HomeMy WebLinkAbout1824
TOWN OF SOUTHOLD, NEW YOKK
ACTION OF THE ZONING BOARD OF APPEALS
DATE ..A..~ .~....e_ _ ..3...0., 1973
Decision: Oct. 11, 1973
Appeal No. 1824 Dated August 10, 1973
ACTION OF THE ZONING BOARD OF APPEALS OF THE TOWN OF SOUTHOLD
To
Brian Lynch
R.D.1, Box 21E
Nattituck~ New York
Appellant
Public Hearing:
at a meeting of the Zoning Board of Appeals on August 30, 1973
was considered and the action indicated below was tak. en on your
( ) Request for variance due to lack of access to property
( ) Request for a special exception under the Zoning Ordinance
( ~ Request for a variance to the Zoning .Ordinanre~
( )
Decision:
Oct.ll, 1973ha a~eal
1. SPECIAL EXCEPTION. By resointion of the Board B was determined th~ a ~eei~ exception ( ) be
~a~ed ( ) be ~uled p~suant to Artic~ .................... S~tion .................... Sub~stion ......... [ .......... para.apb
.................... ~ the ~nin~ O~inance and the decision of the Building Inspecinr ( ) be reversed ( ) be
~irmed became 9~50 P.M. (E.S.T.), upon application of Brian Lynch,
R.D.1, Box 21E, Mattituck, for a variance in accordance with the
Zoning Ordinance, Article III, Section 300 C, & Article IX,
Sectio~ 9C0-~6 for permissio~ to operate Aireal Spraying service
in "~" District. Location of property: N/s of Oregon Road,
Mattituck, bounded north by L. I. Sound; east by Rose H. Baer;
south by Oregon Road; west by Grafic Arts Management Corp.
Fee paid $1~.00.
2. VARIANCE. By resolution of the Board it was determined that
(a) Strict application of the Ordinance (would) (would not) produce practical difficulties
hardship because
SEE REVERSE
(b) The hardship created (is) (is not) unique and (would) (would not) be shared by all properties
alike in the immediate vicinity of this property and in the same use district because
SEE REVERSE
(c) The variance (does) (does not) observe the spirit of the Ordinance and (woUld)
change the character of the district because
(woUld not)
SEE REVERSE
and therefore, it was further determined that the requested variance ( ) be ~ranted ( ) be denied and
that the previous decisions of the Building Inspector ( ) be confirmed ( ) ha reversed.
APPROVED
Marjorie McDermott, Secretary
After investigation and inspection the Board finds that applicant
requests permission to operate Aireal Spraying service in "A" District.
The Board recognizes the need for agricultural spraying a~usting
by air, and also recognizes that this is a customary and essential
feature of agriculture. However, the findings of the Board are
that the A~peals Board wo~ld be usurping the legislative functions
of the To~n by permitting this use. Any change should be made by
legislative authority. In reaching this decision, the Board
consulted with the Suffolk County Planning Commission, the Southold
Town Board, made investigations of other Ordinances in Suffolk
County, and the decision of Ward v. Gray.
The Board finds that strict application of the Ordinance would
not produce practical difficulties or unnecessary hardship; the
hardship created is not unique and would be shared hy all properties
alike in the immediate vicinity of this property and in the same
use district; and the variance will change the character of the
neighborhood, and will not observe ~h~ spirit, of the Ordinance.
THEREFORE IT WAS RESOLVED, Brian Lynch, Mattituck, New ~ork, be DENIED
permission to operate Aireal Spraying Service in "~" District, north
side of Oregon Road, Mattituck, as. applied for, and further RESOLVES
that all spraying and dusting activities shall cease by.November 15,
1973.
Vote of the Board:
Grigonis, Doyen.
Ayes:- Messrs: Gillispie, Bergen, Hulse,
LI!~GAL ?~ 0TIC~
Notice of Hearings
Pursuant to~ Section 267 of the Town Law and the provisions
of the Amended Building Zone Ordinance of the Town of Southold,
Suffolk County, New York, p~olic hearings will be held by the
Zoning Board of A~peals of the Town of Southold, at the Towm
Office, Main Road, SouthOld, New York, on August 30~ 1973~ on the
following appeals:
7:~ P.M.. (E.D.S.T.)~ upon application of M.S.T. Construction
Corp.~ Middle Country Road, Mattituck, for a variance in
accordance with the Zoning Ordinance~ Article III, Section 303
and 30~ for permission to reduce average setback on corner lot.
Location of property: Lot #2, Saltaire Estates, Mattituck.
7:~ P.M. (E.D.S.T.), upon application of Kenneth Watson~
Midland Place, East Marion, NeW York, for a variance in accordance
with the Zoning Ordinance, Article III~ Section 30~ for permission
to erect part of 6' fence in front yard area (lot has 3 (three)
front yards). Location of property: Lot [~+8, Marion Manor~
East Marion.
8:10 P.M. (E.D.S.T.), upon application of Edward Cielatka,
S~numit Road~ Southold~ New York~ for a variance in accordance
with the Zoning Ordinance~ Article IIi~ Section 300 C-2 &
Section 302 for permission to have swimming pool in side yard.
Location of property: Lots # 27 & 28~ Bayside Terrace, Southold.
Legal Notice
Page 2
8:2~ P.M. (E.D.S.T.)~ upon application of William Grefe~
New Suffolk Avenue~ New Suffolk~ New York~~ for a special exception
in accordance with the Zoning 0rdinance, Article IX~ Section 900
as refers to Article VIII~ Section 800 B-4~3 and Article IX
Section 900-8 for permission to operate building contractor yard
and to manufacture and store concrete products. Location of
property: New Suffolk Avenue~ New Suffolk~ bounded north by L.B.
Glover, Jr.: east by Cox Lanes south by B. Harrisl west by L.
Glover~ Jr.
8:40 P.M. ( E.D.S.T.)~ upon application of~Arthur J. Bujnowski
6 Surryhill Place~ Huntington~ New York~ for a variance in
accordance with the Zoning Ordinance~ Article III~ Section 300 C~
& Article IX~ Section 900-46~ for permission to opperate airfield
and airplane storage in "A" Zone District. Location of property:
S/S Main Road, Peconic bounded north by Main Road~ east by P.
Wenzel; south by Leslie Road; west by A. Krupski.
9:00 P.M. (E.D.S.T.)~ upon application of Vito Randazzo~
5~+ James Street~ Patchogue~ New York~ for a variance in
accordance with the Zoning Ordinance~ Article III~ Section 301
~nd the Bulk Schedule for permission to divide lots with less than
required area . Location of property: Lots ~3~, and ~ Cedar Beach
Park~ Southold.
9:10 P.M. (E.D.S.T.)~ upon application of Mattituck~Iniet
Marina~ Mill Road~ Mattituck~ New York~ for a special exception
in accordance with the Zoning 0rdinance~ Article VI~ Section 600 C
ii~ & Article XVt Section 1501 for permission to maintain roof
sign on building. Location of property$ W/S of Mattituck Inlet~
~attituck~ bounded north by J.R.Holmes; east by Mattituck Iniet~
south by Lot Pr Shore Acres; west by J. Leo Grande and M.Chudiak.
~l Notice
Page ~
9:2~ P.M. (E.D.S.T.)~ upon application of Henry Walsh~
Private Road~ Fishers Island~ for a variance in accordance with
the Zoning Ordinanee~ Article III~ Section 301 and the Bulk
Schedule for permission to divide property with less than re-
quired area. Location of property: R.0.¥. off S/S Ave. B~ Fishers
Island bounded north by Lands of Henry Zabohonski & Ahother~
east by Jane DuPont; south by Land of Henry Zabohonski & Another~
west by G. Repanti & Others.
9:40 P.M. (E.D.S.T.)~ upon application of Guido Ciacia,
Main Road, Greenport, New York~ for a variance in accordance with
the Zoning Ordinance, Article III~ Section 301 and the Bulk
Schedule as applies to Article IV, Section 600A for permission
to set off single lot with less than required area. Location
of property: Lot ~ 176, Amended map~of Peconic Bay Estates,
Greenport, New York.
9:~0 P.M.E.D.S.T.)~ upon application of Brian Lynch~
R.D.l~ Box 21E, Mattituck~ for a variance in accordance with
the Zoning 0rdinance~ Article III~ Section 300 C~ &~Article IX~
Section 900-46 for permission to operate Aireal Spraying service
in "A" District. Location of property: N/S of Oregon Road~
Mattituck, bounded north by L.I. Sounds east by Rose H. Baer;
south by Oregon Road; west ~afic Arts Management Corp.
A~ PERSON DESIRING TO BE HEARD ON THE ABOVE APPLICATIONS
SHOULD APPEAR AT THE TIME Ah~ PLACE ABOVE SPECIFIED.
Dated: August 17, 1973
BY ORDER OF THE SOUTHOLD TOWN
BGRD OF APPEALS
PLEASE PUBLISH ONCE~ Augus~ 2~ 1973~ Ah~ FORWARD TEN (10)
AFFIDAVITS OF PUBLICATION TO THE SOUTHOLD TOWN BOARD OF APPEALS~
MAIN ROAD~ SOUTHOLD~ NEW YORK
Copies mailed to the following on August 17~ 197~:
The Long Island Traveler-Mattituck ~atchman
The Suffolk Weekly Times
M.S.T. Construction Corp.
