| Nemeth v K-Tooling |
| 2012 NY Slip Op 08186 [100 AD3d 1271] |
| November 29, 2012 |
| Appellate Division, Third Department |
| Joseph Nemeth et al., Appellants, v K-Tooling et al.,Respondents. (Action No. 1.) Valerie Garcia, Appellant, v K-Tooling et al., Respondents.(Action No. 2.) |
—[*1] Pope & Schrader, LLC, Binghamton (Alan J. Pope of counsel), for respondents.
McCarthy, J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredAugust 13, 2010 in Delaware County, upon a decision of the court in favor of defendants.[*2]
Defendants operate manufacturing businesses from aresidentially-zoned property in the Village of Hancock, Delaware County. The property includesa separate building in the rear of the property and a brick building near the street that containsliving quarters on the second floor and manufacturing space in the first floor and basement, withan addition to the basement constructed in 2001.
Plaintiff Valerie Garcia purchased a home on an adjacent parcel in 2002. In early 2004,plaintiffs Joseph Nemeth and Donna Nemeth purchased a vacation home on the other side ofdefendants' parcel. The Nemeths commenced action No. 1 against two defendants alleging thatthe noises and odor created by their manufacturing operations constituted a private nuisance, andseeking to enjoin an alleged violation of the Village of Hancock Zoning Law. Garcia commencedaction No. 2 against all three defendants essentially seeking the same relief.[FN*]Following a bench trial, Supreme Court dismissed the actions. Plaintiffs appeal.
Supreme Court did not err in dismissing the private nuisance cause of action. Following abench trial, this Court has the power to grant any judgment warranted by the facts, taking intoaccount the trial court's advantage of seeing the witnesses (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Matter of Sunburst Assoc., Inc., 93AD3d 1045, 1047 [2012]). Private nuisance is established by proof of intentional action orinaction that substantially and unreasonably interferes with other people's use and enjoyment oftheir property (see Doin v ChamplainBluffs Dev. Corp., 68 AD3d 1605, 1611-1612 [2009], lv dismissed 14 NY3d832 [2010]). Plaintiffs and two neighbors testified regarding the offensive odors and loud noisescoming from defendants' manufacturing processes at all hours seven days a week. The neighborsalso testified that essentially no noises could be heard in the winter, when the doors are closed.
While it is clear that plaintiffs find the noise and odor emanating from defendants' propertyoffensive and annoying, defendants submitted contrary evidence not only from themselves, theirowners or employees, but also from objective sources. The village health officer, who conductedan investigation after plaintiffs complained to the Village Board, testified and submitted hisreport finding that "[t]he sound of machinery was minimal," "[t]he smell was minimal and notoffensive," and the noise and odor from defendants' property was overshadowed by those oftraffic on the street. The village engineer, who is also a certified code enforcement officer,investigated at the request of the Village and concluded that the noise was not a discernableproblem. An industrial hygienist from the Department of Labor concluded that noise emissionsinside the buildings were acceptable and the decibel level outside of the buildings [*3]where the manufacturing occurred did not rise above that of anormal conversation. Defendants also submitted a video walk-through of the manufacturingoperation, which Supreme Court found was similar to that experienced during the court's tour ofthe facility. The court noted that, despite the residential zoning, this was a mixed-use street wheremultiple businesses were operating prior to plaintiffs' purchase of their parcels. Considering all ofthis evidence, the record supports the determination that any interference with plaintiffs' propertydue to defendants' manufacturing operations did not rise to the level of being "substantial innature" and "unreasonable in character" to a person of ordinary sensibilities (Copart Indus. vConsolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; see Balunas v Town of Owego, 56AD3d 1097, 1098 [2008], lv denied 12 NY3d 703 [2009]; Chenango, Inc. vCounty of Chenango, 256 AD2d 793, 794 [1998]). Thus, the court properly dismissed thenuisance cause of action.
