.D.2d 144, 146, 478 N.Y.S.2d houses (-
shall be designed to secure safety from 919; North Fork Motel v. Grigonis, 93 opment
fire, flood and other dangers and to pro- A.D,2d 883, 461 N.Y.S.2d 414; Bee, Matt", ownersh
mote the public health and welfare, includ- of Park W. ViL ABBOC. v. Abrams, 65 sioDs, ti
ing, so far as conditions may permit, provi. N.Y.2d 716, 492 N.Y.S.2d Z1, 481 N.E.2d implied
sion for adequate light, air, convenience of 567). Most of the out-of-State cases hold,
access, and the accommodation of solar en- as did the North Fork Motel case, that . I
ergy systems and equipment and access to zoning ordinance cannot be used to exclude [5J A
sunlight necessary therefor, and shall be a condominium.1 The City correctly of the (
:z. Subdivision 2S authorizes regulation and re.- (387 Mass. 351, 439 N.E.2d 788); Bridge Parle exist, th
striction of trades and industries and, therefore. Co. v, /kJrou&h of High/4nd Park (113 NJ.super, I the hist<
is not a source of power for the local law under 219, 273 A.2d 397); GmJuzm Ct. Assoc. v. Town
consideration. In any event, it provides no Council (53 N,C.App. 543. 281 S.E.2d 418); su, also ree,
greater support for Local Law No.5 than sub<li. McHenry SIGle Bank v, Cir, of McHenry (113 has R~
vision 24, for it authorizes no more than control Ill.App.3d 82, 68 Ill.Dec. 615. 446 N,E,2d 521); N.H.4C
of where "buildings, designed for specific uses" MtqJ/ewood ViL Ten<lnts As.tn. v. Mop/ewood V~ CosseJ/.
may be located and of "the uses for which (116 NJ.super. 372, 282 A.2d 428); bUI '''- na/d's A
buildings may not be erected or altered.H Goldman v. Town of Dennis (375 Mass. 197,375 Zoning
3.. City of Miami Be4ch v. Arlen King Cole Condo. N,E.2d 1212); Griffin Dev. Co. v, Cily of Oz"",d 4. The <
minium As.tn. (302 So,2d 777 lFlal. cerl denied (39 Cal.3d 256, 217 Cal.Rptr. 1, 703 P,2d 339 (~ 281)
308 So.2d 118); CHR Gen. v. Cir, of Newlon [1985]). The general proposition is, however, whatm
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.
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!
,j
66 N.Y.2d 118 FGL & L PROPERTY CORP. v. CITY OF RYE 325
Cite.. 495 N.Y.8.2d 321 (CLApp. 1985)
.lI,17notes that exclusion of condominiums is tained in section 96-a and article I>-K of
a different proposition than requiring that the General Municipal Law or the Land.
property in a given area be held in condo- marks Preservation provision of the Rye
t minium ownership. However, we agree City Code (ch. 117).
with the Appellate Division's conclusion Section 96-a of the General Municipal
that the distinction is without a difference, Law reads as follows: "In addition to any
or, if difference there is, that there exists power or authority of a municipal corpora-
I no independent justification within the spi...
,I it of subdivision 24's zoning provision from tion to regulate by planning or zoning laws
~ which the power to require condominium and regulations or hy local laws and regu-
ownership can be implied. lations, the governing board or local legis.
I lative body of any county, city, town or
, Nor does General City Law ~ 37, which
t village is empowered to provide by regula-
~ rontsins the cluster zoning authorization tions, special conditions and restrictions for
1; applicable to cities such as Rye, provide
, the protection, enhancement, perpetuation
i ,uch justification. Under its provisions the and use otw,places, districts, sites, build-
" Planning Board is authorized to make rea-
! ings, structures, works of art, and other
'k !!Unable changes in the zoning regulation,
! provided that the average density of the objects having a special character of special
~. historical or aesthetic interest or value,
~ land not he greater than is pennitted in the
'( Such regulations, special conditions and re-
! di,trict in which the land lies, Although
f1 what the legislative body can authorize its strictions may include appropriate and rea-
I Planning Board to do, it can do itself by sonable control of the use or appearance of
, neighboring private property within public
appropriate amendment of its zoning ordi-
~ nance (see, Cummings v. Town Bd., 62 view, or both. In any such instance such
" N,Y.2d 833, 834, 477 N.Y.S.2d 607, 466 measures, if adopted in the exercise of the
I,
~ N,E,2d 147; Rodgers v, Village of Tarry- police power, shall be reasonable and ap-
I propriate to tl,e purpose, or if constituting
,I to!07l, 302 N,Y, 115, 123, 96 N.E.2d 731),
the ,ection contains nothing which indi. a taking of private property shall provide
i~: cates an intention to do more than allow for due compensation, which may include
deviation from fixed dimensional zoning the limitation or remission of taxes." Arti.