Kenneth Watson
Edward Cielatka
William Grefe
Arthur J. Bujnowski
Vito Randazzo
Mattituck Inlet Marina
Henry Walsh
Guido Ciacia
Brian Lynch
N OTl~ OF
Pursuant to ~-~lon .26/of the
Town L~w and the provisions of
the Amended Building Zone Or-
dinance of the Town of 8outhold,
Suffolk County, New York, pub-
llc hearings will be held by the
Zoning Board of Appeals of the
Town of 8outhold, at the Town
Office, Main Road, Southold, New
York, on August 30, 19'/3, on file
following appeal~:
~:45 P. M. (EDIT), upon ap-.:
plica~on o~. M. ,S. T. Corlst~uc-
tion Corp., Middle Country Road,
M~ttltuck, for a variance in ac--
c~tanee- wifil tl~ zenh~ Ordt~
ns~lce, Article HI, Section 303
and ~04 for permi~ion to reduce
average setback on comer lot.
Loeation of property: Lot No. 2,
Salt~ire Eat~tes, Mattituck.
~:~ P, M. ~), upon
plicat~m of Kenneth Watson,
Midland pince, Eag Marion, New
York, for a variance in aceord-
ance with the Zoning Ordinance,
Arsiele III, Seciien 306 for l~r-
mission to orec~ I~rt of 6' fence
in front yard area (lo~ has 3
(t~ree) front yards.) Location of
property: Lot HO. 48, Marion
Manor, East Marlc~.
8:10 P. M. (EDST), upon ap-
plieation of Edward Cielatka,
~ummit Road, 8outhold, New
York, for a variance in accord-
ance with the Zoning Ordinance,
Article lll, ~ec~ten 300 c-g
Section 302 for perml~ioa to
l~ve swhnming I~Ol in side yard.
Location of property: Lot~ No.
~I & 28, Bayside Terrace, South-
old.
8:25 P. M. (EDST), upon ap-
plication of William Grefe, New
Suffolk Avenue, New Suffolk·
New York, for a special ?Xeel~
tion in accordance with the Zen-
9:00 P. M. (EDST), upon ap-
Plication of vito Randazso, 54
~araes Street, Pateho~ue, New
York, Iora variance in accord-
ance with the Zoning Ordinance,
Article III, Section ~01 and the
Bulk Sehedule for permhsion to
divide lots with less than re-
qoired a~ea. Location of prop-
erty: Lots No. 3, 4, and 5, Ceda:
Beach Park, Southold.
9:10 A. M. (El)ST), upon ap-
plication of Mattituck Inlet
Marina~ Mill Road, Mattituck,
New York, for a special exception
in accordance with the Zoning
Ordinance, ArriVe VI, Section
600 C ii. & Article XV, Section
1501 for permission to maintain
· OF SUFFOLK ~, ss:
; NEW YORK j
C. Whitney Booth, Jr., being duly sworn, says
is the Editor, of THE LONG ISLAND
iR - MATrlTUCK WATCHMAN, a public news-
nted at Southold, in Suffolk County; and that
; of which the annexed is a printed copy, has been
roof si~n on building, [~:x:ation I in said Long Island Traveler-Mattituck Wotch-
of property; W/S of Mattituck -
Inlet,
Mattituck,
bounded
north
by J. R. Holmes; east by Matti- 'eJy, commencing on the ................ ~. .~. 'f...~...
tuck Inlet; south by Lot P.
Shore Acres; west by J. Leo ......
Grande and M. Chudiak.
9:25 P. M. (EDST), upon ap- . ............
rate Road, Fishers I~land, for a
variance in accordance with the
Zoning Ordinance, Article IlL ' ....................
Section 30i and the Bulk Sched-
ule for permission to divide
Sworn to before me this ........ iD~,..?.~.. ..... day of
........ ........
property with less than required
area. Location of property;
R.O.W. off S/S Ave. B, Fishers
Island hounded north by Lends
of Henry Zabohonski & Another:
east by Jane DuPont; south by
Land of Henry Zabohonski &
Another; we.st by O. Repanti &
Others.
9:40 P. M. (EDST), upon ap-
plicatien of Guido Ctacia, Main
Road, Greenport, New York, for
a variance in accordance with
the Zoning Ordinance, Article
Till, Section 301 and the Bulk
Schedule as applies to Artlcle IV,
Section 600A for permission to
hOEtE PAYN[
lng Ordinance, Article IX, Sec- set off single lot with less than
tion 900 as ~fers to Article required area. Location of prop-
IrllI, Section 800 B-4,8 and Ar-
ticle IX Section 900-8 for per-
mission to operate building con-
tractor yard and to manufacture
and store concrete producis.
cation of property: New Cuffolk
Avenue, New Suffolk, bounded
north by L. B. Glover, Jr.: east
by Cox 'Lane; south by B. Har-
ris; west by L. Glover, Jr.
8:40 P. M. (EDST), upon ap-
plication of Arthur J, BuJnowski,
6 Surryhill Place, Huntington,
New York, for a variance in ac-
cerdance with the Zoning Ordi-
nance, Article 111, Section 3001
C, ~ Article IX, Section 900-46,
for permission to operate air-
Beld and airplane storage in
"A' Zone District. Location of
proper~y: S/S Main Road, Pe-
conic bounded north by Main
Road; east by P. Wenzel; south
by Leslie Ro~d; west hy A. Krup-
ski.
erty: LOt No. 176, Amended map
of Peconic Bay Estates, (~reen-
port, New York. ~
9:50 P. M. (EDST), upon ap-
plication of Brian Lynch, R.D. 1,
Box 21E, Mattttuck, for a vari-
ance in accordance with the Zon-
ln~ Ordinance, Article IH, Sec-
tion 300 C, & A~cicle IX, Sec-
tion ~00-46 for permission to
operate Aerial Spraying service
in "A" Dlstri~. Location of
property: N/S of Ore~on Road.
Mattituck, bounded north by L.
I. SOund; east ~y R~e H. Bast:
south by Oregon Road; west
Grafic Arts Management Corp.
Any person desiring to be heard
on the above applications should
appear at the time a~d place~
above specified.
Dated: Au~tst 17, 19~3
BY ORDER OF THE
~K) u 'x'l~OI~D TOW~
BOARD OP APPEAI~
1T--8-~J
NOTICE OF HEARINGS ~
Pursuant to Section 267 of the
Town LaW and the pFovisinus of
the Amended-Building Zone
Ordinance of the Town of
Southold, Suffolk County, New
York, public hearings will be held
by the Zoning Board of Appeals of
the Town of Southold, at the Town
Office, Main Road, Seuthold,
New York, on August 30, 1973, on
the following appeals:
7:45 P.M. (E.D.S.T.), upon
application of M.S.T. Con-
struction Corp., Middle Country
Road, Mattituck, for a variance
in accordance with the Zoning
Ordinance, Article III, Section
303 and 304 for permission to
reduce average setback on
corner lot. Location of property:
Lot No. 2, Saltaire Estates,
Mattituck.
7:55 P.M. (E.D.S.T.), upon
application of Kenneth Watson,
Midland Place, East Marion,
New York, for a variance in
accordance with the Zoning
Ordinance, Article III, Section
305 for permission to erect part of
6' fence in front yard area (lot
has 3 (three) front yards).
Location of property: Lot No. 48,
Marion Manor, East Marion.
6:10 P.M. (E.D.S.T.), upon
application of Edward Cielatka,
Summit Road, Southold, New
York, for a variance in ac-
cordance with the Zoning Or-
dinance, Article IH, Section 300
C-2 & Section 302 for permission
to have swimming pool in side
yard. Location of property: Lots
No. 27 & 28, Bayside Terrace,
Southold.
6:25 P.M. (E.D.S.T.), upon
application of William Grefe,
New Suffolk Avenue, New Suf-
folk, New York, for a special
exception in accordance with the
Zoning Ordinance, Article IX,
Section 900 as refers to Article
VIII, Section 800 B4, 3 and Ar-
ticles IX Section 900-6 for per-
mission to operate building
contractor yard and to
manufacture and store concrete
products. Location of property:
New Suffolk Avenue, New Suf-
folk, bounded north by L.B.
Glover, Jr.: east by Cox Lane,
south by' B. Harris; west by L.
Glover, Jr.
6:40 P.M. (E.D.S.T.), upon
application of Arthur J.
Bujanwski, 6 Surryhill Place,
Huntington, New York, for a
variance in accordance with the
Zoning Ordinance, Article III,
Section 300 C, & Article IX,
Section 900-46, for permission to
operate airfield and airplane
storage in "A" Zone District.
Location of property: S-S Main
Road, Peconic bounded north by
Main Road; east by P. Wenzel;
south by Leslie Road; west by A.
Krupski.
