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Marshall v. Village of Wappingers Falls

Appellate Division of the Supreme Court of New York, Second Department
May 8, 1967
28 A.D.2d 542 (N.Y. App. Div. 1967)

Summary

In Wappingers Falls, there were no permitted uses as of right in the "Planned Residential District" but twelve uses were available through a special permit.

Summary of this case from Town of Rhine v. Bizzell

Opinion

May 8, 1967


Order of the Supreme Court, Orange County, dated May 6, 1966 and entered in Dutchess County May 10, 1966, modified on the law by striking therefrom the provision denying plaintiff's request for summary judgment and by substituting therefor a provision granting plaintiff summary judgment and directing judgment in favor of plaintiff declaring that the Comprehensive Zoning Ordinance of the Village of Wappingers Falls, insofar as it establishes a PR — Planned Residential District, is invalid and void. As so modified, order affirmed insofar as appealed from, with $10 costs and disbursements to plaintiff, and matter remitted to the Special Term for the entry of a judgment in accordance herewith. No questions of fact have been considered. Defendant Village's zoning ordinance establishes 10 zoning districts. In one district, the PR — Planned Residential District, there are no principal permitted uses as of right whatever. Twelve uses are permitted upon issuance of special permits by the Board of Appeals. Section 37-11 (subd. E, par. [1] of the ordinance authorizes that board "to issue a special permit for any use for which this ordinance requires the obtaining of such permits from the Board of Appeals, subject to applicable regulations of this ordinance." In our opinion, the action of the Village Board of Trustees in establishing the Planned Residential District was unauthorized by the Village Law (art. VI-A). That action was not zoning in accordance with a comprehensive plan but rather was a device to permit, in effect, lot-by-lot zoning (cf. Rockhill v. Town of Chesterfield, 23 N.J. 117; Anderson, New York Zoning, § 8.27). Moreover, we are of the opinion that subdivision E(1) of section 37-11 of the ordinance, insofar as it authorizes the Board of Appeals to issue special permits for uses in a Planned Residential District, is invalid in that it constitutes a delegation to an administrative body of legislative power vested in the Board of Trustees, without prescribing any standard or rule by which action by that administrative body is to be governed ( Matter of Davison v. Flanagan, 273 App. Div. 870). The provision of the ordinance here involved does not contain the standards "stated in general terms" found to be sufficient in Matter of Aloe v. Dassler ( 278 App. Div. 975, affd. 303 N.Y. 878) (cf. Matter of Ehret v. Bates, 18 A.D.2d 938). In view of the foregoing, we do not reach the question of the constitutionality of chapter 836 of the Laws of 1965, legalizing and validating the acts of the Board of Trustees in relation to the adoption of the ordinance. Ughetta, Acting P.J., Brennan, Rabin, Benjamin and Munder, JJ., concur.


Summaries of

Marshall v. Village of Wappingers Falls

Appellate Division of the Supreme Court of New York, Second Department
May 8, 1967
28 A.D.2d 542 (N.Y. App. Div. 1967)

In Wappingers Falls, there were no permitted uses as of right in the "Planned Residential District" but twelve uses were available through a special permit.

Summary of this case from Town of Rhine v. Bizzell

In Wappingers Falls the zoning ordinance established a "Planned Residential District" in which there were no principal permitted uses as of right but 12 uses were authorized by special permit, to be issued by the board of appeals "subject to applicable regulations of this ordinance".

Summary of this case from Dur-Bar Realty v. Utica

In Wappingers Falls, in contrast, it does not appear that the land in the challenged district was in any way unusual in topography or location so as to justify the subjection of all use proposals to case by case decision.

Summary of this case from Dur-Bar Realty v. Utica
Case details for

Marshall v. Village of Wappingers Falls

Case Details

Full title:RAYMOND J. MARSHALL, Respondent-Appellant, v. VILLAGE OF WAPPINGERS FALLS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 8, 1967

Citations

28 A.D.2d 542 (N.Y. App. Div. 1967)

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Dur-Bar Realty v. Utica

Here the ordinance is comprehensive indeed, containing detailed use provisions and a carefully drawn map…

Town of Rhine v. Bizzell

¶ 45. In its analysis, the Dur-Bar Realty court contrasted the "flood plain" ordinance in that case with the…