upon application of the owner in order to cle I>-K is broader in scope, covering histor-
accommodate group houses, apartment ic preservation not only by regulation but
houses or stores." Power to require devel. by governmental acquisition as well. See-
opment of a 22-acre parcel in condominium tion 119-bb(4) defines "historic preserva-
ownership cannot be implied from its provi. tion" to mean "for the purposes of this
.ion" therefore, any more than can it he article and notwithstanding any other pro-
implied from General City Law ~ 20(24). vision of law, the study, designation, pro-
tection, restoration, rehabilitation and use
B of buildings, structures, districts, areas,
[5J Authority to enact section 197-13,2 sites or objects significant in the history,
or the Code of the City of Rye does not architecture, archeology or culture of this
",i,~ therefore, unless it can he found in state, its communities, or the nation," The
the historical preservation provisions con- operative provisions of the article are con-
also recognized in noncondorninium cases (VIa. materia (see. Delaware Midland Corp. v. Incor-
"'0$ RMlty Co. v. Uttle Boars Head Dist.. 101 poroled Vii, of W,,'hompton /ko&h, 39 N,Y.2d
S,H, 460. 146 A,2d 257: County of Fayette v, 1029. 387 N,Y.S,2d 248. 355 N,E,2d 302. afft: on
Cossel( 60 Pa.Commw, 202, 430 A.2d 1226; Fer. opn at Special Term 79 Misc.2d 438. 359 N.Y.
..ldS AppeIll, 17 Pa D " C 2d 291: Okvson v, S.2d 944), the Citys authority is not enJumced.
Zooi"g Bd.. 71 R.l, 303, 44 A,2d 720), for both speak to the "development of land in
.. The cluster provisions of the Town Law such a manner as to promote the most appropri.
(! 2Sl) and the Village Law (~ 7-738) are some- ate use of land",
..ilat more detailed, but even if read in pari
- .
f
326 495 NEW YORK SUPPLEMENT, 2d SERIES 6tI N.Y.2d 118
tained in section 119-dd, which is set forth of the Jay Mansion and the Carriage
in full in the margin.' House, proscribe the use of any new dwell.
..w.Of importance to the present issue is ing unit until that has been done, thus
the fact that the regulation, special condi. effectively requiring that the cost of reba.
tion or restriction by which section 119- bilitation be shared by owners in the 00.
dd(1) authorizes control of private property trict of units other than the Jay Mansion
, is "for the protection, enhancement, perpetr and the Carriage House, and by dictating
uation and use of places, districts, sites, condominium ownership of the entire 00.
buildings, structures". Nothing in the sub- trict impose the cost of maintenance of the
division spe;t.ks to regulation of ownership. exteriors of the Mansion and the Carriage
Noteworthy also is the fact that though House upon owners of such units as well,
section 119-bb(4) refers to "restoration" The right to impose reasonable controls
and "rehabilitation", those words are not to on the use and appearance of neighboring
be found in section 119-dd(l), presumably private property within public view, given
because it was intended to pennit a munici- by General Municipal Law ~~ 96-a and
pality acting under section 119-dd(3) after 119-dd(l), cannot be stretehed to cover pay.
acquisition of a fee or lesser interest to ment of restoration and maintenance cost>,
reatore and rehabilitate historic buildings for such a construction, which would im.
and sites, but not to permit the municipali- pose those costs upon every unit in the
ty to impose an obligation to restore or district, not just those "within public view,"
rehabilitate such buildings or sites as ro- would render meaningless the limitation in.
main in private ownership. Here the Code tended by those words which appear in
sections creating the Alansten Landmarks both sections. Yet there is no question
Preservation District not only mandate that that such was the Council's intention, for
the entire 22-acre district remain in single its findings with respect to the final envi.
ownership but also impose upon the devel. ronmental impact statement flatly stated
oper the duty of rehabilitating the exteriors that "[o]uly under [condominium] OWne,..
