Jewish Reconstructionist Synagogue of the North Shore, Inc. v. Levitan

New York Court of Appeals

Jewish Reconstructionist Synagogue of the North Shore, Inc. v. Levitan

316 N.E.2d 339, 34 N.Y.2d 827, 359 N.Y.S.2d 55, 1974 N.Y. LEXIS 1521

CourtNew York Court of Appeals

DecidedJune 12, 1974

StatusPublished

Cited by1 cases

This text of 316 N.E.2d 339 (Jewish Reconstructionist Synagogue of the North Shore, Inc. v. Levitan) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jewish Reconstructionist Synagogue of the North Shore, Inc. v. Levitan, 316 N.E.2d 339, 34 N.Y.2d 827, 359 N.Y.S.2d 55, 1974 N.Y. LEXIS 1521 (N.Y. 1974).

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Opinion

Memorandum. Respondents’ motion to dismiss the petition raised only the issue of the power of the Board of Appeals-to grant the special permit sought by the synagogue. We agree [829]*829with the determinations below that the board had no such power or authority.

The Village Board of Trustees delegated authority to the Zoning Board of Appeals to grant special permits for religious and educational uses. That delegation, however, mandated a 100-foot side-yard setback restriction as to each such special permit. Here the synagogue requested a special permit without the side-line setback. Under the delegation the Board of Appeals had authority only to grant special permits on the conditions prescribed by the Village Board; it had no power or authority to waive or to modify any of the explicit conditions laid down by the Village Board (cf. Matter of Texas Co. v. Sinclair, 304 N. Y. 817, affg. 279 App. Div. 803; Matter of Plotinsky v. Gardner, 15 A D 2d 563; Matter of Lynch v. Gardner, 15 A D 2d 562; Matter of Board of Educ. v. Wolf, 10 A D 2d 713).

There is not presented here any issue as to the power of the Board of Appeals to grant variances under section 7-712 (formerly § 179-b) of the Village Law or otherwise. As to the distinction between a special permit and a variance (see, e.g., 2 Anderson, New York Zoning Law and Practice [2d ed.], § 18.02).

In the procedural posture in which this case comes to us we do not reach any constitutional issue. We note, however, the pendency of a related action for a declaratory judgment in which presumably all such issues will be ventilated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in memorandum.

Order affirmed, without costs.

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Memorandum. Respondents’ motion to dismiss the petition raised only the issue of the power of the Board of Appeals-to grant the special permit sought by the synagogue. We agree [829]*829with the determinations below that the board had no such power or authority.

The Village Board of Trustees delegated authority to the Zoning Board of Appeals to grant special permits for religious and educational uses. That delegation, however, mandated a 100-foot side-yard setback restriction as to each such special permit. Here the synagogue requested a special permit without the side-line setback. Under the delegation the Board of Appeals had authority only to grant special permits on the conditions prescribed by the Village Board; it had no power or authority to waive or to modify any of the explicit conditions laid down by the Village Board (cf. Matter of Texas Co. v. Sinclair, 304 N. Y. 817, affg. 279 App. Div. 803; Matter of Plotinsky v. Gardner, 15 A D 2d 563; Matter of Lynch v. Gardner, 15 A D 2d 562; Matter of Board of Educ. v. Wolf, 10 A D 2d 713).

There is not presented here any issue as to the power of the Board of Appeals to grant variances under section 7-712 (formerly § 179-b) of the Village Law or otherwise. As to the distinction between a special permit and a variance (see, e.g., 2 Anderson, New York Zoning Law and Practice [2d ed.], § 18.02).

In the procedural posture in which this case comes to us we do not reach any constitutional issue. We note, however, the pendency of a related action for a declaratory judgment in which presumably all such issues will be ventilated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in memorandum.

Order affirmed, without costs.

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316 N.E.2d 339, 34 N.Y.2d 827, 359 N.Y.S.2d 55, 1974 N.Y. LEXIS 1521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jewish-reconstructionist-synagogue-of-the-north-shore-inc-v-levitan-ny-1974.

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