9:00 P.M. (E.D.S.T.), upon
application of Vito Randazzo, 54
James Street, Patchogue, New
York, for a variance in ac-
cordance with the Zoning Or-
dinance, Article III, Section 301
and the Bulk Schedule for per-
mission to divide tots with less
than required area. Location of
property: Lots No. 3, 4, and 5,
Cedar Beach Park, Southold.
9:10 P.M. (E.D.S.T.), upon
application of Mattituck Inlet
Marina, Mill Road, Mattituck,
New York, for a special exception
in accordance with the Zoning
Ordinance, Article VI, Section 600
C ii, & Article XV, Section 1501 for
permission to maintain roof sign
on building. Location of
property: W-S of Mattituck Inlet,
Mattituck, bounded north by J.R.
Holmes; east by Mattltuck Inlet;
south by Lot P, Shore Acres; west
by J. Leo Grande and M.
Chudiak.
9:25 P.M. (E.D.S.T.), upon
application of Henry Walsh,
Private Road, Fishers Island, for
a variance in accordance with the
Zoning Ordinance, Article llI,
Section 301 and the Bulk Schedule
for permission to divide property
with less than required area.
Location of property: R.O.W. off
S-S Ave. B, Fishers Ialand
bounded north by Lands of Henry
Zabohonski & Another; east by
Jane DuPant; south by Land of
Henry Zabohanski & Another;
west by G. Repanti & Others.
9:40 P.M. (E.D.S.T.), upon
application of Guido Ciacia, Main
Road, Greenport, New York, for
a variance in accordance with the
Zoning Ordinance, Article III,
Section 301 and the Bulk Schedule
as applies to Article IV, Section
600A for permission to set off
single lot with less than required
area. Location of property: Lot
No. 176, Amended map of Peconic
Bay Estates, Greenport, New
York. ~--
9:50 P.M. (E.D.S.T.), upe~
application of Brian Lynch, R.D.
1, Box 21E, Mattitank, for a
variance in accordance with the
Zoning Ordinance, Article III,
Section 300 C, & Article IX,
Section 900-46 for permission to
operate Aireal Spraying service
in "A" District. Location of
property: N-S of Oregon Road,
Mattituck, bounded north by L.I.
Sound; east by Rose H. Bear;
south by Oregon Road; west
Grafic Arts Management Corp.
ANY PERSON DESIRING TO
BE HEARD ON THE ABOVE
APPLICATIONS SHOULD
APPEAR AT THE TIME AND
PLACE ABOVE SPECIFIED.
Dated: August 17, 1973
BY ORDER OF THE
SOUTHOLD TOWN
¥ OF SUFFOLK, ]
OF NEW YORK. ~ ss:
.art .C..Dorma~. ................. being duly Sworn,
~t .... he. is Printer and Publisher of the SUFFOLK
.Y TIMES, a newspaper published ~xt Greenport. in said
and ~hat the notice, of which the annexed is a printed
us been published in the said Suffolk Weekly Times
each week, ~or .... .o.n? .................... weeks
.ively commencing on the .... TwenL'Z.-.~,~.ird .........
· ·. A~.~q~--~-%.)~. :'~ -19..
_ ,~:- ..... ,?;~ ,:~,~. ~: .~. ......... ': .: ..........
to belore me this ..... >. ......
JOSEPH E. TOWNSEND, JR. /~
· ~)~'A~,'~ ~tltJLt 7. ' ~ '!~ 'o~ 1~'eW' Ydrk ........
Noven~ber 9, 1973
Richard F. Lark, ~
Wickham & Lark, P.C.
Mattituck, New York 11952
Dear Mr. Lark:
Re: Brian Lynch - Appeal No. 1824
The decision with reference to Brian Lyncl~, Appeal
No. lo°24, was :m~de at a ~:~eeting of tl~e Soutl~old
Board of Appe~s on October 11, 1973.
Thank you very much for your letter of October 12tI~.
It is quite possible that this letter will be useful in
whatever filing disposition is made of your problen~.
Very truly yours,
Robert ~,~.
Chair~uan
Gillispie, Jr.
WICKHaM & laRK~ P.C.
October 12, 1973
Robert Gillispie, Chairman
Southold Town Zoning Board of Appeals
Main Road
Southold, New York 11971
RE: Brian Lynch - Appeal No. 1824
· Dear Chairman Gillispie:
Even though the Board of Appeals had apparently made up
its mind to deny Mr. Lynch's application even before it held a
hearing on August 30, 1973, Mr. Lynch and I met with the Town
Attorney and members of the Town Board on October 9, 1973 to
discuss various solutions to this problem. I was sorry that
you were unable to attend this meeting.
Since Mr. Lynch's application for a permit to operate a
landing strip on the Berkoski farm is in a sparsely populated
area surrounded by working farms, it appears that a reasonable
solution to the problem would be for the Board to grant a condi-
tional variance in order to prevent any undesirable precedent in
the Town of Southold. Mr. Lynch's application is distinguishable
from others that the Board might presently have pending or receive
in the future in that his entire operation of aerial spraying is
in support of farming. Further, he has a real hardship in that he
is not allowed to use Mattituck Air Base even though it is a Town
leased facility for the benefit of the public.
It is my opinion that the Board of Appeals has the power to
limit variances "so that the spirit of the ordinance shall be
observed, public safety and welfare secured, and substantial
Justice done."
So that the record may be clear, Mr. Lynch would agree to
the following conditions which I feel are reasonable and relate
to what is intended to be accomplished in this matter:
1) That the airstrip be used by Mr. Lynch solely for
the purpose of aerial spraying of crops.
2) That the variance be limited to the period from
May 1st to October 30th of each year for five years.
Chairman Robert Gillispie
RE: Brian Lynch
Appeal No. 1824
-2- October
12, 1973
If during this period of time any residential homes
are constructed within 300 feet of the airstrip,
then the variance shall terminate. This would
allow Mr. Lynch to operate from this sparsely popu-
lated area which is predominantly agricultural and
when the use changes to residential, the variance
would cease.
4) That no repairs to the airplane be allowed other
than minor ones for daily operation.
If the above conditions are imposed, it is my belief that it
would prevent any precedent for establishing additional airfields
in the Township.
If you have any questions regarding the above, I would be
happy to meet with the Board of Appeals at your convenience.
Very truly yours,
Richard F .~ark
RFL/mlf
cc: Robert W. Tasker, Esq.
74 MIS~ELL ~ANEOUS REPORTS, 2d SERIES
Accordingly, the judgment to be entered shall be computed
as follows:
A. The amount due from the defendant is thc sum of $2,441.80
plus 'the applicable'sales tax, to wit the following:
Pursuant to the New York State sales and use tax law, the
sales tax until April 1, 1969 was at the rate of 5~. From April
1, 1969 to June 1, 1971, the rate was 6~ and thereafter the rate
was 7~. Based on those rates the sales tax on the deposit of
$2,500 paid by the defendant to the plaintiff in 1968 is $125 and
the sales tax on the sum of $2,441.30 is $170.89.
Accordingly, the amount due from the defendant to the plaint.
tiff is the sum of $2,441.30 plus $125 plus $170.89 or a total of
$2,737.19, plus interest on ~2,441.30 from April 23, 1968.
B. The amount due from the plaintiff is the sum of $1,116.95
plus $86.20 plus $408.16 or a total of $1,611.31.
Therefore judgment maybe entered in favor of the plaintiff
and against the defendant 'For the sum of $1,125.88 together
with interest on the sum of $2,441.30 from April 23, 1968. In the
circumstances of this case, neither party is granted costs or
disbursements.
' Execution shall ])e stayed for 30 days.
The lien having'Been found invalid, the bond herein may be
discharged.
E~uc S. OP~Y et al., Petitioners, ~. W. TOM WA~D, as Mayor of' the
Incorporated V~ag~ of Va~ey Stream, et al, Respondents.
Supreme CouP, Special Te~ Nassau Co~cy~ May 14, 1973.
· M~t~pal corporatio~zo~rooftop h~ipad for proper~ o~'s
heBcopters ~ no~ "~cesso~ use "~Villa~e Board of Tru~ees may amend
zo~n~ relation to aBow helipads ~ ~c~o~ use or as speci~
Oomm~oner of T~po~a~on (~neral ~m~s ~w, ~ ·
~e General B~s~s Law (arr. 14, ~ 249) forbid, because o~ public ~e~
~d public policy, the. eons~etion or operation of a p~vat~y o~
helipad for ~e lan~g and t~g off of a helicopter, unl~s there ~ fl~t a
he~g ~d de~m~ation by the State Commisssxoner of ~o~ion
~en an ~p~s zomg ~endment by the Vflla~ Boa~ of T~t~ or o~
local govem~g body. A helipad ~ not an "aceesso~ use ** wi~ a ~n~g
~olufion which do~ not expresdy so state; nor ~ it a "e~" use,
aven ~ough, iu ~ ~e, ~e corporate owner of ~e ~alty has ma& or
~ ~ made, for i~ ~eeufives, about 17 such flights ~ its helieop~r per ye~
-tot ~e past 4 yea~'with ~e app~val o~ the Federal Aviation Adminis~aflon
and ~ ~e a~ui~c~ee of ~e Village Boa~ 0f T~tees. A bu~d~g pe~it,
now ~t~ by the ~e Boar~ for th~ bm~s corporation's h~pa~
~t a ~n~g ~en~ent, and ~out any ~ ~g and
//' · CP. AY v. WA_~D [?4 Misc 2d 50] 51
4Er/o $. (/ray, in person, for petitioners. Eugene J.
