Opinion
December 20, 1976
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the appellant Board of Zoning and Appeals which, after a hearing, affirmed the denial of a building permit by the town building manager, the appeal is from a judgment of the Supreme Court, Nassau County, dated July 14, 1975, which, inter alia, annulled the determination and directed the issuance of the building permit. Judgment affirmed, without costs or disbursements. The proposed group home, in a single-family residential zoning district, would house seven young people with foster parents, who would be relieved on occasion by substitute parents, pursuant to section 374-c and subdivision 17 of section 371 Soc. Serv. of the Social Services Law, and the concomitant regulations contained in 18 N.Y.CRR Part 11. The period of residency of the youngsters will be determined by their response to psychiatric treatment. Although the precise period of time the treatment will take is indeterminate, and may even be fairly lengthy, the goal of the facility is to return the youngsters to their parents as soon as possible. In City of White Plains v Ferraioli ( 34 N.Y.2d 300, revg 40 A.D.2d 1001), the Court of Appeals held that a group home is a "family", for purposes of certain zoning requirements, when it has an internal structure "akin to a traditional [biologically unitary] family, which also may be sundered by death, divorce, or emancipation of the young" (p 305) and an external appearance of "a relatively normal, stable, and permanent family unit, with which the community is properly concerned" (p 304). In our opinion, the proposed group home falls short of this test, for here the period of residence is not intended to be permanent. There would be a frequent disruption of the outward character of this "family", thereby defeating the purpose of the zoning ordinance to ensure a single-family neighborhood. Our holding in Little Neck Community Assn. v Working Organization for Retarded Children ( 52 A.D.2d 90) is not to the contrary, for that group home for retarded children was intended to be a stable environment, designed to conform to traditional family values and to be permanent in nature, where the children could develop their full potential. We affirm, however, for the reasons stated by Mr. Justice Shapiro in his dissent in the White Plains case ( 40 A.D.2d 1001, 1002-1003): "The State has taken hold of this entire problem and has pre-empted the right of any local government to make any laws inconsistent therewith (Robin v Incorporated Vil. of Hempstead, 30 N.Y.2d 347; Wholesale Laundry Bd. of Trade v City of New York, 17 A.D.2d 327, affd 12 N.Y.2d 998; Kindermann Fireproof Stor. Warehouses v City of New York, 39 A.D.2d 266)". The local zoning ordinance, which would prohibit the group home, is void as contrary to State policy (see Abbott House v Village of Tarrytown, 34 A.D.2d 821; Nowack v Department of Audit Control of State of N.Y., 72 Misc.2d 518; Matter of Unitarian Universalist Church of Cent. Nassau v Shorten, 63 Misc.2d 978, 980-981). Cohalan, Acting P.J., Rabin, Shapiro and O'Connor, JJ., concur. [ 82 Misc.2d 634.]