Opinion
March 21, 1966
Proceeding pursuant to article 78 of the CPLR to review and to annul a determination of the respondent Zoning Board of Appeals which granted a special permit to construct a Masonic Temple in the Town of Ramapo. By order of the Supreme Court, Rockland County, entered September 15, 1965, the proceeding was transferred to this court for disposition. Determination confirmed, with costs. It was within the power of the board to hold, on the findings made, that the proposed Temple was within the scope of one of the uses set forth in the Zoning Ordinance of the Town of Ramapo (Table of General Use Regulations, Column 3 as referable to District R-35) for which a special permit may be granted for the property in question, namely, "Neighborhood or community centers serving primarily local residents."
The special permit was granted by the Zoning Board of Appeals under the terms of the Town Zoning Ordinance reading as follows: "On a reference by the Building Inspector after application to the Building Inspector for a building permit or a certificate of occupancy, the Board of Appeals is hereby authorized to issue a Special Permit for any use listed in Use Table Col. 3 subject to the Additional Requirements and conditions therein (or in Col. 8)." In an R-35 district, in which lies the property for which the special permit was issued, the Zoning Board of Appeals may grant a special permit for "Neighborhood or community centers serving primarily local residents; such as golf courses, tennis, swimming clubs, community theatres on plots of not less than five (5) acres." The special permit was granted to the Ramapo Masonic Association, a fraternal organization, upon certain findings of fact by the Zoning Board of Appeals, which allegedly support its "opinion" that "a Masonic Temple is a neighborhood or community center within the meaning of * * * [the] zoning ordinance." In our opinion, the board was without power to so conclude. The Zoning Board of Appeals may not enlarge the powers delegated to it by the ordinance; under the guise of "Neighborhood or community centers serving primarily local residents", it may not permit a use fundamentally at variance with the purpose and function of the activities thereby authorized (cf. Matter of Schroeder v. Kreuter, 206 Misc. 198, affd. 284 App. Div. 972, affd. 308 N.Y. 993; Matter of Hartnett v. Segur, 21 A.D.2d 132.) Thus, it is irrelevant whether the proposed use may be considered no more objectionable than, or as compatible with, the uses specifically allowed by special permit. Indeed, the question of the application of the ordinance is primarily one of law to be determined by the courts rather than by the Zoning Board of Appeals ( Matter of Westchester County S.P.C.A. v. Mengel, 292 N.Y. 121, 126; Matter of Faith for Today v. Murdock, 11 A.D.2d 718, affd. 9 N.Y.2d 761). There is no room for the exercise of discretion by the Zoning Board of Appeals in the interpretation of the language of the ordinance under scrutiny. In our view, it is the intent and purpose of the ordinance that a neighborhood or community center, as stated, serve "primarily local residents", as a building or premises designed to satisfy the social and recreational needs of the locality. We think that such a definition necessarily excludes a fraternal organization which does not provide for membership from the community, is not under community control, and is governed by the constitution and by-laws of an outside body unrelated to the neighborhood (cf. Benevolent Orders Law, § 2). The fraternal organization is essentially a corporation serving primarily private interests, and with facilities not available to the public; the ordinance describes an organization serving primarily public interests, and with facilities available to the public (cf. Dunkirk Aerie, Order of Eagles v. City of Dunkirk, 274 App. Div. 685, 689; Gilbert v. Town of Hamden, 135 Conn. 630). We think that the terms of the ordinance, thus opposed to the aims and structure of the corporation seeking the special permit, did not authorize the granting of the relief sought.