Levien v. Board of Zoning and Appeals of Incorporated Village of Russell Gardens, 64 Misc.2d 40, 313 N.Y.S.2d 909 (N.Y.Sup., Sep 04, 1970)

Supreme Court, Nassau County, New York,Special Term, Part I.
In the Matter of Philip J. LEVIEN et al., Petitioners,v.The BOARD OF ZONING AND APPEALS OF the INCORPORATED VILLAGE OF RUSSELL GARDENSet al., Resp'ts.

Sept. 4, 1970.

 A motion was made to dismiss Article 78 proceeding relating to challenge to issuance of building permit.  The Supreme Court, Special Term, Bernard S. Meyer, J., held that where village zoning ordinance provided that no building should be erected or altered until building inspector issued permit certifying that proposed building or altered building and use complied with ordinance, Board of Appeals had jurisdiction to pass on determination of building inspector that commercial building permit complied with zoning ordinance, since zoning ordinance provision requiring approval of building permit by board of trustees, which might be reviewable only in Article 78 proceeding, was not applicable to commercial building.
 Motion denied.

West Headnotes
[1] Certiorari  6073k60 Most Cited Cases
[1] Certiorari  6273k62 Most Cited Cases
In an Article 78 proceeding, respondent who has objection in point of law has option of raising it either by motion to dismiss before answer or by setting it forth in answer, and when he seeks to have court pass upon not only his objections but also the merits of proceeding as disclosed by pleadings, papers and admissions, he has but to incorporate objections in his answer and court will, if it does not dismiss on the basis of objections, consider papers in same fashion as it would on motion for summary judgment and set matter for trial only if it concludes that there is a triable issue of fact.  CPLR 409(b), 3211(c), 7801 et seq., 7804(a, d, h).
[2] Certiorari  6073k60 Most Cited Cases
In passing upon motion to dismiss Article 78 proceeding court considered only petition and exhibits annexed to it and matters which must or might be judicially noticed where respondents' counsel misconceived applicability of summary judgment rule to an Article 78 proceeding and placed in supporting affidavits much of the pleading and evidence which should have gone into answer and return.  CPLR 409(b), 3211(c), 7801 et seq.
[3] Zoning and Planning  441414k441 Most Cited Cases
Where village zoning ordinance provided that no building should be erected or altered until building inspector issued permit certifying that proposed building or altered building and use complied with ordinance, Board of Appeals had jurisdiction to pass on determination of building inspector that commercial building permit complied with zoning ordinance, since zoning ordinance provision requiring approval of building permit by board of trustees, whose decision might be reviewable only in Article 78 proceeding, was not applicable to commercial buildings.  Village Law §  179-b;  CPLR 7801 et seq.
[4] Zoning and Planning  440.1414k440.1 Most Cited Cases (Formerly 414k440)
Where village zoning ordinance made building inspector's approval of application or plan a condition precedent to consideration by board of trustees and board was required to issue permit if satisfied there was a full compliance with building code, trustees passed on compliance only with the building code which was wholly separate from zoning ordinance and their having done so did not relieve Board of Appeals of obligation of reviewing building inspector's determination that there was compliance with zoning ordinance.
[5] Zoning and Planning  442414k442 Most Cited Cases
Allegations that petitioners inquired of village clerk for rules of Board of Appeals fixing time within which to appeal and were told that there were none and that the failure to file rules precluded board from relying thereon were sufficient, if proved, to raise question as to whether appeal from issuance of building permit was timely.
[6] Zoning and Planning  590414k590 Most Cited Cases
Allegations of petitioners that they owned property immediately abutting property for which commercial building permit was issued sufficiently pleaded petitioners' right to maintain proceeding challenging issuance of permit. Village Law §  179-b;  CPLR 7804(f). **911 *41 Dreyer & Traub, New York City, for petitioners; by Samuel Kirschenbaum, New York City.
 Irving Levine, New York City, for respondents.