S. The section. entitled "Local historic preserva- omerwise. acquire the fee or any lesser interest,
tion programs.... reads as follows: development right. easement, covenant or other
'''In addition to existing powers and authori. contractual right necessary to achieve the pur-
ties for local historic preservation programs in. poses of this anicle. to historical or cultural
cluding existing powers and authorities to regu. property within its jurisdiction. After acquisi.
laIc by planning or zoning laws and regulations tion of aay such interest purs\Ulnt to this subdi.
or by local laws and regulations for preserva. vision. the effect of the acquisition On the valua-
tion of historic landmarks and districts and use tion placed on any remaining privllte interest in
of techniques including transfer of development such property for purposes of real estate taXa.
rights. the legislative body of any county, city. tion shall be taken into account.
town or village is hereby empowered to: "4. Designate. purchase. restore, operate,
"1. Provide by regulations, special conditions lease and sell historic buildings or structurCi.
and restrictions for the protection, enhance.. Sales of such buildings and structures shall be
ment. perpetuation and use of places, districts, upon such terms and conditions as the 10cal
sites, buildings, structures, works of art and legislative body deems appropriate to insure the
other objects having: a special character or spe.-
cial historical, cultural or aesthetic interest or mainternmce of the historic quality of the build-
value. Such resulations, special conditions and ings and strUCtures, after public notice is appre>
restrictions may include appropriate and rea. priately given at le:ast thirty days prior to the
sonable control of the use or appearance of anticipated date of availability and shall be for
neighboring private property within the public fair and adequate consideration of such build.
view, or both. ings and structures which in no event shall be
, "2. Establish a landmark or historical preser- less than the expenses incurred by the munici-
vatioD board of commission with such powers pali.ty with respect to sltCh bUildings and struc.
as are necessary to carry out all or any of the tures for acquisition, restoration, improvemem
authority possessed by the municipality for a and interest charges.
historic preservation program, as the loca1legis- .5. Provide for transfer of development
lative body deems appropriate. rights for purposes consistent with the purposa
;'3. After due notice and public hearing. by of this article."
purchase, gift. grant, bequest, devise, lease or
I .
"' ,',,,' , ",',.. ,""'....r~....... ,j" "--,_"~,,,,;"",i;,,,,,,,,","""('il",,'.i'."\"";';"''';'~;,'~";j,,,,''''''''; ,,,' , "......, , ,r", ,," "'. "'"."',,.,.....~......;..........,~ "~"..""...".....,,(,,,..,." ".",..'._ ." 'm;,.,"{"'~ """
- ...
~
i
"
,
j 66 N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE 327
Clteu.f9.!JN.Y.8.2d32t (Ct.App. 1985)
ship can the cost of maintaining the exteri. out violating the Constitution, nor need we
ors of the historic buildings be shared reach the question whether as applied to
Jlo>by all the homeowners", and that theme plaintiff's property section 197-13.2 is con-
is repeatedly emphasized in the City's brief stitutional. We hold rather that in light of
" !o this court, While that may be true, the well-recognized rule that statutes are
,
, clearer authorization to enact such provi- to be construed so as to avoid constitution.
*
i ,ions than are contained in the General al issues if such a construction is fairly
I Municipal Law sections referred to is es. possible (Matter of Peters v. New York
1 ,ential before section 197-13.2 can be up- City Bous. Auth., 307 N.Y. 519, 527-528,
i
i held against the argument that it was be- 121 N .E.2d 529; see, Peopte v. Felix, 58
yond the City's power to enact. N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446
! N.E,2d 757; McKinney's Cons.Laws of
, Noteworthy also, in view of the require-
, N.Y., Book 1, Statutes ~ 150), the General
, ment that the Mansion and Carriage House
i be completely restored before any other Municipal Law sections under consideration
; unit can be occupied i. the absence from as presently written should be construed
not to authorize imposition of restoration
the General Municipal Law sections of au- costa solely upon plaintiff and purchasers
. thority to require restoration, as distinct
. from plaintiff or maintenance costs upon
i from maintenance. Landmark and historic
I preservation laws normally prevent altera- purchasers of properties other than those
i tion or demolition of existing structures to be preserved.
