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SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1968.NY.43834 <>; 306 N.Y.S.2d 731; 61 Misc. 2d 813 December 12, 1968 LOUIS V. ALBINI ET AL., PLAINTIFFS,v.JOSEPH A. STANCO, AS BUILDING INSPECTOR OF THE CITY OF GLEN COVE, ET AL., DEFENDANTS Carlino & Friedman (Joseph Carlino of counsel), for plaintiffs. Albert Silver, City Attorney, for defendants. Frank A. Gulotta, J. Author: Gulotta

Frank A. Gulotta, J.

Author: Gulotta

 The plaintiff Albini and his wholly owned corporation, Mallad Construction Corp., are united in interest and will be so treated throughout this opinion.

The action is one for a declaratory judgment in which the plaintiff seeks an adjudication that a Building Zone Ordinance of the defendant city under which he was given a building permit for an apartment house is valid, that the permit itself is likewise valid, and that he has a vested right to continue building thereunder.

Beside denials, the answer pleads as an affirmative defense, that plaintiff was warned by an order of this court on October 17, 1967, by Pittoni, J., that continued construction would be at his own risk.

It appears that in or about November, 1966, plaintiff became interested in a 4 3/4-acre parcel of land at Pearsall Avenue and Glen Street, Glen Cove, known as the Titus property, as a site for a four-story apartment house. It was then being used as a lumber yard, although the City Council at the time was considering amending its ordinance so as to permit an apartment house use of the site in question. It was already under contract of sale to Ben David Pearl Corp., and on December 30, 1966, plaintiff agreed to purchase the contract from Ben David, the future assignment being contingent upon the change of zone being finalized.

On January 18, 1967, the City Council adopted new zoning requirements for apartment houses which, among many other changes, permitted construction to a height of four stories, and also adopted a notice of intention to amend the zoning map of the city and sent the latter to the Planning Board for its consideration and recommendations in accordance with section 24-21 of the Code of Ordinances.

On March 28, 1967, the Council adopted amendments to the zoning map, following the modifications recommended by the Planning Board. On the new map the Titus parcel is included in the R-5A, Central Apartment House Overlay District as a "C" parcel.

Before proceeding with the apartment house project it was necessary that Albini obtain site approval of the plot plan from the Planning Board and he continued with the architect who had been hired by Ben David for that purpose. Site approval was obtained on July 11, 1967, and building plans were then filed with the Building Department. These were processed for over a month and then approved on August 24, 1967, and a permit issued. The latter takes the form of stamping "approved" on a copy of the original plans which are then returned to the applicant.

Title to the land was conveyed August 31, 1967, the plaintiff paying $370,000 cash therefor. Plaintiff had been lining up subcontractors from March onward and after title closed he entered into contracts with them covering most of the work to be done, since he does none of it himself in his own organization. Ground was broken, the existing structures demolished and footings and foundations put in. A large amount of soil had to be moved first, since the site approval had required lowering the grade of the parcel some 12 feet.

In the meantime on August 26, 1967, and unknown to Albini, one Andrew J. Pilla and others commenced an action against the city and the then owner, Titus, attacking the validity of the amendments to the zoning ordinance. This information was withheld by the seller at the closing five days later and Albini did not learn of it until September 27, 1967, when he was served with motion papers to add him to the Pilla case as a party defendant. He had already done a considerable amount of physical work on the property in addition to having obligated himself by contract to numerous subcontractors and suppliers. The proof shows that as of October 17, 1967, when Justice Pittoni's decision referred to in defendants' answer was rendered, plaintiff had made actual out-of-pocket payments of $579,804 which included the cost of the land, or about $200,000 if the land is excluded. Firm contract obligations by that time amounted to $1,531,751. Pictures of the project show the stage it had reached on October 17. These photographs show footings and foundations in various stages of installation and were estimated moneywise by witnesses at the trial to constitute 10% completion of Building A and 20% of Building B.

After Albini became a party to the Pilla action, his efforts were directed toward obtaining a prompt trial on the merits, whereas the plaintiff sought to delay it. When the case came on for trial before Justice Brennan on December 12, 1967, he refused to grant plaintiff any further adjournments and the parties thereupon entered into a stipulation in open court discontinuing the action as against Albini "with prejudice" and an order was entered to that effect on December 14, 1967. The order also canceled the lis pendens.

A new administration took over in Glen Cove on January 1, 1968, and on February 26, 1968, plaintiff received a letter from the Building Inspector, sent at the direction of the Mayor, revoking his building permit for two reasons: (1) that the fees paid for it were insufficient; (2) that the plans violated the zoning ordinance in providing for "fire protected" construction instead of "fireproof" construction. Plaintiff promptly commenced the present action and made a motion for a temporary injunction restraining the defendant from interfering with his operation pendente lite, which came on for argument before Justice Sullivan on March 15, 1968. He denied the motion on March 26, referring to a decision which had been made by Justice Albert in the Pilla case on March 5 and which held the ordinance amendment of January 18, 1967, "void and of no effect" principally because the resolution had never been voted upon by the City Council. Justice Sullivan pointed out that since this was a holding that the ordinance was void ab initio, the plaintiff had shown no clear legal right to relief and therefore could not obtain same in advance of a trial. He, of course, had no way of knowing that factually the basis for Justice Albert's holding did not exist and that on June 18, 1968, he would amend his decision by eliminating that basis for it and relying only on the second ground, to wit: that there were substantial differences in the zoning amendment as enacted and the prior notice of public hearings advertised. Justice Albert did not amend the judgment itself and there was no one to urge him to do so, since at the same time he denied a motion by Albini to intervene, thus foreclosing any direct attack on the judgment by appeal or otherwise, by the only person interested in doing so.

