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INCORPORATED VILLAGE MUTTONTOWN v. LOUISE FRISCIA ET AL. (08/28/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.42785 <http://www.versuslaw.com>; 304 N.Y.S.2d 664; 60 Misc. 2d 1014 August 28, 1969 INCORPORATED VILLAGE OF MUTTONTOWN, PLAINTIFF,v.LOUISE FRISCIA ET AL., DEFENDANTS Sprague, Dwyer, Aspland & Tobin for plaintiff. Friscia, Claybrook & Bank for defendants. Steven B. Derounian, J. Author: Derounian


Steven B. Derounian, J.

Author: Derounian

 In this action to enjoin the defendants from using the stable on their premises, such use alleged by plaintiff village to be in violation of the Village Zoning Ordinance, defendants' motion for summary judgment dismissing the complaint is denied. Plaintiff's cross motion to grant summary judgment in its favor and to dismiss the first affirmative defense contained in the amended answer is granted in part and denied in part, in accordance with the short-form order signed herewith.

Defendants' property was, until 1954, located within the unincorporated area of the Town of Oyster Bay and subject to the zoning of that township. In 1954 the Village of Muttontown, a village incorporated prior to 1938 (in 1931), and having its own Zoning Ordinance since 1932, annexed the area which included defendants' property, and zoned the annexed property, placing same in a Residence A-1 District. There is a stable located on defendants' property which was erected prior to the acquisition. Plaintiff alleges such use is not permitted in a Residence A-1 District. Defendants allege that a building permit was obtained for this stable by a predecessor in title prior to incorporation and that a certificate of occupancy was issued by the Town of Oyster Bay in 1965.

Plaintiff Village of Muttontown commenced an action in February of 1968 seeking to enjoin the defendants from keeping, maintaining, operating and using certain buildings located on defendants' eight-acre parcel (in some papers referred to as a five-acre parcel), located within the territorial limits of the Incorporated Village of Muttontown "as a stable for commercial boarding of horses, for hacking of horses or for providing commercial instruction in horseback riding in violation of the Building Zone Ordinance of the Incorporated Village of Muttontown as amended". Defendants, in their (amended) answer, raise the following substantial defenses: First, that the plaintiff village failed to comply with the requirements of the Village Law when enacting the Building Zone Ordinance, in that a zoning commission was not established nor were the necessary public hearings held; secondly, that plaintiff village does not have legal capacity to sue defendants, or zoning jurisdiction over the premises of defendants, in that section 1607 of the County Government Law of Nassau County (L. 1936, ch. 879, as amd. by L. 1937, ch. 618) provides that zoning jurisdiction of all lands not within the limits of an incorporated village having a valid zoning Ordinance on January 1, 1938 shall remain vested in the town.

The parties have stipulated as follows: (1) Section 1607 of the County Government Law of Nassau County, generally referred to as the Nassau County Charter, provides as follows: "Extension of zoning powers of towns. The powers now or hereafter conferred by law on any town or board or commission thereof with regard to the matters set forth in the preceding section shall also be exclusively exercised thereby within all portions of such town unincorporated as a village at the date on which this act becomes effective in the county, irrespective of the inclusion thereof in a village erected or incorporated after such date, and also within all territory situated in such town and in a village previously incorporated which at such date does not have a valid zoning ordinance. Such powers may also be exercised by any such town or the appropriate board or commission thereof by a two-thirds vote of such board or commission within all portions of the town within three hundred feet of any public navigable waterway, for the purpose of adopting a higher or more restrictive classification therefor." (2) The date on which said section became effective was January 1, 1938. (3) The defendants' premises were within the unincorporated area of the Town of Oyster Bay on January 1, 1938. (4) Defendants' premises were not within or included in the Incorporated Village of Muttontown on January 1, 1938. (5) Defendants' premises were not included within or incorporated into the Incorporated Village of Muttontown until August 31, 1954.