.t
~! unless the owner Can demonstrate hardship C
(Penn Cent, Tramp. Co. v. City of New In view of the distinctions between zone
. York, 42 N.Y.2d 324, 330, 397 N,Y.S.2d ing regulation, historic district regulation
. 914,366 N.E,2d 1271, alld. 438 U.S. 104,98 and landmark regulation recognized in
I g,Ct. 2646, 57 L.Ed.2d 631), but if they
... Pen'l1J.21 CenL Transp. Co. v, City of New
~
'k place an undue and uncompensated burden
, on the individual owner may be held uneon- York, 42 N.Y.2d, at p. 330, supra, 397
! N.Y.S,2d 914, 366 N.E.2d 1271, we note
\ ,titutional (Lutheran Church in Am. v.
I City of New York, 35 N.Y.2d 121, 129, 359 that chapter 117 of the Rye City Code deals
l with landmarks preservation and is re-
, N,Y,S.2d 7, 316 N.E.2d 305) because "it
c,
l? ferred to in section 197-13,2(C)(1). As
q forces the owner to assume the cost of
t~ chapter 117 read when the Alansten Pres-
I providing a benefit to the public without ervation District section was enacted, land-
I recoupment" (French Investing Co. v. City
I mark designation required the property
, o[New York, 39 N,Y.2d 587, 596, 385 N.Y. e
\ owner's consent, but effective December 7, .
:'< g,2d 5, 350 N,E.2d 381; see, Dunham, A
(I 1983, chapter 117 was amended to remove
~t Legal and Economic Basi3 For City Plan- the consent requirement and provide for
.ing, 58 Colum.L,Rev. 650, 665). Here, landmark designation by the City Council
society at large bears no part of the cost of alone,' and effective July 18, 1984, the
re,!oration, it is rather to be borne initially Alansten 22-acre site and the exteriors of
't by plaintiff and ultimately by the purchas- the Jay Mansion and of the Carriage House
ers of dwelling units within the district. were designated as protected. Nothing in
Yet the City's expert appraiser agreed that that designation or in the provisions of
~, re,toration costs of approximately $627,000
chapter 117, which concern only mainte-
for the Jay Mansion and $588,000 for the nance of a landmark and the circumstances
Carriage House would be required. under which it can be demolished, provides
We do not hold that the General Munici- support for the provisions of section 197-
pal Law sections could not be drafted to 13.2 requiring that the Alansten property
impose restoration costs on an owner with-- be held in single ownership in condominium
6. On June 18. 1984, the AIaosten 22-acre plot before Supreme Court, Westchester County, in a
was so designated. The constitutionality of the dechl.ratory judgment action entitled DGM Part.
amended version of the chapter is awaiting trial ".....Rye v. City of Rye.
",1., - -.." - ,
I .
T
328 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 121
form or the imposition of restoration, as er to add request for reductions in unpro-
distinct from maintenance, costs upon the tested assessments on improvements,
property owner and ultimately upon pur- Affirmed.
chasers of dwelling units within the dis. Wachtler, C.J., filed dissenting opinion
trict. in which Meyer and Kaye, JJ., concurred.
For the foregoing reasons, the order of
the Appellate Division declaring Rye City TauDon 4'>493.7(1)
Code ~ 197-13.2 invalid is affirmed, with
costs. Court was without authority to grant
amendment to petitions alleging error in
WACHTLER, C.J., and JASEN, SI- assessed value of land only, based on pro-
MONS, KAYE. ALEXANDER and TI- tests similarly limited, to permit taxpayer
TONE, JJ., concur. to add request for reductions in unprotest-
Order affirmed, with costs. ed assessments, on improvements.
w ..wsAdolph Koeppel, Anne J. Del Casino
o ~.tyHuM'f.snnM and Donald F. Leistman, Mineola, for ap- ,
T pellant.
Edward G. McCabe, Co. Atty. (Joshua A. I
Elkin, Mineola, of counsel), for respon- ,
dents. I
(
485 N.E.2d 993 I
66 N.Y.2d 122 ~OPINION OF THE COURT 1
SIMONS, Judge. I
~In the Matter of STERLING i .