', Village AllergiSt, for Village of Valley Stream, respondent.
:i~ ~Trub~, ~llcoc~s, Edelma~ ~ K~app for lqathan Serota and
others, respondents.
Jos~ A. Svozzz, J. Thi~ article 78 proceeding, commenced
'by a property owner and resident of the Village. of Valley
Stream and the Valley Stream Council of Parent Teachers Asso-.
eiations,.seeks a judgment annulling the ?.uilding permit granted
" by. the Village Board of Trustees Of the Village of Valley Stream
on November 17, 1972 to the owners of the building leased by
· Alexander's Department Store for the cons~ruetion of a rooftop
helipad for the takeoff ~nd landing of a helicopter owned by
Alexander'a and Used solely by their executives.
· he proposed structure is intended to replace an existing
rooftop pad which has been in use since December, 1968, follow-
lng approval of airspace by the Federal Aviation Administration.
· Although no express authorization for tMs use was ever given
by the Village Board of Trustees, th~ board has known of the
Continuous use of this rooftop pad since 1968. ,This pad has
been used to ferry Alexander's executives by he~ieopter from
one store to another throughout the metropolitan area, and the
number of flights from tMs location h~ve not exceeded 66 S~nce
December, 1968.
Petitioners contend that, because of the fact that there are
numerous houses and other buildings in the immediate vicinity
of the subject, premises, the landing and taking off of helicopters
on and from the subject premises constitute a danger to the
numerous persons in the vicinity and the homes in the area, .a~
well as the travelers on Sunrise Highway.
The building permit which the petitioners seek to invalidate
was approved by the Board of Trustees on the basis that the
proposed helipad was an accessory use to the retail store.
~ Accessory use" is defined .as follows in the Valley Sfream
zoning regulations (§ 99-3--Use, Accessory):
~' A. A ~s~ conducted on the zame ~,o~ as the principal use to
whieh itisrelated ° * ° and
~ B. A ~s~ which is clearly incidental to and is customarily
: found in connection with such principal use."
~ne zoning regulations do not include any reference to hell-
pads in the specified uses permitted in the C-2 District, general
commercial, in which Alexander's is located, erin the specifl0d
: us.e.e permitted anyw.h, ere. within the villag.e. However, per-
m~tted uses m each dmtrmt are deemed, to ~nchide "use_s and
bnildi~gs therefor that are eustomarily accessory to and
52 74 MISCELLANEOUS REPORT~, 2d SERIES
dental to such permitted uses and located on the same lot
therewith." (Zoning'Regulatinns, § 99-~3A [1] ).
.~ae question presented is one of interpretation of the ordi~
nance, i.e., does the principal use o~ a retail establishment such
as Alexander's, in a general commercial district, as a matter
bf custom carry with it a helipad as an incidental use, so that
as a matter of law it can be deemed that the legislative intent
was to include it as a permitted accessory use. In considering
this legislative intent, it becomes necessary to determine whether
the use was customary as of the time the regulations were
adopted, or whether such use has become customary since
enactment. (See PeoPle v. Nicosia, 42 Miec 2d 300; 1 Rathkopf,
Law of Zoning and Planning, p. 23-24.)
~ne two sections of the Valley Stream regulations dealing
~rith accessory uses are part of the 1952' enactment. At that
point in time the utilization- of helicopters as a means of trans-
portation had not advanced to such a stage that anyone can
now reasonably claim, in ~etrospeet, that the use of helicopters
and facilities for their landing and takeoff was "clearly inei-
dental to and customarily found in connection with" even the
largest retail or commercial establishment, or the private resi-
deuses of those who could afford this specialized means of trans-
portation. Clearly, then, it cannot be held that a helipad was
encompassed within the definition of an accessory use at the
time that the regulations were adopted. The court must there-
fore consider whether in the intervening years since 1952 the'
use has become one which is clearly incidental to and customarily
found in connection with a retail operation such as Alexander's.
A search of the New York authorities fails to disclose any
case which had dealt directly, with the question of whether a
helipad is or is .not a permitt, ed accessory use as that phrase is
usually defined m zoning ordinances. The only reference to the
operation of a helicopter as an accessory use in this, jurisdiction
is found in Rathkopf (Law of ~Zoning and Planning, supp. to
vol. 1, p. 23--32) where it is suggested that an inference can he
drawn from the language of the Court of Appeals in
l~d. v. l~corporated V~l. of Port 'Washi~gto~ North (27 N .Y
2d 537, 539) that the operation of a helicopter is a valid and
accessory use to the operation of a manufacturing plant in an
industrial district. Inasmuch as that case dealt with a zoning
ordinance which prohibited heliport, s, and the Court of Appeals
decided the matter primarily on the bas~s of the (]~eneral Busi-
ness Law, the inference referred to by Rathkopf, even if it can
validly be made, is not controlling here.. Therefore, unbridled
GRAY v. WARD [74 Mi.sc 2d 50] 5.~
stare decisis, this court can approach the determination of
issue presented .herein as one of first impression in this
jurisdietlon.
Thc court's a~te~tion has been called t~ a New Jersey case
whleh does deal directly with a landing and takeoff pad as a
accessory use. In Do~blis v. Garde~ State Farms
' Ct., Hudson Count, Nov. 22, 1972), the court deemed
a lan~ng pad a permitted a~esso~ use to a dai~ products
business on a large, tract of land located in an industrial zone.
~e zoning'ordinance involved therein defined an "accessory
use" in substantmlly ~e same terms as the Valley Stream
ordinance. ~ its d~is[on the court did not discuss t~e relation-
ship between the principal use and the landing pad ~h~eh formed
the basis for including it as an aeeesso~ use, but rather relied
ent?ely on the authori~ .of ~a~ New Jersey appellate court
decision ~ Schantz v. Raohlm (101 N. J. Super. 334). - . b/~
The goha~tz case involved the maintenance of an unhghted
tu~ airstrip on a fa~ cf abOUt 135 acres, of which 100 acres
were cultivated and the remainder used for livestock, a house
and outbuildings. The ~rstrip was intended solely for daytime
use and ~ad been licensed for such use by t~e New Jersey Depart-
ment of Aeronautics and stated by tha~ depar~ent to be sa~.
~e New Jersey appellate co~t based xts holding o~ ~e
court opi~0n,
use t° the o~mi~ residential and agric~tural uses; ~he lo, or
cou~ asse~ted as-a basis for its conclusion that t~e installation
of a landing strip for an airplane in connection w~th the de~end-
ant's residence is no less acce~so~ to its primary use than the
installation of a 60-foot tower support for a radio antenna
(elt~g W~i~ht v. Vogt, 7 ~. J. 1). This anal0~ does not per-
sUade this court that a similar o~nclusion is mandated hero.
~e g~haatz opinion concluded (p. 342): "but there is s~cient
use of such aircraft in our ar~ so that it can be said that the
installation of a landing strip for personal use is accesso~ to
the use of property as a residence. It does not change ~e
prlma~ use of the premises from residential."
Apart from the fact that this court is not bound by the holdings
of its neighbor State, there is another significant difference
between the case at bar and the two Hew Jersey eases.
New Jersey cases involved large tracts of land in farming and
industrial areas. The helipad here is proposed iora limited
roof area, ~ the midst of a large shopping center w~eh attrao~
· large crowds of shoppers and adjoins a much-traveled ~ghway.
54 74 MISC~.LI.ANEOUS REPORTS, ~a SERIE~
In a Massachusetts case, Tow~ of Harvard v. Maxa~t (275
N. E. 2d 347), the SuPreme Judicial Court of Massachusetts held
that an airplane strip in an agricultural-residential zone was
not customarily incidental to its principal use. In so finding it
specifically rejected the holding of $cha~tz v. Raehlin (supra), .
and followed instead the Ohio court, which in Samsa v. Hook (13
Ohio App. 2d 94) held that a ,,rivate airport which landowners
contempl~tted constructing o~their property zoned for single
and two-family dwelling was not permissible as a use
,, eUstomarily incident" to the expressly permitted use.
After reaching its conclusion in the Tow~ of Harvard case, thQ~
Massachusetts court stated as follows (p. 352): "Even if we'
take notice of the increasing use of private' aircraft as a means.
of business travel and transportation and for pleasuro pur-
poses, such use has not become so prevalent' in Massachusetts
that it can now be held that it is one ' customarily incidental ' to
the residential use of property. See Building Inspector of Fal-
mouth v. Gingrass, 338 Mass. 274, 276, 154 N. E. 2d 896."