The third defense raised by defendants alleges the Village of Muttontown Ordinance to be arbitrary, capricious, discriminatory, unreasonable, without benefit to the community, etc., and, therefore, unconstitutional.

Finally, the defendants allege a valid nonconforming use, pleading the use complained of, commenced pursuant to a valid permit obtained from the Town of Oyster Bay by a predecessor in title to defendants, had been in existence for a long period of time, prior to the annexation.

There was a trial of the issues conducted before Mr. Justice Wachtler, after which the court held that, as a result of the failure of the plaintiff village to adhere to the procedural requirements of section 179-a of the Village Law, it must be held that the enactment of the Building Zone Ordinance relied upon by plaintiff is invalid. The complaint was dismissed (58 Misc. 2d 912). Mr. Justice Wachtler, in view of this dismissal, gave no consideration in his decision to the remaining points raised by the parties (including the reference to section 1607 of the County Government Law of Nassau County) and made no determination with regard thereto.

Subsequent to this decision, plaintiff located the original records of the Village of Muttontown relative to the adoption of the Zoning Ordinance (which records were not available at the trial) in the cellar of the office building occupied by general counsel for the plaintiff village. (In view of section 82 of the Village Law, the court finds this to be a rather strange locus.) These records purport to establish that a zoning ordinance was duly adopted by the Village of Muttontown on June 6, 1932 and was revised from time to time since. Plaintiff thereupon moved to set aside the decision of Mr. Justice Wachtler (which decision did not touch upon the subject matter of defendants' motion) on the basis of newly discovered evidence, i.e., missing village records. Mr. Justice Wachtler, by a short-form order on March 26, 1969, set aside his decision (58 Misc. 2d 912, supra) and directed a new trial to be held. All of which brings us to the instant action and defendants' motion for summary judgment dismissing the complaint, and plaintiff's cross motion.

Defendants contend that the issues have been refined to one, and that, a pure question of law, i.e., does the Town of Oyster Bay or the plaintiff Village of Muttontown have zoning jurisdiction over the defendants' premises? Defendants urge that section 1607 of the County Government Law of Nassau County is determinative of this question and, therefore, the issues can be decided on the pleadings and without need for a trial, or any pretrial proceedings, such as a bill of particulars, or examination before trial (which have been held in abeyance pending a determination of this motion).

Section 1607 of the Nassau County Government Law (L. 1936, ch. 879) was submitted to and adopted by the electors of Nassau County, including the voting population of plaintiff village, at the general election of 1936 and thereafter became effective as a general law January 1, 1938. There is agreement between the parties (1) that the defendants' property was not located within the territorial limits of the Incorporated Village of Muttontown at the time of the adoption of section 1607 of the County Government Law of Nassau County; and (2) that it was thereafter annexed to the Incorporated Village of Muttontown on August 31, 1954.

Plaintiff alleges that it acquired zoning jurisdiction over defendants' premises when the annexation became effective and that section 1607 of the County Government Law, as adopted and amended, does not deprive the Village of Muttontown, incorporated prior to January 1, 1938 with a valid zoning ordinance enacted prior to January 1, 1938, of such zoning jurisdiction and control over annexed property.

Defendants pinion there motion on section 1607 of the County Government Law of Nassau County, and this presents a novel question of law.

Whereas the decision rendered in Incorporated Vil. of Atlantic Beach v. Town of Hempstead (47 Misc. 2d 29, revd. 27 A.D.2d 556, affd. 19 N.Y.2d 929) upheld the constitutionality of section 1607 insofar as that section deprives villages in Nassau County incorporated after January 1, 1938 from obtaining zoning powers at the expense of the towns, said decision is not determinative of the issue herein which relates to annexation. None of the cases cited by either counsel is determinative of the specific issue raised by this motion, i.e., the applicability of section 1607 to annexed property. Research has not revealed any judicial construction of the effect, if any, of section 1607 of the County Government Law of Nassau County on zoning of ...


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