I
ESTATES, INC., Appellant, Petitioner is the owner of real property i f
in Valley Stream, New York, known as the ! 0
v.
Green Acres Shopping Center. It has insti, , a
.
BOARD OF ASSESSORS OF the tuted several proceedings pursuant to Real , .I
COUNTY OF NASSAU et aI., Property Tax Law article 7 seeking a re- i A
Respondents. duction in the land assessments on the sev- l )
Court of Appeals of New York. eral parcels making up the shopping center . A
\
property for the tax years 1967/1968 i "
Oct. 24, 1985. through 1977/1978. In 1982 it moved to , cJ
,
amend the petitions requesting, along with B
f N
other relief, permission to allege error in i
,
Taxpayer moved to amend petitions the assessed value of lots not previously !
filed in tax certiorari proceedings to in- protested and in the assessed value of Un. [ p'
crease amount of claimed reductions on provements on lots that had been protest- ! fi
basis that assessments were unequal, ex. ed. Special Term denied that relief, hold. ...w
eessive, or otherwise valid. The Supreme ing that it lacked jurisdiction to permit so
Court, Nassau County, Farley, J., denied amendment of the petitions to add a chal- m
motion, and taxpayer appealed. The Su- lenge to lot or improvement assessments po
preme Court, Appellate Division, 104 which had not been protested previously 1 w:
A.D.2d 599, 479 N.Y.S.2d 381, aff1flDed. during the statutory period for administra. s.
On appeal by permission of the Appellate tive review. The Appellate Division af, se:
Division, the Court of Appeals, Simons, J., firmed, with one judge dissenting (104 taJ
held that Court was without authority to A.D.2d 599, 479 N.Y.S.2d 381). On this bl-
grant amendment to petitions alleging er- appeal petitioner presses only the court's im
ror in assessed value of land only, based on ruling denying amendment to add a chal- ha
protests similarly limited, to permit taxpay- lenge to the assessed value of the improve- pu
,
!
,
:
!
I
.. '" ,".".....-'.'..1Iii
"''''''','''''',''''''''''''''''''',"''''''''''' '.O!" , """""","""" 'I" " ." """,'." "'-".'"''''''''-''' ""
k',.. . 'f'~ ,',;.,. .)~f;'
'~;\!Ai#ti,;,;~;~}j::~;l{,:;A:'
:'?'J{~j:,~lr
,~~"
">';,."/"
SUMMIT SCHOOL v. NEUGENT 77
CIte... App.DIv., 442 N.Y.s.2d '73
ducted on the premises which are the sub- school, the details of the operation of the
ject of the special permit (Matter of Com- educational processes of the institution, and
munity Synagogue v. Bates, 1 N.Y.2d 445, also equally improper and beyond its power
154 N.Y,S.2d 15, 136 N.E.2d 488: Matter of to impose such conditio..., as here, by an
Schlosser v. MichlU!/is, 18 A.D.2d 940, 238 agreement with the applicant.
N. Y .S.2d 433: Matter of Oakwood Is. Yacht [6] To the extent that appellants may
Club v. Boatd of Appeals, 32 Misc.2d 677,
WI N.Y.S.2d 907; Matter of Long Is. Light. be properly precluded by a prior waiver of a
Co. v. Voehl, 'K/ Misc.2d 943, 211 N.Y.S.2d statutory or constitutional right to chal-
576, affd. 15 A.D.2d 512, 222 N.Y.S.2d 589: lenge the official action of the municipality
Matter of De Ville Homes v; MichlU!/is, in relation to zoning, such waiver is ineffec-
Sup., IDl N.Y.S.2d 129; Bernstein v. Boatd tual to foreel""" such attack where the
of Appeals, Vii. of Matinecock, 60 Misc.2d right concerns a matter of public policy (see
470,302 N.Y.S.2d 141, app. dsmd. 31 A.D.2d Brous v. Town of Hempstead, 'K/2 App.Div.
650, 297 N.Y.s.2d 702, mol for Iv. to app. 31,69 N.Y.S.2d 258).