It cannot be disputed that the use of helicopters in this area
has increased in the past 20 years; that helicopters are being used
for the convenie~/t and expeditious movement of Corporate exeeu-
fives; that the efficient supervision and management of business
establishments with divisions 'or branches at widely dispersed
locations may be e.n. hanced b~ the swift shuttling between pla.e?
that is possible w~th helicopters; and that modern merchand~s-
lng methods can be assisted and the movement of merchandise
ean b_e facilitated by this mode of transportation. However,
· after taking notice of the increased use of helicopters in this area,
this court cannot hold as'smatter of law that the use has become
so clearly incidental to and customarily found in connection with
any principal use as to entitle ii to be clothed with the permissive
mantle of an accessory use.
In Tow~ of Harvard v. Maza'~t (supra, p. 351) the court quotes
a discussion which is contained in the case of Lawrence v. Zoning
Bd. of Appeals of Tow~ Of North Bradford (158 Conn. 509,
512-513) of the meaning of the words" customarily incidental ~'
as they relate to accessory uses. This court deems this discus-
sion pertinent and relevant to the issues presented here, and
accordingly likewise sets forth this discussion:
"The word' incidental ' a~ employed in a definition of ' acces-
sory use ' incorporates- two concepts. It means that the uss
mnat not be the primary use of the property but rather one
which m subordinate and nnnor ~n s~gmficance~
' incidental,' when used to define an accessory use, must
GRAY ~. WARD [74 Mlsc 2d 50]
mcorp0rate the concept of reasonable relationship with the pti-
mary use. It is not enough that the use be subordinate; it must
aho be attendant Or concomitant. To ignore this latter aspect
0~' incidental ' would be to permit any use which is not primary,
no matter how unrelated it is to the primary use.
"~.he word ' customarily' is even more .difficult to apply..
Although it is used in this and many .other ordinances.as a
tier of 7ineidental,' it should be apphed as a separate aha axe-
tinct test. Courts' have' often held that the use of the word
, customarily ' places a duty on the hoard or court to determine
whether it is usual to maintain the use in question in eonnee-
tion with the prim ry Use of the land· * * In examining
the use in question, it is not enough to determine that it is inei-
dental in the two meanings of that word as discussed above.
The use must be further scrutinized to d.e. ter.mlne wh. et, h,.er, it.has
commonly, habitually and by long praetxoe be? e.s~a.onsnea as
reasonably associated with the primary use.
"In applying the test of custom, we feel that some of the fac-
tors which should be taken into consideration are the size of the
lot in question, the nature' o~ the primary use., the use mad_e.?
urea, As for the aetuul incidence of similar uses on 0ruer prop-
attics, geographical differences ~should be taken into a%ount,
and the use should be more th~n unique or rare, even though it is
not necessarily found on a majority of similarly situated
propert, ies.~'
Considering the proposed hellpad against this discussion, the
shuttling of corporate executives for which it is intended, does
relatio~shlp to the business of Alexander's in that it
bear some
would provide a convement and t~me-sawng method of trans-
portation between the branches of this chain of stores~ How-
ever, the proposed use does not meet the test of the word ' cus-
tomarily''. Although Alexander's has been utilizing a pad
for this purpose since 1968 and a total of 66 flights have been
~ · ~;- · ..... ar ,-cried averaging less than 17 per year,
the court finds that th~s use hardly measures up to the test of
having "commonly, habitually and by long praetlce been
established as reasonably associated w/th the primary use" of
the. premises as a retail store. This four-year use must also be
evaluated
in the light of the fact that it has not been affirma-
tively authorized by the village officials. Moreover, when eon-
sidered in the light of the size of the lOt in question, the nature
of the primary use, the use made of the adjacent lots and the
uniqueness of the use in this area, the proposed use does not
74 MISCELLANEous RI/pORTS, 2a SERIES
4meet any of the standards of the test of custom as set forth in
tho language quoted above,
This court holds as a matter of law that the proposed pad for
tho occasional flights of Alexander's corporate exesutlves is not
an accessory use within the purview of the ~'alley Stream zoning
regulations, whether that definition is construed as of the time of
the enactment of the regulations or as of the present.
In so holding this court believes it appropriate to raise the
question of whethe~ a use such as a helipad should ever be per-
mltted as an aeccsso~rY use unless such use is specifically included
zoning regulations.
inI~l considering any .part. of .a zo~.ng ordman?, and th.e, 1
islative intent underlying ~t, the or(l~nanee mus~ De eonsmer~a
as a whole as well. An examination of the zoning regulations
of the ~rillage of ~ralley Stream'reveals that they make spccifin
provisio~ for such commonplace aecessorF uses as off-street
parking spaces in all zoning dis~ricts~ private garages, swim-
ming pools, tool shed-s~ fallout shelters and playhouses in resi-
dential districts; and have expressly excluded automobile wreck-
ing and ~unk yards as accessory uses in any district. Many
zoning regulations follow this format in substance. ~his court
finds it ~xtremely di~ieult to logically and reasonably infer that
legislators who had given suoh specifio attention to such common-
place accessory uses intended ~o encompass a helipad within the
definition of accessory uses.
This court suggests that the auth(irization of such uses as hell-
pads under the guise of their being an accessory use is an unwar-
ranted, application of the accessory use device. In Basset~
Zoning (Russell Sage Foundatlon~ 1936~ p. 100)~ the basis for
the custom of permitting accessory uses is explained as follows:
~During the formative period of comprehensive zoning it
became evident that .distriots could not be confined to principal
uses only. it had always been eus~omary f(~r occupants of homes
to carry on gainful employment as s~me~hin~ acc.essory, a. nd.
incidental to the residence use * ~' ~ The earhest zomng
ordinances took communities as they. existed and did not ~ to
prevent .customary practices that met with no ob~ecti0n from the
eolnnlunl~y. ~ ~
~ne extension of the accessory use definition to such uses as
· hellpads does not reflect a sound, realistio or reasonable eon°
struefion o~ the legislative intent of those who enacted such regu-
lations. Any land use which lnVolves the ~peration of aircraft
such as a helicopter bears 'heavily upon a community s healfl~
safety and welfare. ~he introduction ef suoha facility into a
GRAY v. WARD [74 M~sc 2d 50] 57
community is accompanied with ~erious implications which man-
date' mora direct regulation and centre! than the "accessory
uso ' approach permits. Judicial approval of such an approach
is a form of" zoning leniency "which should not be encouraged.
Assuming arguenclo that the proposed helipad were a permit-
ted accessory use, tho permit herein challenged must be invali-
dated in any event.' The Village Board was without authority
to grant it or authorize it as an accessory use ora special permit.
An examination of the return filed by the respondent village dis-
closes the following events in connection with this application:
An application for a heliport dated November 17, 1970 was
filed with the Village Building Inspector. By a letter dated
November 18, 1970, addressed to the applicant, as well as by a
memo to the Superintendent of Public Works dated September
7, 1971, the Building Inspector noted that the zoning regulations
do not permit such a use, and that the application should be sub-
mitred to the Board of Trustees'f~r a special permit.
Subsequently, by resolution dated January 17, 1972, the Vil-
lage Board denied the application, citing the following
objections:
"1. Insufficiency of submitted application.
"2. Hazard to the public (using this area in large numbers).
"3. Already burdened air space over the Village, especially in
foul weather when the glide p~th for planes landing at J~. F.
Kennedy International Airport.
"4. Danger of collision with large-structure in the area or
with other aircraft thus causing p.eril to dense'population of the
area.
"5. Discomfort of additional noise for homes located in the
immediate vicinity."
The original application was subsequently amended by a let-
ter dated September 7, 1972, from an attorney for Alexander's,
to limit it as follows: "The installation of a private executive
helipad as an accessory use to its retail store, the use of which
shall be limited to accommodate eight (8) Alexander Execu-
fives." By resolution dated November 16, 1972, the Village
Board authorized the" Superintendent of P~blic Works to grant
the permit, if required, permitting a heilpad as an accessory use
to Alexander's, Valley Stream."
It is a well-established building and zoning law procedure that
upon the refusal of a per.mit by a building official, the proper
proeedure is to appeal that d~cision to the Board of Appeals,
whose determination may thereafter be reviewed in an article
78 proceeding. Notwithstanding that the zoning regulations
eont~ain no provision'for granting a special permit for a hel~-
58 74 MISC~.'I-IANEOUS REPORTS, 2d SERIES
pad or heliport by the Village Board, the Building Inspector in
denyi.n,g the permit On the grounds t.hat the regulations did not
Permit such a use, referred the appheant to the Village Board
for a special permit. The Village Board, after having first
denied the original application and citing several serious objee-
't ions, Subsequently granted it in its amended form.
Among the power~ entrusted to a Village Board is the power
to rezon.e property and to amend the zoning regul.ations, after
approprmte and ~aandated public notices and hearings. Prop-
erty cannot be re~oned or zoning regulations amended without
following a prescribed procedure. Most zoning regulations pro-
vide, as do Valley Stream's, for 'the delegation to a building
official of the~ power to grant or deny' permits, subject to review
by the Board of Appeals after pubhc notre s and hearings, and
' subject to further review by a court by an appropriate proce.
dure. Implicit in this delegation is the power to interpret the -
ordinance. No power of interpretatio]i is yeSted in the Village
Board. However, a Village Board may rec~uest an interpreta-
tion from the Board of Appeals· While a Village Board may
express its own legislative intent bY the granting or denial of a
rezoning, or by amending the zoning regulatmns, xt is not empow-
ered to engage in quasi-judicial mterpretatmn o the intent of
other legislators who enacted the regulations a they exist at a
particular moment, y
· ~ ~ ' ' ~ has ineffeot (1)
By approwng the permit, the Vfll_a_g.e .B.oard
usurped the power of the building oflicm~ oy extending the
nition of "accessory use" to the proposed helipad; and ( )
bypassed the safeguards of review by a Board of Appeals, thus
engaging in "back-door rezoning" without the benefit or safe-
guard of the required public notice and hearings.
