Opinion
276 A.D. 514 95 N.Y.S.2d 571 ROMIG v. WELD et al. Supreme Court of New York, Fourth Department March 22, 1950
Argued Jan. 18, 1950.
Proceeding in the matter of the application of William H. Romig against Benjamin B. Weld, and others, constituting the Zoning Board of Appeals of the Town of Greece, for an order declaring section 15 of the zoning ordinance of the Town of Greece to be unconstitutional, and annulling resolution of the Zoning Board of Appeals which denied petition for a permit to erect a restaurant tavern and grill on commercial zoned property. The Monroe Special Term, Van Voorhis, J., 194 Misc. 783, 87 N.Y.S.2d 580, denied the application and petitioner appealed. The Appellate Division, per curiam, held that petitioner's relief, if any, was by proceeding under Article 78 of the Civil Practice Act in the nature of mandamus, or by an action for a declaratory judgment.
Order affirmed in part and reversed in part on the law.
Holbrooks&sHolbrook, Rochester, for petitioner-appellant, Victor Levine, Syracuse, of counsel.
William G. Easton, Rochester, for respondents.
Before TAYLOR, P. J., and McCURN, LOVE, KIMBALL, and PIPER, JJ.
PER CURIAM.
The order appealed from arose from a proceeding brought on by an order to show cause why an order should not be made declaring Section 15 of the Zoning Ordinance of the Town of Greece unconstitutional and why the resolution of the Zoning Board of Appeals of the Town of Greece, dated July 27, 1948, should not be annulled and set aside.
The petitioner had applied to the Zoning Board of Appeals for a special permit to erect a restaurant, tavern and grill, under the section.
The resolution sought to be annulled, denied the petitioner's application therefor.
Petitioner alleges that the section is unconstitutional and the determination of the Board illegal, (1), because it deprives petitioner of the property right without due process of law, (2), is illegal, invalid, arbitrary and capricious because there are no norms or standards provided for the exercise of the Board's discretion and (3), that the said section is unconstitutional and the action of the Board invalid in that the section attempts to regulate the sale and distribution of alcoholic beverages, which regulation is solely within the province of the State of New York and not delegated to the various localities.
The petition was considered by the Special Term as an application under Section 267 of the Town Law and Article 78 of the Civil Practice Act to annul the determination of the Town Zoning Board of Appeals denying application by petitioner for a special permit to erect a restaurant, tavern and grill and to compel the granting of such a permit.
The Justice at Special Term wrote [ 194 Misc. 783, 785, 87 N.Y.S.2d 580, 582]: ‘ This application is to review that ruling by the Board. It is regarded as having been brought under both § 267 of the Town Law and Article 78 of the Civil Practice Act, which co-exist except where they conflict, Matter of Caper v. Parker, 185 Misc. 948, 58 N.Y.S.2d 374, and in the latter instance § 267 of the Town Law takes precedence, Town of Greece v. Smith, 256 A.D. 886, 9 N.Y.S.2d 21, with the consequence that applications of this nature and heard in the first instance at Special Term instead of being transferred to the Appellate Division. Matter of Hopkins v. Board of Appeals, 178 Misc. 186, 191, 33 N.Y.S.2d 396, 400. Moreover, since this application must be disposed of on objections to the petition in point of law, it is, in any event, to be decided by Special Term in the first instance under § 1293 of the Civil Practice Act which is part of Article 78.’
We do not find in the record any objections raised to the petition in point of law.
The decision recites that petitioner attacks the validity of the ordinance first on the ground that there is an unlawful delegation of authority to the Zoning Board of Appeals to grant special permission for them in commercial districts and second that the town zoning ordinance conflicts with the State Alcoholic Beverage Control Law and he found neither objection sound.
On this record, we do not view petitioner's application as one to review the ruling of the Board on his special application which the Board denied.
He asks only a declaration of unconstitutionality of the section and an annulment of the determination denying his application for a special permit.
By paragraph ‘ 8’ of his petition he claims illegality because the section provides no norm or standard for the Board's guidance in the exercise of its discretion.
While the ordinance may be held unconstitutional for that reason ( Little v. Young, 274 A.D. 1005, 85 N.Y.S.2d 41, affirmed 299 N.Y. 699, 87 N.E.2d 74), we do not think that this record discloses anything which brought the question of constitutionality properly before the Court.
Even if the application was to be one considered to review a determination the papers on appeal comply with neither Section 1284, Civil Practice Act nor Section 267 of the Town Law.
In fact, the petition and the show cause order make no mention of a review and nothing to be reviewed was before the Special Term.
The petitioner makes a direct frontal attack upon the validity of the ordinance and clearly asks that it be declared unconstitutional upon his motion to do so.
We feel that he cannot in this proceeding seek to declare invalid and unconstitutional the ordinance under which he sought relief.
We think his remedy, if any, is by a proceeding under Article 78, Civil Practice Act, in the nature of mandamus or by an action for a declaratory judgment. Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642; Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 117 A.L.R. 1110; Carmody, on New York Practice, Vol. 10, pp. 355-6.
We, therefore, feel that the order, insofar as it denies the motion to declare the ordinance unconstitutional on the papers presented must be affirmed but insofar as it confirms the decision of the Zoning Board must be reversed.
Order in so far as it confirms the decision of the Zoning Board reversed on the law, and order otherwise affirmed, without costs of this appeal to any party. All concur.