I By their agreement, the appellants have
~ den. 23 N.Y.2d 646, 299 N.Y.S.2d 1025, 247
N.E.2d 498). ' effectively waived all objections to the
Where, as here, the special permit con. Uconditions subsequent", except those under
tains specific conditio... which have been which the municipality sought to assume
the subject matter of an agreeme"t be- control over some aspects of the educational
tween the Board of Appeals and the appli- process of the school, an effort for which it
cant, such conditions must also pertain ex- was neither professionally equipped nor Ie-
elusively to the zoning use of the land and gaily authorized to undertake.
not to the details of the operation of the [7] Th""" Uconditions subsequent"
business to be thereon conducted, which, in which may intrude upon the educational
this case, concerns the teaching of handi- processes of the appellants, as opposed to
capped children with learning disabilities, their use of real property, are contrary to
pursuant to a constitutional mandate im- public policy and may not be the subject
posed upon the State to "provide for the matter of a waiver.
maintenance and support of a system of Our inquiry is now focused upon many
f_ common schools, wherein all the chil. dause! of the Uconditions subsequent" des-
dren of this state may be educated." (N.Y. ignated UD" ~ which, for the reasons herein-
Const., art. XI, f 1; emphasis added.) below stated, suffer such infirmity. It is
[5] We are dealing here with a private there provided as follows:
school teaching enterprise; authorized and .'D. Students will be under 18 years of
operated under contract to carry out the age and will be limited to th""" with
State's obligation to provide education for so-called 'Learning Disabilities': regular
such handicapped children with learning educational classes will be held during the
disabilities, pursuant to article 89 (ff 4401- months of September through June, in-
4409) of the Education Law, and it would elusive, on Mondays through Fridays, in-
not only be contrary to "the strong public elusive, from approximately 9:00 A.M. to
policy of the State which favors the educa- approximately 4:00 P.M.; any athletic or
tion of all children, however handicapped" recreational activities shall be of second.
(Rogers v. Association for Help of Retarded ary importance and will be held either
Children, 308 N.Y. 126, 132, 123 N.E.2d 806, indoors, or sufficiently distant from the
emphasis added; Matter of Wiltwyck north and south boundaries of the proper-
School for Beys v. Hill, 11 N.Y.2d 182,227 ty, both, to the end that neighboring
N.Y.S.2d 650, 182 N.E.2d 268, supra), and owners will not, he disturbed by loud
in excess of the legislative power conferred noise or otherwise; no summer camp or
upon a municipality, to impose, as a condi- vacation activities of any kind will be
tion of a special use permit for a private held or maintained at any time on the
I .
.
.
S P.O.K.RSA. INC. v.VlLLAGE OF NEW PALTZ 479
, 'a...S" N.Y.l.2tlm (.\.11.3...... 1911I)
xecutive Law ff 37G- plied) (Exeeutive ,Law fornert 383, re- fies 88 multifamily dwellings, into condo-
Multiple Residence pealed, J;y, ,1..1981, ch., 707, ,I 12)., ,miniums, also considered multifamily dwell-
;0 certificates of occu. '.,.',,'" ",'..' ,'"' I, .'f,' " ',' .,
'I'he ce~te8 ot occupancy issued in con- ings, it goes beyond the Village's enabling
Residence Law I 302), nection, ~th:p11lilitiff'~,apartment complex autho~tion and ~erefore the local law is
mnicipalities to enact frollll963to,l969,. proclaim that the build- ultra vtres and ,voId (He, FGL If L Prop.
I laws (MultipleReai- ings "~ritOn'D(ed) to, all of: the require- Corp.v.City oj R1fJJ, 1II/.prtJ, 66 N.Y.2d"at
). f ments of the applicable provisions of the 115" 495 N.Y .S.2d 321, 485 N .E.2d 986;
-
the third cause of ac- law" ",dsting' 811 of the ~te, of issuance ,Norl.h Fcwk Motel'!'. ,(}rigong, III/.pm).
its predicate that the (...6, 4" Rathkopf; The Law of Zoning and , ',f, ,
) the power to enact Planningt 49.07,iLf 49"41):' Local Law 'MA.HONEY, P.J., and MDCURE, J.,
,ecause it contravenes No: 21 does 'ftcIt detract 'from that 888ur- coocur. "
uJtiple Dwelling Law ance, fordtreqUiHa thebuilcfmg inspector f" '00 ,f ,,',j " '
!sidence Law I 302(5) 'to 6eteHnhie'if<the'structuremeets curtent ,KANE, J., conCUrs m part and
ormer I 383. Undeni. buildinlt' ctlnlttttction. la... " Although the &sents in Part in an opinion.
