Cornell University v. Bagnardi

107 A.D.2d 398, 486 N.Y.S.2d 964, 1985 N.Y. App. Div. LEXIS 42538

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1985
• Status: Published

Opinions

OPINION OF THE COURT

Casey, J.

The City of Ithaca Zoning Ordinance is invalid insofar as it excludes the proposed expansion of an educational use by plaintiff, Cornell University, into a residential area of the city by requiring a variance for such use and conditioning the issuance of such variance upon a showing of hardship. Plaintiff is not, however, entitled to a judgment declaring totally void and ineffective the provisions of the zoning ordinance as applied to plaintiff and restraining defendants from interfering with plaintiff’s use of the subject property. The judgment of Trial Term must, therefore, be modified.

This action arises out of the proposal of plaintiff to relocate its Modern Indonesian Project from the site on campus, where the project has been located since 1955, to a large one-family residential building situated in the Cornell Heights area of the city. The subject property, purchased by plaintiff in 1965, is located on the opposite side of the Fall Creek gorge from plaintiff’s main campus, in a zone designated R-2a pursuant to the city’s zoning ordinance. Uses permitted as of right in the R-2a zone include one- and two-family dwellings, churches, public parks or playgrounds, libraries, public or parochial schools and fire stations. Certain other uses, including private schools, are allowed by special permit of the Board of Zoning Appeals. Elsewhere in the ordinance, the term school is defined as a “public, private or church-affiliated establishment academically below the college level, for the education of children and for adults in subjects or skills” (City of Ithaca Zoning Ordinance § 30.3 [78]).

The parties treated plaintiff’s proposal as not falling within any of the uses allowed in the R-2a zone as of right or by special permit. Accordingly, plaintiff applied for a variance, which the ordinance authorizes the Board of Zoning Appeals to issue where zoning restrictions impose “practical difficulties or unnecessary hardship” (City of Ithaca Zoning Ordinance § 30.58 [B] [3]). Following a hearing, the Board denied plaintiff’s application, finding no hardship and that the intrusion of nonresidential activity would be damaging to the character of the neighborhood. Instead of commencing a CPLR article 78 proceeding to challenge the Board’s determination, plaintiff brought this declaratory judgment action, claiming that the City of Ithaca Zoning Ordinance “is unconstitutional, illegal, and invalid and/ or unconstitutionally, illegally, and invalidly applied to plaintiff”. Since Trial Term concluded that there were questions of fact on the issue of the validity of the ordinance as applied to plaintiff, a trial was held. Based upon the evidence presented by the parties, Trial Term found that plaintiff had established a need to expand and that the proposed use of the subject property would not adversely affect public health, safety or welfare. These findings led Trial Term to conclude that defendants could not interfere with plaintiff’s proposed use of the property and it granted a declaratory judgment to that effect. Defendants appealed, and we granted the application of various homeowners from the Cornell Heights area of the city to intervene in the appeal.

Historically, schools in New York have enjoyed a limited immunity from municipal zoning ordinances that would otherwise exclude or circumscribe the educational uses to which they could put their property (see, 1 Anderson, New York Zoning Law and Practice §§ 11.07-11.19, at 539-56 [3d ed 1984]). Colleges and universities have received the same treatment as is generally enjoyed by other educational uses (see, Matter of Concordia Coll. Inst. v Miller, 301 NY 189; Long Is. Univ. v Tappan, 202 Misc 956, affd 281 App Div 771, affd 305 NY 893). The basis for this preferred status rests in the recognition that, while zoning ordinances must find their justification in the police power exercised in the interest of the public health, safety, morals or general welfare (Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 225; see also, Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 343), it is well established in New York that “educational uses are, by their very nature, ‘clearly in furtherance of the public morals and general welfare’ ” (Matter of Westchester Reform Temple v Brown, 22 NY2d 488, 493, quoting Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508, 526). Thus, schools are protected from the full impact of zoning restrictions because of their contribution to public welfare (see, Ginsberg v Yeshiva of Far Rockaway, 45 AD2d 334, 337, affd 36 NY2d 706). While unreasonable restrictions which have the effect of excluding educational uses from residential areas have been declared invalid (see, eg., Matter of Concordia Coll. Inst. v Miller, supra; Long Is. Univ. v Tappan, supra), “[t]hat is not to say that appropriate restrictions may never be imposed with respect to a church and school and accessory uses, nor is it to say that under no circumstances may they ever be excluded from designated areas” (Matter of Diocese of Rochester v Planning Bd., supra, p 526). With these principles in mind, we turn to the case at bar.