Aside from the lack o~ any authority to grant the permit, the
Village Board has, by devising a special procedure for this appli-
cation, actually avoided a direct confrontation with the problem
of regulating land Uses as tO such facilities.. At the same time
..... --- -~',hou* ex'~lanation and w~thout any a. pparent
change of circumstances, Completely disregarded the serious and
valid objections raised when the apphcat~on was m~tmlly denied.
It is the operation of a helicopter that poses the hazard to safety,
not the purpose for which the aircraft is operated. The hazard
to safety exists whether the helicopter is taking off and landing
f~om a heliport, as Alexander's originally proposed, or from a
helipad for the shuttling of corporate executives.
By their action ~e Village Bos[rd has obviously neglected tO
consider the consequences and implication, of its action if this.
ORA¥ ~. ~ARD [74 1~ 2d 50] 59
per,nit is validated by this court. If a he]ipad is to be' permit-
ted ks an a~cessory use for .A_]exander's, what is to prevent the
installation of a similar facility, on the basis of such interpre-
tation, at every major department store or any other eommer-
efal or industrial establishment, or at every residence whose
owner could afford it, for any of the purposes for which this
mode of transPOrtation may be utilized,~ Moreover, by giving
judicial sanction to a permit~ for a helipad as an accessory use,
a municipality would in effect be permitted to abdicate its
authority with respect to the regulation of these facilities as
they relate to the use of land within a community, and by impli-
cation a local community's police powers in this regard~would be
pre-empted. It is readily apparent that the consequences of
utilizing this approach for the introduction of helipads into a
community are far more serious and far-reaching than the use
of this approach reflects.
A further, question must als0 be considered: Do the provi-
sions of article 14 of the General Business Law, requiring village
approval and hearing and determination by the State Commis-
sioner of Transportation, apply to this limited-use helipad!
Federal Aviation Adm{nistratlon approval was obtained in 1968.
· At that time section 240 of the General Business Law, a defini-
tional section, provided: ~
"4. 'Landing area' means any lecality either of land or
water, including airports and intermediate landing fields, which
is used or intended to be used for the landing and take-off of
aircraft, Whether or not facilities are provided for shelter, scrv-
icing or repair of aircraft or for receiving or discharging
passenger? or cargo.. . . ' . ' .
"5.' Airport' means ~ny l.andmg area used regularly by a~r-
Craft for receivingor diSCharging pass. engers or cargo; or for .the
landing and take-off of aircraft being used for personal o~
training purposes. * ' '
"11. 'Helicopter' means an aircraft, the support of which
in the nir is normally derived from airfoils mechanically rotated
about an approximately vertical axis."
Section 249 (subd. 1, par. Iai) of the General Business Law,
in 1968, forbade the establishment of a privately owned airport
except by authorization of the governing body of the village
within which such airport was proposed to be established. Air-
ports established prior to April 12, 1947, the effective date of
this section, were excepted from this requirement.
In Thomso~ lint. v. l~corporated Vil. of Port ]Vasl~i~gto~
lforth (27 N Y 2d 537, 539 [1970], supra), the Court of Appeals
74 MISCELLANEOUS I~PORTS, 2d SERI£$
held that a helipad used occasionally for the landin~ and takeoff
of a business-owned helicopter, for purely business-connected
use, operating with FAA approv01, in effect since 1964, "comes
within the definitions contained in section 240 of the General
Business Law (subd. 4) and the requirements of section 249 of
that statute ' ° ° must be met."
The Village Board of Trustees' authorization required by see-
tion 249 of the statute tfas not been sought by Alexander's, and
therefore never was granted. The inaction of the Village Board
cannot be equated with. approval, given the strong legislative
policy in favor of regulation where public' safety is involved.
Illegal from its inception, the helipad can now be established,
zoning considerations apart, only in accordance with the require-
ments of section 249 of the General Business Law, as amended in
196g, which require hearing and. determination by.the State Com-
missioner of Transportation prior to obtaining the Village Board
of Trustees' authorization. (See Thorns°~ I~d. v. Z~corpor~te~
Fit. of Port Washi~gto~ North, supra.)
This cou~t does not intend to convey the impression that hell-
pads should be foreclosed for business, industrial or private use
in the Village of Valley Stream or elsewhere. Quite the con-
trary, the court recognizes that there is a demand for facilities
for the taking off and .landing of helicopters which should be met
as expeditiously as possible~ by reasonable and appropriate
regulations.
The village has had knowledge of the existence of a helipad at
Alexander's for some four years, and has had more than ample
opportunity within which to deal with this problem in a direct
manner by an amendment, after required public hearings, to the
zoning regulations. The difficulties presented in the formula-
tion of appropriate regulations' neither warrant nor excuse the
utilization of the "accessory use" device to permit the pro-
posed facility. If the Village Board is in favor of a hellpad
at Alexander's, as it presumably is, they have the legislative
power to permit the same'by amending the zoning regulations
to include a helipad as a special use or an accessory use, or even
as a primary use. All that this court suggests is that the village
act in accordance with established procedure, and not improvise
for a particular use. ' .
Accordingly, for all of fhe ~reasbn~ 'set forth hereinabove, the
court holds that the building permit granted by the Village Board
of Trustees of the Village of Valley Stream on November 17,
1972, to S & E Realty CO. for the construction of a rooftop hell-
pad at Alexander's department store is illegal and must be
annulled.
PubKshed by
4pUINLAN PUBLISHING C~O., INC.. 191 HIGH STREET, BOSTON. MASS. 02110
Subscription Pdce: S20.O0 pm, year
SEPTEMBER 1973
Rezoning - Held Invalid Md.
Stratakis v. Beauchamp 304 Atlantic 2d 244
Land was rczoncd from residence (3.5 units per acre to 16 units pez
acre). Thc land was formerly R-20 allowing two units per aesc, and it was
rcsoned after study in thc comprehensive plan to R-3. This was after a
study of the topographical conditions and the irregular size of thc lot.
Thc topographical aspects and thc irreguizrity of the lot are thc main
reasons seeking the 16 unit zoning. Experts testLfied that these conditions
made thc lots difficult for single rcsldence development. No evidence was
introduced to show that the laud could not be used for R-I which would
allow grcster density.
DECISION: The domincnt usc of thc surrounding arcs is residence with
one and two ~amily units. Under thc R-$ zoning, there could be a town-
house or an apartuient use.
To show confiscation, an applicant must show that he is dcprlved of
all use and that the land cannot be used for any of the permitted uses.
Statements of general unfeasibility are not competent to show lack of
Opinions of experts are not sufficient to show error in comprehensve
rezoning unless the reasons given by the experts as a basis for his opinion
plus other ~acts relied on by him are substantial and strong enough to
Creswell v. Baltimore Aviation 257 Maryland at 721.
General statements as to "fcssibility" and "profit" are insufficient to
make the matter fairly debatable. The comprehem/ve zoning RA is valid.
State University - Local Zoning Ordinances Del.
Newark v. University of Delaware 304 Atlantic 2d 347
Zoning ordinances of the City of Newark are not applicable to the
University of Dehware. A State University is a governmental hmction,
it has thc powe~ of eminent domain and these characteristics of power
give it immunity.
G~n County v. Monroe ~ Wisconsin 2d 196.
Page 2 - September 1975
Rezoning - Elimination of Buffer Strips HI.
Herrington v. County of Peoria 295 N. E. 2d 729
Land sought to be rezoned did not inchidc buffer s~rips on three sides,
so that the lot had no frontage. Protests were filed by owners of 20% ot
the f~ontage to be changed and raises thc question whether the elimination
of buffer strips bars the protestors.
DECISION: Protestors are not barred by not including the buffer strips.
If such were the case, the owner could later move to Tezone the strips,
thus resulting in piecemeal zoning. This is to be avoided.
Chapman v. County Will 291 N. E. 2d 658 (1972).
Rezoning - Objection by Voters La.
Jemison v. City of Kenner 277 Southern 2d 728
Rezoning to allow a gasoline station on a busy four cornet intersec-
tion was denied. There is a gasoline station across the street, but the ob-
jectoss were voters, and the refusal was to please them. Zoning officer
recommended the change.
DECISION: Denial of rezoning was unreasonable.
Residence Zoning - Entire Town Mo.
Bosch v. Renner 494 South Western 2d 339
A village consisting of five city blocks is zoned entirely for residence.
There is one nonconforming gas s~ation in existence. The owner bought
a lot with residence for $24,000 and seeks a change of zone, which was
denied. There was no evidence of a need for a commercial use. The vil-
lage is on the outskirts of St. Louis in St. Louis County. Business uses
across the street are in another village.