iOt establish local laws ali'\!ady-pronnflgated tertiflClltes attest that Order modified, on the law, without
he State Constitution the!e<mIplex iIiet'bW1ding'code regulations costs, by reversing 80 much thereof 88
-N", defined as laws extant at the tiJIIe they were issued, there denied plaintiff's motion for summary judg-
to all villages (N.Y. is ,no ~tee that they meet today's ment; plaintiff granted sUmmary judgment
)[3][c],' [dIl]; Munici- 8talldal-di,(",,;'~at 4~1!).,,' For example, on its IlI'St cause of aclkIn and defendant's
w I 10[IIii][a][12]). the 'New York1', dtng COde was repealed Local Law No. 21 deelared ultra vires and
sue, however, is not effective JanUtf'1, 1984, and replaced by void; and, as 80 modified, affirmed.
. of these three stat> the cumnt Nw:York Uniform Fire Pre-
.. ventio1'l and Bliildllig Code Act, which be-
,.1 came effectiVe July' 21, 1981 (1..1981, ch. KANE, Justice (concurring in part and
Dwelling Law and 70'1, II 12, 26); Local Law No. 21's re- dissenting in part).
," "" ".":j; .. ......" ' In re8~y dissenting, I note my con-
AW adverted to p1'<>- quireult!itttitat', plaintiff's buildings now
en an individual pur- meet ~nt'~ '.and fbi! regulations currence with the majority's reasoning as
.elling relies on a pre- does not ()ffen\f the Executive Law former to the merits of plaintiff's second and third
:ate of occupancy, no f 883 guaran~. causes of iu:tion.. In my view, ho~er, the
be advanced that the [5] 'TII~~1i, liiIiever, m~~ to,the com- ordinance is a legitimate exercise of the
,rm to the provisions plaint'i$t...'. ifie,fIr8t c!a1l84! of ~n is vnlage~s police power and I would, there-
.pters of those laws con~: tcW'& JiWfttiff tlghtly Sttggests, fore, aff'1I'ItI Supreme Court's dismissal of
,f the certificate (He, the'V_ dO\fi . ilcJt \1ave the legislative plaintiff's first and second causes of action.
W ~ 301[5]; Multiple power to regukte the' co1'IVetIsion ill prdjJer- "To be sure, a Village ordinance enaeted
:[5] ). These sections ty'iJwnfnbipltwhiCh does' IiOt inVOlve an under the police power must bear a reason-
, the dwelling was not .Jteratiottlit the'~s USe Of the proper- able connectioll to the' public health, com-
hose laws, when the iy. M~.ha'fe no iJlherent capaci- fort, safety and welfare" (D'Angelo v.
d; Local Law No. 21- ty to nWidafil{the -.mer in which proper- Cole, 67 N.Y.2d 65, 69, 499 N.Y.S.2d 900,
contrary. ty may bt!;ownedot. held (FGL & L Prop. 490 N.E.2d 819; He, Village Law
local law contradict eo..p.!'.'Oitg,'6/ Rg., 66 N.Y.2dlll, 113, I 4-412[1]). I IIgree with the majority
495N.Y.s.2dal21,'485 N;E.2d 986). ' They that, IIbsent a deleption of power, a vil-
I 883. That statute must lU!c\uiriflUch'jjower from the State. lage mlly not mandate the manner in which
',Absent 1IUch',delegation of power, a mu- property may be owned (He, FGL If L
-icate of occupancy "nlcipalit1,~etllpIOy a zoning ordinance Prop. Corp. v. City 0/ R1fJJ, 66 N.Y.2d 111,
tit set 88ide or vacat- ,to exclllde01'dilleriminate against the con- 113,495 N,Y.S.2d 321, 485 N.E.2d 986).
