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MATTER BOARD COOPERATIVE EDUCATIONAL SERVICES NASSAU COUNTY ET AL. v. EDWARD J. GAYNOR (08/20/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.42773 <http://www.versuslaw.com>; 303 N.Y.S.2d 183; 60 Misc. 2d 316 August 20, 1969 IN THE MATTER OF THE BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF NASSAU COUNTY ET AL., PETITIONERS,v.EDWARD J. GAYNOR, AS DIRECTOR OF THE DEPARTMENT OF BUILDING AND ZONING OF THE TOWN OF OYSTER BAY, ET AL., RESPONDENTS Seymour H. Kligler for Board of Cooperative Educational Services of Nassau County, petitioner. Halperin, Somers & Goldstick for Dalebass Realty, Inc., petitioner. Bernard F. McCaffrey, Town Attorney, for respondents. Sol Wachtler, J. Author: Wachtler


Sol Wachtler, J.

Author: Wachtler

 This is a proceeding brought by petitioners pursuant to article 78 of the CPLR.

The petitioner, Board of Cooperative Educational Services of Nassau County (hereinafter referred to as "BOCES") is a duly constituted and established Board of Cooperative Educational Services, organized and existing pursuant to the provisions of section 1958 of article 40 of the Education Law of the State of New York, having been established by order of the Commissioner of Education in October, 1967.

On June 26, 1969, the petitioner, BOCES, designated as lessee, and the petitioner, Dalebass Realty, Inc., (hereinafter referred to as "Dalebass") designated as lessor, entered into an agreement whereby Dalebass was to construct three one-story buildings on certain real property for the express use and occupancy by BOCES. This agreement provided, among other things, that within 30 days from the date thereof, Dalebass would become the owner in fee simple of the demised premises.

The purported lease agreement provides for a five-year term with an option to renew for an additional five years. In addition the agreement provides BOCES with an option to purchase the property and improvements after the expiration of the 10-year term, subject to a referendum of the voters of Nassau County approving such a purchase. The execution of the said agreement by BOCES was approved by resolution of the BOCES board at a special meeting held on June 26, 1969.

The subject premises comprise a parcel of land consisting of approximately 4.1 acres located on the north side of Cold Spring Harbor Road in the unincorporated area of the Town of Oyster Bay, Nassau County, New York, and is located in an area designated "B" Residence District pursuant to the Building Zone Ordinance of the town. On June 30, 1969 the petitioner closed title to the said premises and on July 3, 1969 the petitioners BOCES and Dalebass made three applications for permits to build the buildings called for in the agreement between the parties. Subsequently and at the insistence and request of the Building Department of the town, the petitioners did submit, among others, the following documents:

(1) An "Affidavit of Use" by the President of Dalebass, sworn to July 3, 1969 attesting that the three school buildings to be erected on the subject premises were to be used by BOCES, as tenant, "as a regularly organized high school having a curriculum approved by the Board of Regents of the State of New York, to wit, as a school for occupational education having a curriculum approved by the Board of Regents of the State of New York for high school and other students at the high school level".

(2) A letter dated June 26, 1969 from the Associate Superintendent of BOCES to the Building Department, advising them that BOCES had entered into a lease agreement for the construction of school buildings on the subject premises to be used "as a school for occupational education, having a curriculum approved by the Board of Regents of the State of New York for high school and other students at the high school level"; and

(3) A telegram from the Chief of the Bureau of School District Organization of the State Education Department to the Building Department of the town, advising the Building Department that "the curriculum offered by the Board of Cooperative Educational Services of Nassau County is a Regents-approved program." On July 18, 1969, after submission of various plans and surveys, the three applications for building permits on the subject premises were approved by the Department of Building and Zoning of the Town of Oyster Bay and building permits were issued to BOCES, as permittee, for construction of the three school buildings on the subject premises. Prior thereto and on July 7, 1969, the final plans for the three proposed school buildings were approved by the Director of the Division of Educational Facilities Planning of the State Education Department.

Prior to the issuance of the said building permits certain site clearance took place and between the dates of July 18, 1969 (the date of issuance of the building permits) and August 4, 1969 the petitioner Dalebass performed certain construction work on the site including the installation of a foundation for one of the buildings to be constructed.

On August 4, 1969 the respondent Gaynor, the Director of the Department of Building and Zoning of the town, transmitted a telegram to petitioner BOCES and to the general contractor working for Dalebass, stating that the building permits were suspended pending legal determination of the use of the property and calling for the cessation of all work on the property. On that same date the petitioner BOCES received a handdelivered letter from the Building Department advising it that the building permits were re-evaluated and, based on an opinion by the Office of the Town Attorney, the same were suspended until certain facts had been adduced and the validity of the said permits subjected to further legal review.

On August 5, 1969 after a meeting between representatives of the petitioners and officials of the town, the petitioners were advised that the building permits had been revoked and that all work was to cease immediately.

Petitioners now seek judgment reversing and annulling the determination of the respondent Gaynor which resulted in the revocation of the building permits previously issued, as well as a permanent injunction enjoining the respondents from interfering with or impeding the ...


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