MEMORANDUM
 BERNARD S. MEYER, Justice.
 [1][2] The papers on this motion to dismiss an Article 78 proceeding are somewhat confused because respondents' counsel has misconceived the applicability to such a proceeding of CPLR 3211(c) and put into his supporting affidavits much of the pleading and evidence that should have gone into an answer and return.  An Article 78 proceeding is a special proceeding, CPLR 7804(a), intended to be summarily decided 'upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,' CPLR 409(b), and to be tried forthwith if a triable issue is raised, CPLR 7804(h).  A respondent who has an objection in point of law is given the option of raising it either by motion to dismiss before answer or by setting it forth in his answer.  When he seeks to have the court pass not only upon his objections but also upon the merits of the proceeding as disclosed by the pleadings, papers and admissions, he has but to incorporate the objections in his answer, and the court will if it does not *42 dismiss on the basis of the objetions, then consider the papers, pursuant to CPLR 409(b), in the same fashion as it would on a motion for summary judgment, and will set the matter for trial only if it concludes that there is a triable issue of fact. To hold CPLR 3211(c) applicable and sanction the procedure here attempted by respondents would be to ignore the existence of CPLR 409(b) and to deprive petitioners of the right given them by CPLR 7804(d) to reply to new matter in the answer or dispute the accuracy of the return.  The court will, therefore, in passing upon the motion to dismiss consider only the petition and exhibits annexed to it and matters which must or may be judicially noticed.
 On the basis of such consideration it is clear that the petition is sufficient, notwithstanding respondents' contentions that (1) a Board of Appeals has no jurisdiction to pass upon a permit issued by the Board of Trustees, (2) the appeal was not timely and (3) petitioners are not persons aggrieved.
 **912 [3] On the jurisdiction point respondents rely upon Matter of Katz v. Board of Appeals, 21 A.D.2d 693, 250 N.Y.S.2d 469, which held that a Village Board of Trustees is not an 'administrative official' within the meaning of Village Law s 179--b, and that its act in issuing a permit, though administrative in nature, could be reviewed only in an Article 78 proceeding.  The record in that case shows that it involved a special exception permit, but it is not necessary to determine whether that is a sufficient basis to distinguish the present case, which concerns simply a building permit, for there is another basis for distinction.  The permit issued in the Katz case was issued by the Trustees pursuant to the Village Zoning Ordinance.  In the instant case Article VI, Section 10 of Ordinance No. 11 (Zoning Ordinance) of the Village of Russell Gardens provides that 'No building shall be erected or altered * * * until The Building Inspector shall issue a permit certifying that the proposed building or the proposed altered building and the use complies in every respect with this ordinance * * *' (emphasis supplied).  While Article III, Section 10 of the Zoning Ordinance requires approval of a building permit by the Board of Trustees, its provisions are not applicable to a commercial building such as is the subject of the permit in this case.
 [4] Nor is the Board of Appeals deprived of jurisdiction to review the Building Inspector's determination under Article VI, Section 10 of the Zoning Ordinance by the provisions of Article I, Section 4 of Ordinance 15 (the Building Code).  In the first place under the latter section of the Building Inspector's approval of the application or plan is a condition precedent to consideration by *43 the Board of Trustees and the Building Inspector must sign the permit.  More importantly, subd. 1 of Section 4 makes clear that if 'the Board of Trustees be satisfied that there is full compliance With the provisions of this Ordinance, the Board of Trustees Shall promptly Issue a permit therefor' (emphasis supplied).  Thus, the Trustees pass only upon compliance with the Building Code, an enactment wholly separate from the Zoning Ordinance, see Matter of Rosenstein v. Curran, 21 A.D.2d 802, 250 N.Y.S.2d 699; Matter of Village of Is. Park v. Bulk Plants, 258 App.Div. 185, 15 N.Y.S.2d 968; Matter of Cassety (Dobson), 255 App.Div. 928, 8 N.Y.S.2d 740, and their having done so does not relieve the Board of Appeals of its obligation under Village Law s 179--b of reviewing the Building Inspector's determination that there was compliance with the Zoning Ordinance.  Paragraph 9 of the Petition pleads that the Building Inspector (erroneously designated Commissioner) in approving the plans acted contrary to the authority granted him and, thus, sufficiently raises the point.
 [5] The question of timeliness arises because the permit was issued March 17, 1970 and the appeal was filed on May 27, 1970.  The petition alleges that the petitioners inquired of the Village Clerk for Rules of the Board of Appeals fixing the time to appeal and were told that **913 there were none (  10, 11) and that the failure to file Rules precludes respondents reliance upon them ( 16).  Those allegations are sufficient, if proved, since Village Law s 179--b requires that every rule of the Board 'shall immediately be filed in the office of the board and with the Village Clerk and shall be a public record.' Moreover, the Board's decision, which is annexed as an exhibit to the petition, indicates that it computed the time to appeal from the issuance of the permit, whereas Matter of Pansa v. Damiano, 14 N.Y.2d 356, 251 N.Y.S.2d 665, 200 N.E.2d 563 and Matter of Highway Displays, Inc. v. Zoning Board of Appeals, 32 A.D.2d 668, 300 N.Y.S.2d 605, hold that the time to appeal of a property owner who has not received actual notice of the issuance of a permit runs not from the issuance of the permit but from the time he reasonably became chargeable with notice of its issuance, provided there has been no element of undue delay or laches.
 [6] On the issue of petitioners' standing to appeal, the petition ( 15) alleges that they own property immediately abutting the property for which the permit was issued.  Whatever the ultimate determination may be on the fact question whether petitioners' property was adversely affected, that allegation sufficiently pleads petitioners' right under the sixth unnumbered paragraph of Village Law s 179--b to maintain the proceeding.  Of course, in so ruling the court does not pass *44 upon whether the Board's finding that petitioners were not entitled to appeal, because not persons aggrieved within the meaning of the second unnumbered paragraph of the Section, was supported by substantial evidence, that not being an issue for consideration on this motion to dismiss.
 A short form order has accordingly been signed denying the motion and directingthat the matter proceed as in CPLR 7804(f) provided.  In reaching its decision the court has not considered the letter of August 7, 1970 from respondents' counsel or the letter of August 10, 1970 from petitioners' counsel, both of which were submitted without permission.
313 N.Y.S.2d 909, 64 Misc.2d 40
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