As noted above, the restrictions on land uses as of right and by special permit imposed by the R-2a classification in the city’s zoning ordinance, together with the definition of “school” contained in the zoning ordinance, required plaintiff to apply for a variance for the educational use to which it seeks to put its property. The record establishes plaintiff’s inability to meet the “hardship” requirement which is essential for a use variance (see, Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160, 168-170). Thus, the practical effect of the zoning ordinance is to exclude plaintiff’s educational use of its property. Insofar as the ordinance results in such an exclusion, it is unreasonable (see, New York Inst. of Technology v Ruckgaber, 65 Misc 2d 241). Furthermore, since educational use is harmonious with the public interest, conditioning such use upon a showing of hardship does not bear a substantial relation to public health, safety, morals or general welfare (see, Matter of Concordia Coll. Inst. v Miller, 301 NY 189, supra). The ordinance also has the effect of distinguishing between educational uses at or above the college level and those below the college level, excluding the former while permitting the latter. As previously noted, colleges and universities have been accorded the same treatment by the courts as other schools, and plaintiff obviously meets the judicially accepted definition of a school (see, Incorporated Vil. of Brookville v Paulgene Realty Corp., 24 Misc 2d 790, affd 14 AD2d 575, affd 11 NY2d 672; see also, Matter of Board of Coop. Educ. Servs. v Gaynor, 60 Misc 2d 316, 321 [Wachtler, J.], affd 33 AD2d 701). The distinction created by the ordinance, therefore, lacks a rational basis and does not bear a substantial relation to public health, safety, morals or general welfare. For these reasons, we declare the City of Ithaca Zoning Ordinance invalid insofar as it excludes plaintiff’s proposed expansion of an educational use into the Cornell Heights area of the city by requiring a variance for such use and conditioning the issuance of such variance upon a showing of hardship.

As discussed above, zoning ordinances must find their justification in the police power, exercised in the public interest, which is the constitutional predicate for the Legislature’s delegation of the authority to impose land use restrictions (see, Matter of Golden v Planning Bd., 30 NY2d 359, 370). We have found such justification lacking for the ordinance at issue herein insofar as it excludes plaintiff’s proposed expansion of an educational use by requiring a variance, since it has no substantial relation to the public health, safety, morals or general welfare. The infirmity in the ordinance, therefore, is of constitutional dimension (see, Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 343, supra; Berenson v Town of New Castle, 38 NY2d 102, 107), and arises out of the application of the ordinance to exclude plaintiff’s proposed educational use (see, Matter of Concordia Coll. Inst. v Miller, supra; Long Is. Univ. v Tappan, supra).

The dissent’s reliance upon Matter of Hickox v Griffin (298 NY 365) is misplaced, for no constitutional issue was raised by the parties or considered by the court. More to the point is Long Is. Univ. v Tappan (supra), the case arising out of events concerning the same property which occurred subsequent to the court’s decision in Hickox. The Town of Oyster Bay thereafter amended its zoning ordinance to allow the educational use of the property proposed by Long Island University and granted a certificate of occupancy to the university. Residents opposed to the use of the land by the university instituted a proceeding to annex to the Village of Brookville a tract of land which included the university’s property. The annexation was completed and the village amended its zoning ordinance to prevent the university’s use of its property for educational purposes. The university’s challenge to the annexation was rejected, but the amendments to the zoning ordinance were declared invalid insofar as they prohibited the use of the university’s property for the purposes for which the university was chartered (Long Is. Univ. v Tappan, supra). The same result is required here.

Next, we must determine whether, as a result of our declaring the zoning ordinance partially invalid, plaintiff is automatically entitled to its proposed educational use of the subject property. This is not a case where, but for the invalid provision, the educational use would be authorized as of right by the ordinance (see, Matter of Concordia Coll. Inst. v Miller, supra). Rather, without the distinction created by the ordinance herein, the educational use proposed by plaintiff college would fall within those uses allowed by special permit of the Board of Zoning Appeals. We conclude, therefore, that plaintiff is not entitled to the proposed educational use until it obtains a special permit.

Lastly, we must determine what, if any, further relief is appropriate. Trial Term was of the view that if plaintiff demonstrated a need to expand its educational use into the subject property, defendants could not prevent plaintiff from doing so in the absence of detriment to the public health, safety and welfare. Trial Term held a trial and, based upon its factual findings, enjoined defendants from interfering with plaintiff’s proposed educational use of the property. As determined above, however, plaintiff is not entitled to the proposed educational use of the property until it obtains a special permit and the zoning ordinance vests in the Board of Zoning Appeals the authority to issue a special permit. We conclude, therefore, that Trial Term acted prematurely and usurped the authority of the Board to determine, in the first instance, whether the proposed educational use should be permitted and, if so, whether any restrictions or conditions on the permit would be appropriate. While the Board cannot arbitrarily deny plaintiff’s application for a special permit (see, Matter of Diocese of Rochester v Planning Bd., 1 NY2d 508, supra), a denial will be upheld if the Board acts reasonably and there is substantial evidence in the record to support its determination (Matter of New York Inst. of Technology v Le Boutillier, 33 NY2d 125). In this regard, “it must be borne in mind that churches and schools occupy a different status from mere commercial enterprises” (Matter of Diocese of Rochester v Planning Bd., supra, p 523) and, while need is not ordinarily a criterion for granting a special permit, it is where, as here, an expansion of an educational use is concerned (Matter of New York Inst. of Technology v Le Boutillier, supra, p 132). Based upon this analysis, we conclude that the matter should be remitted to the Board of Zoning Appeals for the purpose of considering plaintiff’s application as one for a special permit, holding further hearings if necessary and making a determination based upon the principles articulated in Matter of New York Inst. of Technology v Le Boutillier (supra).

As a final procedural matter, we note that the Board’s determination denying plaintiff’s application for a use variance, based upon the requirement of a showing of hardship which we have declared invalid, is irrational and should be annulled. To accomplish this result, we convert the remaining portion of this action to a CPLR article 78 proceeding (CPLR 103 [c]).