On April 3, 1968, plaintiff was served with a criminal summons for building without a permit and construction has been halted since that time.

Turning first to the merits of the revocation: Plaintiff's Exhibit No. 39 shows that plaintiff paid fees of $4,758 for the permit on the basis of estimated construction costs of $1,184,000.The city's contention that this was inadequate is based on an affidavit which plaintiff's attorneys filed in connection with this litigation showing that his entire investment would be substantially more than that sum. This, of course, included the land, architect's fees, attorneys' fees, overhead, interest, taxes, etc. which are not considered construction costs. Nothing was offered by the city on this trial to show what the actual cost of construction would be. Furthermore, the proof is and it is confirmed by the City Building Inspector, that at the time of procuring the permit Albini proffered and he, the Inspector, accepted a proposal that final determination of construction costs would be deferred until the building was completed and that he, Albini, would furnish satisfactory proof of the actual cost before a certificate of occupancy would issue and that the exact permit fee would then be fixed and paid.

As to the second ground, it is undisputed that the city duly adopted the State Construction Code on May 25, 1954, and has been operating under it for the past 14 years and has never withdrawn from it. Glen Cove appears in the list of municipalities following section 374-a of the Executive Law as one of the municipalities which adopted the code, and under the section itself there is no method provided to withdraw from it piecemeal. Furthermore, subdivision 1 of section 386 of the Executive Law states: "Nothing in this article shall be construed as prohibiting any municipality from adopting or enacting any building regulations relating to any building within its limits, but no municipality in which the state building construction code has been accepted and is applicable shall have the power to supersede, void, or repeal or make more restrictive any of the provisions of this article or of the rules and regulations adopted by the council hereunder." On July 26, 1966, the zoning ordinances of the city were codified and put in a single volume. The adopting ordinance for this codification section 2 states, that while contrary ordinances are repealed, no resolution not specifically mentioned is repealed. Since the adoption of the State code was by resolution rather than by ordinance, it follows that it is not deemed repealed by implication.

Section 5-1 of the new code again adopts the State Building Code for Glen Cove but purports to give the local building code precedence over the State code where there is a conflict, which under section 386 of the Executive Law it may not do.

There is no direct reference to the 1954 resolution other than in a parenthesis at the end of section 5-1, so it is debatable whether it was intended to alter the city's adherence to the State Building Code in this indirect way. But even if we assume that it was, it is apparent from the provisions of the Executive Law quoted above, that it was ineffective to do so.

It is undisputed that the State Construction Code prescribes " fire protected " construction for a four-story building and not " fireproof " construction. It was for this reason that the Building Inspector told Albini that his building could be of fire-resistant construction.

The amendment to the zoning ordinances passed by the City Council on January 18, 1967, in addition to many other changes in apartment house regulations, at column 22 item 3, had called for fireproof construction, but on April 11, 1967, this requirement was repealed when it was called to the City Council's attention by the Building Inspector that it was invalid because it was contrary to the State code.

Thus it is apparent from this analysis that neither of the reasons assigned by the city in the letter of revocation was a sufficient reason, or indeed any reason at all for the action it took. There remains for discussion the soundness of the city's attack on the ordinance itself.

At the outset it may be well to point out that the trial before Justice Albert was a joust with a strawman, since the city was as anxious for the plaintiffs to succeed as the plaintiffs were themselves, but even so, it was rather a remarkable affair. The city started out by conceding that if a certain witness were called by the plaintiffs he would testify that putting an apartment house where the lumber yard had been would depreciate the value of the plaintiffs' nearby private residences.

The City Attorney then stipulated not merely to what a witness might say, but to the legal conclusion that the differences between the notice and the ordinance were substantial thus stipulating the plaintiffs' entire case.

The City Clerk and the Secretary to the Planning Board were both called as witnesses in the Pilla case and testified as to what their official records showed. The records themselves were also produced in court. These records show the following series of events which will be somewhat condensed for the sake of brevity:

Plaintiffs' Exhibit No. 1 -- November 22, 1966, City Council adopted resolution of intention to amend the zoning ordinance re: apartment house districts and referred same to the City Planning Board for hearing and report.

Plaintiffs' Exhibit No. 2 -- Planning Board minutes of December 6, 1966, ordered a public hearing on the Council proposal to be held December 20, and publication of a notice thereof in the official newspaper of the City, the Glen Cove Record-Pilot.

Plaintiffs' Exhibit No. 3 is a copy of the newspaper publication with an affidavit of publication.

Plaintiffs' Exhibit No. 4 shows that an extensive public hearing was held before the Planning Board and in the last paragraph on page 7 it records that the hearing was adjourned to January 3, 1967, for the purpose of having the recommendations of Raymond and May, planning consultants, published along with a republication of the Council's proposals.

Plaintiffs' Exhibit No. 5 is a facsimile of the republication of the Council's proposal and also the Planning Board's proposal and shows ...

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