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Home My WebLink About1974-10-16 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORT.L,AND . In the Matter of the Application of NIICHOLAS MAcGROD JRo D BARBARA MACROD ALFRED Wo ROHMD MARY ROHMD .,ADRIIAN ORANTD : ILESLIIE PALMER, RORERT MOORED JUDY MOORED JOHN W . EVANS and BEVERLY EVARSD Petitioners , against 4 Index No ,, 17264 JOSEPH WARCOD JRo D RICHA.RD BELILD GORDON HOYD CEORCE LAWRENCE and JLAURA VOLPIICELLIID CONST'ITU` XNC THE ZONING BOARD . OF APPEALS ef: the .TOWN OF GROTON, COUNTY OF TOMPKIINSD STATE OF NEW -YORKD` DA:NA SNEL L, as the ZONING EN FORCEMENT OFFICER for the TOWN OF CROTOND COUNTY OF TOMPKIIN'S, STATE OF NEW YORKD JOHN Co LEWIISm JUAllITA. LEW1ISD MEL,VIN Ho DROWND SHIRLEY BROWN , and LEWBRO COo D a PAARTNERSHIIPD Respondents , Cortland County Special Term October 16D 1974 ( Finally submitted December 6 , 1974) DAVIID F. LEED . JRo D Jo THEODORE , FENSTERMACHER, ESQ, (Thomas P. 'Cilhoolay, Esq. of counsel) Attorney:-- , for Petitio noz% d :- a • BENJA.M N J . BUCK®D tl SQo Attorney for Rcpp9ndents, Joseph W&rgoD Jro D Richard Bell,) . Gordon Hoy, (George Lawrence and Laura VolpicellliD Constituting the Zoning Board of Appeals of the Town of Groton and .Dan SnellD as , the Zoning Enforcem.e nt Officer for the Town of Groton WESLEY E . McDERM®TT9 ESQ , Attorney for Respondents, John C. Lewis, Juanita ILoWiSD Melvin Ho Brown, Shirley Brown and Lcwbro Co . ,, a Palr'tnership In this proceeding purouasnt to article 8 of the cCPLR . ,to ,, review the granting of as variance and a! buildinng . permit .by respondents Town' . of Groton Zoning Board of , A peals and the Zoning Enforcement effacer to respondents Melvin Ho Brown, Shirley Brown, John Co Lewis , Juanita Lewis , and Lewbro Co . D as partnership , * petitioners seek . " (a ) an order roversM6 9D 9nnulling and setting aside the . decision of the Zoning Board made on September . 4D 2 g74,o (b ) an order reversing,, annulling and setting aside the issuance of ai building permit by the Zoning Enforcement Officer to construct a ready�mix concrete and cement plant on the premises described � � tea.. (c) an order enjoining L-the respondents Melvin H. Brown, Shirley Brown,, John Co Lewis , Jiatnita Lewis and Lewbro Co. al pairtnership9 from con. structing . a ready ®mix concrete and cement plant on the premises and comma = p llixng them to restore the premises to the condition it was in prior to the ! issuance of the aforesaid building . permit a nd variance, and . (d) .. such other and further reliref. as , the , Court may deem proper and yust , in the circumstance's On May 10 , 2974 the respondents Shirley )Brown ,aged Juanita Lewis entered into a contract for the purchase of approximately 50 acres of land in the Town of Groton ,, Tom.pkis County. The property was f zoned lour intensity and agricultural " ".partially in a low intensity area and partially in - an . agricultural area" ,, 4under the Zoning Ordinance - of the Town of Groton, The Town of Groton is divided into three baud use areas . . A.griculltural, Low Intensity,, and Medium Ditensity pursuant to the Zoning Ordinance . The respondents Lewis and Brown are the owners of. the property " and became such owners or obtained their. interest in such premises on or. about July 31 , 1974118 On May . 20 . 1974 upon the application of the respondent Melvin H, Brown a construction permit, to construct a ready mix concrete pllant,, was issued by the Enforcement Officer for the Town of Groton, On September 4 . 1974 the Zoning Board of Appeals granted an application for- " a use variance to operate a ready mix cement plant on prrogerty `� � � " The affidavit of John Co Luis and Melvin Ho Brown states that they,, Johan C. Lew) .aged Melvin H. oBrowne are a partnership doing business under the %mane and style of Levnrbro Company 0 ' and further states ,, in part " 7o That in reliance upon said building permit, . your deponents comme nced construction and (aze lvation of the osite at an approximate cost of . . 4la 000e 00 . In addition, your deponents ' entered Into a contract for the ,_ disasse mblye moving and reassembly of the said batch plant to said pre miles in an amount of $50 2500 000 o ' 25 . In reliance upon the building permit issue.d ' May 109 29749 and the subsequent. variance granted by the Board of . Zoning Appeals for the Town of Groton September 69 1974D your deponents' have proceeded with the * construction and have® in addition to the $ 22D 250 . 00 invested subsequent to the issuance of the original permit of May Il09 19749 . , invested an additional $ 259 000. 