DECISION: This is a bedroom community. The residence zoning is
valid. No changes of condition were shown. The owner bought to
tempt a change of zone and his loss is financial.
Hardship - Sink Hole on Property Ky.
Menefee v. Bd. of Adjustment - City of Taylor Mills
494 South Western 2d 519
A variance was granted allowing construction of a house so as to face
the longest side rather than the shorter side as required by ordinance.
The reason was that there was a sinkhole on the property, and if the or-
dinance was complied with, the house would be over the sinkhole, which
was described as large enough to lose a truck in.
DECISION: This is an extraordnia~y sitnation in which the variance
was justified.
September 1977, - Page
Appeals - Ordinance Must be in Evidence - Findings of Fact Pa.
McClellan v. Zon. Hearing Bd. - Mt. Pleasant 304 A. 2d 520
Where an ordinance is absent from the record and thc hearing board
made no stenographic report of thc evidence, and the lower cour~ made
no wri~en tindings of fact, thc case is remanded. The merits of an ap-
peal cannot be iudged without findings of fact.
Res Adjudicata' Applies to Rezoning Miss.
Miller v. City of Jackson 277 Southern 2d 622
Land rczoncd from residence to commercial. Part of thc property
was subject to a prior dcnlal of rezoning in 1969. No allegations of change
since that time.
DECISION: Under Rcs Adiudlcata, there is no authority for the present
change of zoning. Rczonlng vacated.
Harris v. City of Jackson 268 Soutbem 2d 342.
Protestors within 100 feet - Elimination of N.M.
St. Bede's Episcopal Church v. City of Santa Fe
509 Pacific 2d 876
St. Bede's Episcopal Church tiled a protest as the owner of land within
100 feet on a rezoning matter,..At the hearing, the petitioner for rezoning
eliminated from his appl{cation land across the street from St. Bede's and
in so doing, St. Bede's ceased to be an owner within 100 feet.
DECISION: Where a petitioner seeks to avoid a larger vote on his appli-
cation by creating a buffer zone between his land and that of the objector,
such action is valid and eliminates the larger vote.
Heaton v. City of Charlotte 277 N.C. 506.
1 Rathkopf 28-11.
Appeal - Notice to Secretary of Commission Ore.
Culver v. Sheets 509 Pacific 2d 1221
The ordinance provided for appeals from a decision of the Planning
Commission to the Board of County Commissioners. It provided that no-
tice of the appeal shall be filed with the Secretary of the Board of Com-
missioners.
Appeal was made by giving notice directly to the Commissioners and
not the secretary.
DECISION: Notice to be filed with the secretary is not to give notice to
the secretary. It insures that the Commissioners will receive it. The sec-
retary's duties are clerical. She has no ex officio office under the ordinance
or stahite. The notice was adequate.
Stroh v. Stare'Accident Insurance 492 Pacific 2d 472.
Page 4 - September 1973
Planning Board - Permit - Finance Conditions Texas
Rhodes v. Shapiro 494 South Western 2d 248
Thc Planning Commission of thc City of Galveston has no authority
to require that a permit be conditioned on the project's being financed as
a Federally Subsidized Proiect.
DECISION: There is nothing in thc charter or zoning laws authorizing
such action. The Planning Board is reshictcd to determining if a proicct
meets the physical requirements of the ordinance. No discretion is versed
in the Planning Commission. The permit should issue.
Variance - Liquor Store Spacing - Void Conn.
Garibaldi v. Zoning Bd. of Appeals - Norwalk 303 A. 2d 743
The location of a liquor store was taken in eminent domain. The own.
ers sought other locations but they were all within a 1,000 foot limit of
liquor outlets. A variance was given them for a location within 200 feet
of another outlet.
DECISION: Variance void. The hardship must concern the land. This
hardship is personal and will not support a variance.
Highland Park v. Zoning Bd. of Appeals 155 Conn. 380.
Notice - Adequacy of Wash.
Glaspy & Sons v. Conrad 509 Pacific 2d 762
In a community which had no zoning, a notice was published which
stated that the purpose of the heating was to discuss the pros and cons of
a proposed zoning ordinance. A copy of the proposed ordinance is avail-
able at the Commissioner's office at the court house.
DECISION: The notice is adequate. Thc notice gives pergons the right
to come and express themselves.
Burlington v. Duno 318 Mass. 216.
Mobile Homes - Residence Area - Exclusion Colo.
City of Colby v. Hurts 509 Pacific 2d 1142
Criminal complaint. The defendant placed a mobile home on land
belonging to his father. A permit had been denied and later, a variance
was denied. Thc ordinance prohibits thc placing of trailers in anything
but a designated mohilc park area. Thc unit was placed oo a foundation
and utilities were installed.
DECISION: Thc ordinance is a valid exercise of the police power. Mo-
bile homes are used for residences and have special characteristics. They
involve potential hazard to public health if not properly spaced. Scattered
September 1975 - Page 5
in residential communities they may well stunt the growth and develop-
ment of such areas.
See Martin v. Davis 187 Kansas 473.
Annexed Land - Increase of Zoning Confiscatory Colo.
Cherry Hills Village v. Trans-Robles Corp. 509 Pac. 2d 797
Pfi~r to annexation, the lots in this area were zoned for one-half acre
size. Streets were laid out, sewer and water lines installed, paving, curbs
and gutrers were installed, all in accordance with existing laws.
A new ordinance after annexation required t~vo and one-half acres per
lot with set backs which could not be complied with. The trial court found
that no reasonable use could be found under the new law.
DECISION: The new ordinance is confiscatory and void.
Rezoning - Increased Municipal Burden Mich.
Smookler v. Township of Wheatfield 207 N. W. 2d 464
Rczoning ot agricultural land for a mobile bomc park was denied tot
the reason that such a usc would double thc population ot thc township
and that it had no adequate police and tire protection for such a develop-
ment.
DECISION: Thc reasons indlcatc an increase of municipal burden and
do not justify a denial ot reaon/ng.
Nonconforming Use - Billboards - Establishment of Mich.
Dingeman v. Algoma Township 207 N. W. 2d 488
Thc owner obtained a permit for a billboard. Hc had the site staked
out, the power company installed a pole with a transformer, and a contract
for advertising was obtained. Then the zoning was changed barfing bill.
board use.
DECISION: There is no nonconforming use. Regardless of money spent
in preparation for construction, there must be some tangible change in the
land itselt by excavation and ennstmction.
The owner acquired no vested fighl~.
Accessory Use - Helipad - Department Store ,Y.
/ Gray v. Ward 343 N.Y.S. 2d 749
A permit was given for the construction of a helipad on top of a de-
pag~nent store as an acccsso~ usc. There had been a pad there before,
approved by the Federal Aviation Commission but not formally approved
Page 6 - September 1975
by the Village Board. After a denial by the building inspector, the Village
Board granted the use.
It is alleged that there are several residences and other buildings in the
immediate area and that the use is a danger to persons and homes in
the area.
DECISION: After a refusal by thc building inspector, the matter should
have been presented to the Board of Appeals. The Village Board had no
authority to grant the pemait for an accessory use of this type.
A helicopter pad is not an accessory use even though they are being
used wth more frequency. If rite Board approves of this use, they have the
legislative power to amend the ordinance by the statutory method of no-
flee and hearings. The Board had no power to allow the use otherwise.
Defintions - "May" Indicates a Discretion Del.
Scarborough v. Mayor and Council - Cheswold 303 A. 2d 701
Thc Enabling Act providcs that thc Lcvy Court "may" apply its zoning
to incorporated areas having no zouing. Thc word "may" indicatcs a dis-
ercfion and thc Levy Court may or may not decide to apply its zoning ac-
cording to its dlserction. The dccision ot thc Levy Court not to include
this town is not an abuse of the Enabling Act.
County Zoning v. Local Ordinance - Sewers N.Y.
Walsh v. Spadaccia 343 N.Y.S. 45
Thc local nsdinancc provided that multi unit apartments bc serviced
by public sewers. The~_County Board o~th'approved thc use ot
tanks an~V'ffi~ town Board approved the~sit~ plan without regard to thc
local ordinancc rcquiremcnts.
DECISION: The approval of thc site plan was arbitrary. Thc local ordi-
nancc controls, and public sewers arc rcquircd. Compliancc with thc Statc
or County Law does not relievc an owner 1sore complying with more strin-
gcnt local rcquircmcnts. Approval oI site plan annul]cd.
Special Permit - Conditions. Guidelines Wash.
State ex rel Standard Mining v. Auburn 510 Pacific 2d 647
A special permit Ins a gravcl pit was granted subicct to conditions. The
pcrmit holder claims that the ordinance docs not provide guidelines in thc
consideration of condilions. Thc city claims to have followed thc comprc-
hensive plan.
DECISION: There is no requirement for standard~ for the impostifion
of conditions.
If the purpose of the special permit is known, the courts can examine
the conditions and determine whether they are reasonable or onerous. The
September 1973 - Page 7
guidelines of the comprehensive plan reveal a purpose to provide for pro-
tection of neighboring property and to prevent the use from becoming an
eyesore. If the conditions comply with this concern, they should not be
set aside.
