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September 21, 1972

Bruce BORAAS et al., Plaintiffs,
VILLAGE OF BELLE TERRE et al., Defendants

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING


DOOLING, District Judge.

 The present action was instituted by Edwin and Judith Dickman, husband and wife, as owners and lessors of a six bedroom one family dwelling located at the intersection of Harbor View Road and Cliff Road in the Village of Belle Terre, and three tenants or occupants of the dwelling. Plaintiff Michael Truman is a twenty-five year old graduate student and teaching assistant at the State University of New York at Stony Brook, who is now in his fourth year of graduate study leading to a doctorate in sociology. He leased the Dickman house from the owners on or about December 1, 1971, for a term ending May 31, 1973 at the rent of $500 a month. Plaintiff Bruce Boraas is twenty-four years old, in his third year of graduate study at the State University at Stony Brook, and is working toward a doctorate in sociology and holds a research assistantship. Plaintiff Anne Parish is twenty-three years old and is a third year undergraduate student at the State University at Stony Brook for the academic year which commences at September of 1972. The defendants are the Village of Belle Terre, an incorporated village, and a municipality under the laws of New York, in Suffolk County, and the Deputy Mayor and the Trustees of the village. The natural person defendants are sued in their official capacities only.

 For purposes of the present motion there has not been any direct denial of the principal factual allegations of the complaint, and in general they, with the affidavits submitted on both sides, must be taken at this stage as substantially setting forth the conditions with respect to occupancy of the Dickman house. Plaintiff Boraas has been a resident in the house since about June 1, 1972, and has become a co-signer of an apparently new lease on the same lease terms as that originally signed by plaintiff Truman. He expects to continue as a tenant until May 1973. Plaintiff Parish has not signed a lease, but a check of hers was tendered and accepted in payment of the rent for July 1972. She has been in occupancy since about June 1, 1972, and expects to continue in the house until the end of the term. Three additional students at Stony Brook are now, or have been until very recently, occupants but not lessees of the house: Franklin Beckman, a graduate student in the fifth year of a sociology doctorate program, who was also a teaching assistant; Michael Miranda who is a graduate student in sociology at Stony Brook but who may not continue in the house; and Leonard Cassara an undergraduate student at Stony Brook who planned to leave the house on or before September 1, 1972.

 Each of the students occupies a separate bedroom in the house. The rent is apportioned among them, dinner is a common meal, household and yard-keeping chores are distributed among the occupants, and expenses for groceries, newspapers, telephone, utilities, fuel oil and milk are paid from a common treasury to which all contribute. For present purposes, it is not denied that the plaintiff students are living and cooking together as a single housekeeping unit. They are not related to one another by blood, adoption or marriage. What they have in common is that all are students at the State University at Stony Brook, and, in the case of four of the occupants, they have a common interest in prosecuting studies in sociology as graduate students.

 The zoning ordinance of Belle Terre establishes a single district, the "A" Residence District, the boundary of which is identical with the village boundaries. The ordinance provides that no building or premise shall be used and no building in future erected or altered in the village except for use as a one-family dwelling, for a public purpose area owned and operated by Belle Terre, or for accessory buildings (such as a private garage) used incidentally to a dwelling. The ordinance also provides that the lot area of each one-family dwelling shall be at least one acre with a frontage of 200 feet at the building line, residence buildings to be 60 feet back from the street, side yards to be not less than 35 feet on each side, the rear yards to be 90 feet deep.

 The critically important part of the ordinance for present purposes is that part which defines "One Family Dwelling" and "Family." Section D-1.34a defines a one-family dwelling as a detached house consisting of or intended to be used as a residence by one family only as a family is defined in the ordinance, and the Section provides that in no case is a "lodging house, boarding house, fraternity house, sorority house or multiple dwelling" to be classified or construed as a "one-family" building. Section D-1.35a defines "Family" as "one or more persons related by blood, adoption or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants." The Section provides further that a number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption or marriage shall be deemed to constitute a family.

