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WILLIAM J. BAXTER v. ROBERT W. GILLISPIE (06/30/69)
SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY
1969.NY.42248 <http://www.versuslaw.com>; 303 N.Y.S.2d 290; 60 Misc. 2d 349
June 30, 1969
WILLIAM J. BAXTER, JR., ET AL., PETITIONERS,v.ROBERT W. GILLISPIE, JR., ET AL., RESPONDENTS
William Wickham for petitioners.
Clifford Tyler and Edwina Tyler, respondents in person.
Robert W. Tasker for Board of Appeals of Town of Southold, respondent.
Jack Stanislaw, J.
This article 78 proceeding is brought to review and annul a decision of respondent Board of Appeals of the Town of Southold ("Board") which granted permission to respondents Tyler to use a portion of their two-acre parcel of land, located on the north side of School House Road, in the hamlet of Cutchogue, Town of Southold, for the operation of a transient trailer camp area, pursuant to the applicable sections of the town's Building Zone Ordinance. The Tylers reside in a home located east of the subject parcel, on School House Road; and immediately to the west is land, owned by the town, used for drainage purposes.
Petitioners own property adjacent to the subject premises, as follows: William J. Baxter, Jr., owns a small parcel on the westerly side, north of the land owned by the town; further north of that property and bordering the northerly boundary of the subject premises is a 30-acre parcel, owned by petitioners Baxter and Goeller; petitioner Kurczewski owns a 26-acre parcel, which borders the easterly side of the subject premises.
Under the town's original Zoning Ordinance, enacted in 1957, all of the property in the surrounding area, including the Tyler premises, was zoned "A" Residential and Agricultural. In March of 1958, the subject parcel, as well as property along the south side of School House Road (opposite the Tyler property) was rezoned "B" Business. The Tylers then constructed a concrete block garage on their property and, for the past 10 years, have been conducting a public garage business there. In 1965, upon the application of petitioners Baxter, a parcel of land owned by them on the southeast corner of School House Road and Griffing Street (diagonally opposite the Tyler property) was rezoned from "A" Residential and Agricultural to a "B-2" Business District. Except for said parcel, petitioners are using their land only for farming purposes.
East of the Tyler residence and along both sides of School House Road are about a dozen homes built on relatively small plots. West of the 30-acre parcel owned by petitioners Baxter and Goeller, is a large tract of land owned by the Sacred Heart Roman Catholic Church. About 150 feet south of School House Road is property owned by the Cutchogue Elementary School. The school house itself is on Depot Lane, approximately 1,000 feet from the subject parcel.
Petitioners claim the Board's decision is: (1) not in harmony with the general purpose and intent of the Building Ordinance of the town; (2) not in the interest of the public health, safety and the general welfare of the community; (3) a flagrant violation and abuse of the discretion vested in the Board of Appeals; (4) without evidence or findings and not warranted by the facts; and (5) damaging to petitioners in that it reduces the value of their property. They further contend that the Tylers failed to establish or comply with the standards and requirements of article VIII, section 801-C, of the town's zoning ordinance and that the evidence presented at the hearing of the application indicates that the standards and requirements necessary to grant a special exception in this case do not exist.
It is not disputed that, under the town's Building Zone Ordinance, a trailer camp (consisting of "any lot, piece or parcel of ground where two or more tents, tent houses, camp cottages, house cars or house trailers used as living or sleeping quarters are or may be located" (art. I, § 100, subd. 23B), may be permitted in a "B" Business District "when authorized as a special exception by the Board of Appeals" (art. III, § 350, subd. 4; art. IV, § 400, subd. 1).
Article VIII (§ 801 A, subd. C [a]) of the ordinance provides that before approval of such permissive use shall be given, the Board of Appeals shall determine: "(1) That the use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts;
"(2) That the use will not prevent the orderly and reasonable use permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established use in adjacent use districts;
"(3) That the safety, the health, the welfare, the comfort, the convenience or the order of the Town will not be adversely affected by the proposed use and its location; and
"(4) That the use will be in harmony with and promote the general purposes and intent of this Ordinance."
Subdivision C(1)(b) of said article enumerates 12 separate items to be taken into consideration by the Board in making its determination, including: the character of the existing and probable development of the area; conservation of property values and encouragement of most appropriate uses of the land; traffic congestion; availability of adequate sewage facilities; whether the proposed operation will cause obnoxious by-products, noise or undue interference with the orderly enjoyment by the public of other facilities in the area; whether adequate parking facilities will be provided by the owner of the plot; potential hazards to life, limb and property; overcrowding of land or undue concentration of population; the sufficiency of the plot area; and whether it is unreasonably near a church, school, theatre, recreational area or other place of public assembly. Subdivision C(1)(c) of the article directs the Board, in authorizing such permissive uses, to "impose such conditions and safeguards as it may deem appropriate, necessary or desirable to preserve and protect the spirit and objectives of this Ordinance."
The town ordinance, relating to the regulation of tourist, trailer and house trailer camps requires the operator of such camp to: (1) possess a nontransferable permit from the Department of Health and the Town Board, subject to revocation for cause; (2) submit a plan showing the area of the plot to be used, proposed methods of garbage and sewage disposal and sources of light and water supply, subject to approval by the Board of Health; (3) allow at least 40 by 50 feet in area for each unit upon which a tent, trailer or camp cottage is to be erected or placed; (4) maintain detailed records, available for inspection; (5) and provide a suitable planting at least five feet high to screen the trailer camp from public lands and highways, the location of which shall be approved by the Town Board. The decision of respondent Board, granting the application is as follows:
"After investigation and inspection the Board finds that the applicant requests permission to operate a transient travel trailer camp area. The applicant owns a lot 373 feet on the west boundary, 205 on the north boundary, approximately 412 feet deep. The concrete block garage that is occupying part of the property is located 110 feet from School House Road. The area that would be used for the purpose described in this application would be west and north of the concrete garage. The plan shows ...