Opinion
May 10, 1957
Schiffmacher Williams Rochford for petitioners.
James L. Dowsey, Jr., for respondent.
This proceeding under article 78 of the Civil Practice Act, seeks an order requiring respondent to enforce the stay provided for by subdivision 4 of section 267 Town of the Town Law.
Respondent is the manager of the Building Department of the Town of North Hempstead and heretofore, he issued a building permit to Saddle Rock Estates Land Co., Inc., for the erection of a swimming pool. This permitee is not a party to this proceeding. Petitioners are neighboring land owners who filed an appeal from the determination of respondent pursuant to the applicable provisions of the Town Law as persons aggrieved.
Subdivision 4 of section 267 Town of the Town Law, applicable here, provides as follows: "An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of appeals, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay, would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of appeals or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown."
Apparently no certificate has been filed by respondent so that the court is concerned with only the first clause of the section.
As I interpret this section as applicable here, it is meant that the status quo is to be maintained pending the appeal. In this instance, I interpret that to mean that pending the determination of the appeal the issuance of the building permit by respondent is stayed and nothing else.
It, then, becames a question of what Saddle Rock Estates Land Co., Inc., can or cannot do with its property in the absence of such building permit. For instance, it has been argued in this proceeding that grading of property is permissible by a property owner without any permit under the ordinances of the Town of North Hempstead.
If the action presently being taken by Saddle Rock violates any existing ordinance of the Town of North Hempstead and respondent or any other officer charged with the duty of enforcing such ordinance fails or refuses to institute the proper proceeding, a remedy is provided for petitioners by subdivision 2 of section 268 Town of the Town Law. This section makes it clear that the relief they seek, i.e., to mandamus respondent to "stay" Saddle Rock, is not available to them under subdivision 4 of section 267 Town of the Town Law.
Accordingly, the petition is dismissed and the temporary stay contained in the order to show cause is vacated.
Settle order.