00 for they construcm Lion of the building on said premises , At the date of this affidavit [October In ,, 1974 ] 9 the constr' uc� Lion is nearly complete fir . oa ld prea it es and your dcepoi nents have a total investment z6f $409 250 . 00 invested in the various aspects of preparation of the site fog .: uBe in accordance with the original construction permit and the subsequent variance. 01 The petitioners , neighboring property owners, urge several grounds upon which they seek the relief asset forth in - the' petition, e. g. that the application for building permit, dated May 6n 1974, made by Melvin H; Brown described him and John C. L.ewia as- the owners of the premises ; that the building permit was issued " in violation of the Zoning Orden* nce which provides in Section 602 , 421hat industrial and m.anu* fa,cturing establishments are to be ,located in medium intensity areas " . that- at the time of ublication on August 7 of the public bearing on August 199 1974 no . application for a. variance had been filed with any Town official. gaud no application for 0, variance eras rec.eived by any Town official until September 49 2974; that the public hearing was for " a use �raria�ac � for the co�n�t �°ucttioxn of a ready=maw concrete and cement in the a sexnc6 of an application for a variances for the pre= mibeso that the Planning Board did not review the Master Plan to determine if the variance was, in conformity 7ith the objectives of the Madter Plan as required by section IGO2 of the Zoning Ordinance * that the Zoning Board without conducting a hearing and without making fiandigng appr-lived the. granting of the variants to respondents Br '- and Lewis that the Zoning Bpardy of Appeals was without jurisdiction to gragnt the . application petitioners Were denied clueprocess and fair hearing as to the appladala ' n which was grasnted on September 49 ' 1974a Counsel representing the respondents Lewis and Brown has sub = - " Knitted a copy of an amendment .to the Town of Groton Zoning Ordinance, A. special meeting of the Town Board of the Town . of Groton was held on November 13D 2974 at which the IBoarda after a public hearing. adopted a " zones change to the Zoning Ordinance: of the Town of Groton" . Counsel in his letter, with reference to the copy pf the amendment submitted, states ° [Aln amendment to the . Town of Groton Zoning Ordinance [was ] passed by the Groton ' Toga Board in the early pare of November and published in the Groton paper on November 29, thereby making the change effective in accordance with Town Law on November 290 The amendment to the Ordinance' has the effect of resoniang the area in issue to medium intensity. - thereby permitting the operktioRn of a ready= ml concrete busI ness `in the area, 6. "Although I felt from the beginning that the res0 ponds nts had acted properly throughout, I[ believe that this change now makes the matter before 'the Court moot in accordance .with Gordon v. Plonski, 9 N.0 Yo 2d 866 x" It ip, noted that the .. court , in - Matter of Daub v. Board - of Regents ( 33 A. D 2d 9640 965 ) , cited and quoted in Matter of Gold v. Lomenzo ` 29 N Y 2d 4699 475) , statedo "where a subsequently occurring event operates to destroy the finality of a determination orto make the question involved merely academic or abstract , it may be given con sider°atiorn in deciding whether such determination shall be reviewed at all (Metter of Weeks , 97 App. Div. 232 ,# 24 Carmody�W&it 2d, New York P.r cti �eD § 445o346 ) , " Under the circuanstancos demonstrated the questions presented are moot and the proceeding is academic . Th, proceeding should be dismissed, without costs . Judgment may be .entered accordingly, Dated, January 27, 1975 . r ST CE OF THE SSTPR CO T Duplicate original of decision forwarded to Cortland County ClerkL with pleadings and affidavits , SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORTLAND In the Matter of the Application of NICHOLAS MAGRO,_ JR . , BARBARA MAGRO , ALFRED W . ROHM , MARY ROHM , ADR - 'N GRANT , LESLIE PALMER, ROBERT MOORE , JUDY MOORE , JOHN W . EVANS and BEVERLY E V ANS , Petitioners , - against - Index No . 17284 JOSEPH WARGO, JR , , RICHARD BELL, GORDON HOY , GEORGE LAWRENCE and LAURA. VOLPICELLI, CONSTITUTING THE ZONING BOARD OF APPEALS of the TOWN OF GROTON , COUNTY OF TOMPKINS , STATE OF NEW YORK, DANA SNELL, as the ZONING ENFORCEMENT OFFICER for the TOWN OF GROTON , COUNTY OF TOMPKINS ., STATE. OF NEW YORK , JOHN C . LEWIS, JUANITA LEWIS , MELVIN H. BROWN , SHIRLEY BROWN , and LEWBRO CO . , a PARTNERSHIP, Respondents , - - - - - - - - - - - - - - - - - - - - - - - - - D E C I S I O N SUPREME COURT CHAMBERS NORWICH , NEW YORK DAVID F. LEE. JR. , JUSTICE