Residence Area - Exclusion of Unrelated Persons N.Y.
Boraas v. Village of Belie Terre 476 Federal 2d 806
A village ordinance prohibits groups of persons, not rciatcd, as distin-
gnisbed from traditional families related by blood, from occupancy in a
single residence zone.
DECISION: Thc ordinancc discriminates against unmarried pe~sous and
it vlolatcs the Equal Protection Ciausc ot thc Constitution. Thc protec-
finn of traditional family groups or patterns is not a proper cxescisc of thc
police power of thc S~atc. These social preferences have no relation to thc
public bealth, satcty and welfare.
Shapiro v. Thompson 394 United States 619.
Rccdv. Reed 404 United States 71.
This ordinance would bar three single nurses, three priests, three judges
and three students. This cannot be done any more than the restriction of
the number of children which married people may havc, to live in a certain
area, or minimum income, or the requirement that people pass muster by
an "admission committee."
Aggrieved Person - Organization Mass.
Amherst Growth Study Comm. v. Bd of Appeals
296 North Eastern 2d 717
An organization, not owning property, organized to opposc a special
permit issued, is not an aggrieved person, for purpose of appeal. There
mint be a private interest.
Sierra Glub v. Morton 405 United States 727.
Declaratory Judgment - Planning Commission Md.
Maryland Nat. Cap. P. & P. Comm. v. City of Rockville
305 Atlantic 2d 122
By statute, land annexed by a cry may not be ~czoned to al]ow a sub-
stantially different use for a period of five years. The City of Rockville
rezoned recently annexed land to allow a use allegedly substantially dif-
ferent.
A suit for declaratory judgment was brought by the county and the
Area Planning Commission. Trial court sustained a demurrer.
DECISION: This case presents a proper issue for declaratory relief. It
calls for the interpretation of a statute and for the validity of certain ordi-
nances in conflict with the statute.
Page 8 - September 1971;
The county and the commission do not have an adequate remedy at
law since the statute in question does not provide for statututy appeal. Not
would the county and the commission be "aggrieved parties" for the pm-
poses of administrative review since ncithcr owns any property within sight
or sound of the subject InOperty, nor has either any special interest or a,,~.
age sufficient to confer that stattts~
Btyniarski v. Montgomery Co. Bd. of Appeal 21;0 Atlantic 2d 289.
Reversed and remanded.
Special Permit - Discretion is 'with the Board Mass.
Copley v. Bal. of Appeals - Canton 296 N. E. 2d 716
Denial of a special permit on the grounds that there would be an in-
crease of traffic during the rush hours, is proper. The discretion is f~t the
Board and not the courts.
Gulf Oil Co. v. Bd. of Appeals - Framinghem 1;55 Mass. 275.
There is no evidence here that the ruling was mbitra~y. In tach a case,
the court could determine arbitrariness.
Tambone v. Bd. of Appeals - Stoneham !;48 Mass~
Bd. of Appeals - Must Decide Special Permits by Statute Wi~e.
S~to ex rel Skelly Oil v. Dela~ield 207 N. W. 2d 585
The Planning Board rejected an application for a conditional use and
an appeal was taken to the council. The statute provides that appeals be
made to the Board of Appeals.
DECISION: The statute conveys exclusive authority in the Board of Ap-
peals to pass upon conditional uses and special exceptions. The authority
to the council is in direct derogation of the Enabling Act and is void.
Appeal - New Evidenec- Not Allowed Ohio
Schoell v. Sheboy 296 N. E. 2d 842
On appeal, the Court of Common Pleas overruled the decision of the
Zoning Board of Appeals and held that the plaintiff had a valid noncon-
forming ns~
Additional evidence which had not been introduced before the
Bo~l was co.tiered by the Court of Common Pleas.
DECISION: The Corot of Common Pleas is confined to the tumserlpt
of proceedings before the Board. The evidence before the Board was in-
sufficient to establish a nonconforming use. Lower Corot ovemded.
FORM NO. 3 · ~
TOWN OF SOUTHOLD
BUILDING DEPARTMENT
TOWN CLERK'S OFFICE
SOUTHOLDr, N. Y.
NOTICE OF DISAPPROVAL
File No ................................................................... Date ................... ./....0.. ....................... 1~...~..
To. ....... ~ ...............................................................
.... .......... ..............................................
PL[ASE TAK[ MOTIC[ thor your ~pplic~ticn dated .......... ~..D ........................ 19..J..~.
.................................................................... ~t~eet :::~.::~::~,.:~. /: ~
~.1 I,,,e~:~i, o~ dsopproved on tho {olown~ ~rounds ~.~,~ ~ ~ '
' t '~[~' ~'~ ~"r .... : "~"~'"~'
............................................................................. . .. ~.~ ...................... ~,t' · ~,. ~
....................... ~ ....... 19 ........ ~ .................... "' "~ ...... ~"~"~:-':-">'"~'~"~-~ ..... ~,~ ...... ~: ~
.................... ~ .......................... ............ ,~. ~ .............................. ,.,~;-~ ~.. t:,~ .~ ~..~.~>~,~. ~. ~. ~
Buildin'~ Inspector ]
/
TOWN OF SOUTHOLD, NEW YORK
APPEAL FROM DECISION OF BUILDING INSPECTOR
APPEAL NO.
DATE At~g~s t 1';0
TO TH~E~ZQNING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y.
1, (We)..B.,~..i.f~......L.,~r~?.,9.~. .................................... of .......... .R..:.[D..?..1 ...... .b..q.x.....~.~;~.~...z. ..... ~.1.~ ...............
Name of Appella,nt Street and Number
.... .4 i0oY.
............... ."~"'.i~kt.'tT,.:;k~I%Q~ ...... : ............................................................................ HEREBY APPEAL TO
Municipality State
THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILI~NG INSPECTOR ON
WHEREBY THE BUILDING INSPECTOR DENII~D TO
973
Name of Applicant for permit
of
Street and Number Municipality State
( ) PERMIT TO USE
( .) PERMIT FOR OCCUPANCY
.,. ~. _ om dist
(X) Permit to operate temporary seasonal areal s~raying ~w ~ '~A"
property
1. LOCATION OF THE PROPERTY .~./~.....0~8~n...;~a, ............. , ............................. ~ ......~
~treet Use District on Zoning Map
...... ~ ........................................... ~ ................ z~a¢ u_¢~ Lx~ ,~,
Map No. Lot No.
2. PROVISION (S) oF THE ZONING ORDINANCE-APPEALED (Indicate the Article Section, Sub-
section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordi,nance.)
Art III section 300 C accessory agricultural use & AttiC{ Sec 900 ~6
TYPE OF APPEAL Appeal is made herewith for
A VARIANCE to the Zoning Ordin.ance or Zoning Map
A VARIANCE due to lack of access (.State of New York Town Law Chap. 62 Cons. Laws
Art. 16 Sec. 280A Subsection 3
4. PREVIOUS APPEAL A previous appeal (~qa:s not) been made with respect to this decision
of the Building Inspector or with respect to this property.
Such ~ppeal was ( ) request for a special permit
( ) request for a variance
and was made in Appeal No ................................. Dated ......................................................................
REASON FOR APPEAL
( ) A Variance to Section 280A Subsection 3
(~) A Variance to the Zoning Ordinance
( )
is requested for the reason that : Z have been refused access to the triattit~.ck
airbase field with my planes equiped with sprayin~ apparatus~
Porn~ ZB1
(Continue on other side)
REASON FOR APPEAL
Continued
1. STRICT APPLICATION OF THE ORDINANCE would produce practicaldifficultie,sorunneces-
sa~ HARDSHIPbecause ~ There is no approved airfiei@ other than Mattituck
where i can operated the spraying service for local farme~. We
operate about a four month season doing work for about '30 farmers
covering about 200~ acres with the aerial spraying service,
We some times have to do minor repairs on the equipment between
spray±rig f~ights~ no major revairs to ~lanes or equipment are done
where we land to refill the tanks,
2. The hardship createdis UNIQUE andisnotshared by all properties alike in the immediate
vicinity ofthis ~r~erty and in this use dis~ict because~
Aerial spraying is the most
efficient way to couver the fields ~m~iformiy~ and in a minim, nm amount
off time, It is more efficient than has been done in the past by
the individual farmer with tracvor drawn equipment,
3. The Variance would observe the spirit of the O~inance and WOULD NOT CHANGE THE
CHAP~,CTER OF THE DISTRICT because ~ This is a seasonal accessory use ~o
agriculture - one o£ the Towns most important sources of income, The
refusal of the ~attituck Airbase to allow the use if the regular airport
facilities leaves no choice but to overate in an 'A' district.
The use of one one landing strip where ali necessary s~plies can
be located is more pref£erab!e than to have to make provisions to land
and refill on each individual farm being serviced.
STATE OF NEW YORK )
) ss
COUNTY OF S~_efoik )
Sworn to this ....................... .1..O.. .................. day of ....................... .A...~.g~.s.~ ................... 1973
Notary Public