review or a court of dominium,flll'ln,of,ownership,(NortII F01'k However, the clear legislative target of the
ion, be and reinain ~otfJ.1 \l,;1.,~g,93A.D.2d 883, 461 N.Y. ordinaIi-c.!' at issue hertJ is the condition of
ve upon all state and '.S.2d41'J.':'A8'~,'Law No~ 21 encumbers the property at the time of conversion, not
as to all matters sPonsor..: 'ettortl:to convert apartments, its form of ownership. The eneumbrance
d no order, direction which the,~ '~ning orIHnance classi- directed at conversion is, in my view, inci-
variance therewith '.11* ~,'" diItUpeDc:y 1..eeI fa plaintiff ~Uve Law proVision .... repealed effective
,ssued by any other In ,1986, .\987.anI! 1988 .... IrreIevonl for the In 1984 (1..1981. cb. 7!17. H 12. 20).
gency (emphasis sup' ......- of ihIa, _, for the applicable
..e':.' ,
.!~
2605 Deephole Drive
Mattituck, New York
March 29, 1991
11952
Southold Town Board of Appeals
Town Hall
Main Road
Southold, New York 11971
SPECIAL EXCEPTION PER~T APPLICATION
~CHAEL CHOLOWSKY/LORINDA C. CASOLA
1000 55 - 1 9 AT HORTON~S LANE, SOUTHOLD,
NEW YORK
Gentlemen:
Please be advised that the undersigned, upon obtazning a
special exception and site plan approval for the above-
referenced project, will zncorporate as a not-for-profit
corporation purs~uant to the laws of the State of New York.
The proposed enterprise will not be operated for profit,
pursuant to §100-3117) of the Southo!d Town Code.
To require the incorporation of the not-for-profit corp-
oration prior to obtaining ail necessary approvals would
place a great hardship upon the applicant.
Very truly yours,
MC/lt
§ 97-~:3
WETLANDS § 97-~B
TOWN -- The Town of Southold..
TRUSTEES The Board o! Trustees of the Town of
Southold. [Added 6-5-84 by:E:L.:No. 6-19841
WETLANDS [Amended 8-26~76,~_by L.L.~o. 2-1976; 3-26-
85 by L.I~. No. 6-1985]:
A.- TIDAL WETLANDS:
All l~ud~ generally covered or intermittently cov-
ered w~th. or which bo~der on, tidal waters, or lands
1Ting beneattf fi~dal wamrs, which at mean low tide
are co{ered bF'tidal w~a~ers to a maximu~n depfl~ of
~ve. ~)~!fe~t; ~m¢Iudin~,'but not hm~tedlte banks,
~ogs,'~sa~tt~:m~r~ swamps: meadows~ fla{s or other
I~w l~:~ng l~{n~s subjec~ tidal action
(2) All trunks bgg~, meadows, fiats and tidal marsh
~ubject ~ ~u~i(tes a~d upon Which grows or may
grow some ~hy of the follo~vin~ salt hay, black
grass, s~lt~o~fi4,~ sea l~ve~der, tall cordgrass, high
bush, cal~aiI~, gr6un~sel~ marshmallow and low
march cc~gr~;~ncl/~r
(3) A, ........ :,,.( ...... ~... m,. ::c~ n'~ m a ~idal wetland as
de;'imx! !n S::!~c.c::an :\~2~ and .ying within seven-
[.'.'-:!v,, ,,75l fi,~! ]::nd'~:'a:'~! ,~ :?~e quos~ landward
e(il:(! o.: such a '.!~.::![
B. FR E S HV~A~ER~{~/E TL~ D S:
(1) "Freshwamr wetiands~' as defined in Article 24 Ti
tlc 1,. § ~4~0~7, Subd{vfsmns 1(al to l~d) inclusive,
of ~h~Eh~9/~tflen~aI~o/~servation Law c~{ the State
of New Y~rlc and
(2) All land irarfiediately adjacent to a "freshwater
land," as ti~fined in Subsection B(1) and' lying with-
in seventy-fi[ye (75) feet landward of t}~e m0s[ land-
ward edge of a "freshwater wetlan&"
9705 2-25-85
The N.Y.$~ Environmental Qualitlz Review A~t requires submission
(b) If any que~ti~n~ has h~e,n, answered, y~ the' pr~jec~ m~y be sig--
inca large physica$ change
t~a~ land~ Yes X NO
W~ ~e b~;~,major cha~g~ =o any unique or
groundw~bar quality? Yes X No
Will project have a major effect on visual char-
systems? . , Yes ___NO
15. IS ther~ public controversy Concerning the . . ~