 In early June 1972, the plaintiffs applied for beach privileges and were denied them on the ground that their residence in the village was illegal and that papers were being prepared against them and their landlord. In mid-July a summons to appear before the Village Justice at the Community Center in Belle Terre was issued on a complaint that the plaintiffs Dickman were leasing, renting or otherwise permitting their premises to be used other than as a one-family dwelling. Later that summons was withdrawn when it was realized that no order to remedy the alleged violation had been issued, served and disobeyed. Under date of July 28th an order to remedy violation was issued to the plaintiffs Dickman, advising them that there existed a violation of Article 3 of the Village Code in that premises were used other than as a one-family dwelling, and the plaintiffs Dickman were directed and ordered to comply with the law and remedy the conditions above mentioned on or before August 3, 1972. The order concluded that failure to remedy the conditions and to comply with the law might constitute an offense punishable by fine, imprisonment or both.

 Article 4 Section B-1.12a of the Village Ordinance provides that whenever a building inspector finds a condition in violation of the ordinance he is empowered and authorized and duty-bound to order in writing the remedying of such condition in such manner and within such time as he may specify, and the order must then be served upon the owner, occupant or authorized agent by mail. Under Section B-1.13a failure to correct a condition within 48 hours after receiving the order to do so is deemed a violation of the ordinance, each day constituting a distinct violation. In addition, "any appropriate action or proceeding may be instituted . . . to restrain, correct or abate any violation, or to prevent the occupancy of any such building . . . or to prevent any illegal act . . . or use in or about such building . . .". Article 8 of the zoning ordinance, in Section N-1.4a, provides that in cases where premises are used in violation of the ordinance any appropriate action or proceeding by legal process or otherwise may be instituted or taken to prevent an unlawful use and to restrain, correct or abate any violative use. The Section also provides that each violation of the zoning ordinance constitutes disorderly conduct, and that those responsible for or implicated in a violation of the zoning ordinance shall be disorderly persons and shall be liable for and pay a penalty not exceeding a hundred dollars or be imprisoned for a period not exceeding 60 days, or both. A separate and distinct offense is deemed committed on each day during or on which a violation occurs or continues.

 Plaintiffs seek a preliminary and permanent injunction against the institution of criminal or civil proceedings against them to enforce the ordinance in so far as it prohibits residential occupancy by more than two persons not related by blood, adoption or marriage, and against the taking of any other steps intended to or having the effect of enforcing the zoning ordinance, including withholding normal residential privileges, such as beach privileges. The action also seeks a declaration that the building zone ordinance is unconstitutional.

 Plaintiffs charge that enforcement of the ordinance against them denies them equal protection of the law, denies them the right of association secured to them by the First and Fourteenth Amendments, intrudes upon the sphere of privacy secured to plaintiffs by the constitution and contravenes their right to travel.

 The Dickman house is about seven or eight miles from the State University at Stony Brook. Each of the plaintiffs asserts that he or she looked for rental opportunities in the vicinity of Stony Brook and found that "except for University dormitory accommodations, the only rental situations which I could afford were shared residences like the Dickman house. Apartment rentals, when available, were too expensive."

 It appears without contradiction that there are at the State University at Stony Brook twenty-seven dormitory buildings located on campus which can accommodate approximately 6,200 students. The accommodations range from single and double rooms to suites which accommodate four to six students in each suite. The supply of on-campus housing facilities so far exceeds the demand that it has been reported that two of the dormitory buildings will not be open for the academic year 1972-1973. The cost of on-campus housing appears to be around $650 a year for each student, which would appear to be less than the amount apportionable to each student in the Dickman house.

 Belle Terre has a population of about 700 persons and there are 220 homes in the village, all of which are one-family dwellings. There are two houses directly opposite the Dickman house, both of which have previously been rented, one house a four-bedroom house is reported to rent for $350 a month furnished, ...

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