Contrary to plaintiffs' assertion, Supreme Court did not hold that plaintiffs lack standing tochallenge the alleged zoning violation. Plaintiffs have standing because they are owners ofproperty adjacent to the property where defendants operated their manufacturing businesses, andplaintiffs alleged and offered proof that the operation of those businesses in violation of thezoning law caused them harm by affecting the use and enjoyment of their property (seeMatter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69NY2d 406, 413-414 [1987]). The obligation of village officials to enforce zoning ordinances "'does not prevent a private property owner who suffers special damages from maintaining anaction' " seeking "to enjoin the continuance of the violation and obtain damages" to vindicate "adiscrete, separate identifiable interest of his [or her] own" (Little Joseph Realty v Town ofBabylon, 41 NY2d 738, 741-742 [1977], quoting Marcus v Village of Mamaroneck,283 NY 325, 333 [1940]; see Manuli v Hildenbrandt, 144 AD2d 789, 790 [1988]). Caselaw has been unclear, however, as to whether "special damages" are an aspect ofstanding—which may presumptively be satisfied by proof of close proximity and assertionof an interest within the "zone of interest" of the regulation—or are, separate and apartfrom standing, an element of the cause of action alleging a violation of zoning laws (compareMatter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69NY2d at 409-410, 413-414, Zupa vParadise Point Assn., Inc., 22 AD3d 843, 843-844 [2005], with Marlowe v Elmwood, Inc., 12AD3d 742, 744-745 [2004], lv dismissed 4 NY3d 881 [2005], Futerfas vShultis, 209 AD2d 761, 762-763 [1994]). Although one of our recent cases referred tospecial damages as an "element," almost all of the precedent cited in that discussion addressedthe topic in the context of standing, and the result of dismissal of the cause of action would havebeen the same in that case regardless of whether it was based on proof addressing standing or anelement on the merits (Marlowe v Elmwood, Inc., 12 AD3d at 744-745). Despite someambiguous language in several cases that may imply that special damages are a separate elementof the cause of action (see id.; Kartagener v Grando, 251 AD2d 461, 462 [1998];Hitchings v Village of Sylvan Beach, 221 AD2d 926, 927 [1995]), we now clarify thatspecial damages are not an element, but are relevant to standing in this context (see Allen vGeneral Elec. Co., 2003 NY Slip Op 51345[U], *9 n 1 [Sup Ct, Monroe County 2003]).
With standing having been established, we now address the merits of the zoning [*4]violation cause of action. "[W]hen a continuing use [of property]flies in the face of a valid zoning restriction, it must . . . be enjoinedunconditionally" (Little Joseph Realty v Town of Babylon, 41 NY2d at 745). If the courtsallowed a defendant who has been shown to have violated a zoning ordinance to continue theunlawful use, it would be tantamount to the courts "usurp[ing] the legislative function" bestowedupon a village board and rezoning the land (id.). The zoning law at issue here providesthat a use of any land or building that was lawful at the time the zoning law was enacted may becontinued even though such use may not comply with the new law (see Village ofHancock Zoning Law §§ 115-14, 115-7). One limitation to nonconforming usesprovides that "[a] building or use shall not be added to or enlarged unless such nonconformingbuilding or use is made to conform to the regulations of the district in which it is located"(Village of Hancock Zoning Law § 115-14 [A]).
Defendant Kuehn Manufacturing Company began operating in the brick building on thepremises in 1971. In 1983, the Village enacted its first zoning law, which placed the parties'properties in an R1 residential district that does not permit manufacturing (see Village ofHancock Zoning Law § 115-28; compare Village of Hancock Zoning Law §115-32). Defendants' manufacturing operations were, therefore, a nonconforming use. The recordis unclear as to exactly when the rear building was erected, but defendant Perry Kuehn and hisfather, Ray Kuehn, the owner of Kuehn Manufacturing, testified that the rear building was builtin the early 1980s and has been used for business purposes since that time. Without evidence thatit was built after 1983, plaintiffs failed to prove that the erection of the rear building, for whichthe Kuehns testified that they obtained a building permit, violated the zoning law. Nor can we saythat the activities conducted in that building at the present time constitute an enlargement of thenonconforming use (see Village of Hancock Zoning Law § 115-14 [A]). Similarly,plaintiffs did not prove that defendants violated the zoning law when they continued themanufacturing operations in the same character as the business had been operated as anonconforming use, but enhanced the volume by purchasing more modern and automatedmachinery and increasing their product output, number of employees, hours of operation andgross income (see People v Perkins, 282 NY 329, 330 [1940]; Incorporated Vil. ofLaurel Hollow v Owen, 247 AD2d 585, 586 [1998]; Matter of Tartan Oil Corp. v Boardof Zoning Appeals of Town of Brookhaven, 213 AD2d 486, 487-488 [1995]).
On the other hand, in 2001, defendants built an addition, measuring between 800 and 1,000square feet, to the brick building. This addition was intended for and actually used formanufacturing purposes. Although they apparently obtained a building permit from the Village,issuance of "such a permit cannot confer rights in contravention of the zoning laws" (City ofBuffalo v Roadway Tr. Co., 303 NY 453, 463 [1952]; see Marcus v Village ofMamaroneck, 283 NY at 330). Construction of this addition violated the provision that anonconforming building or use not be added to or enlarged unless made to conform to theresidential district where it was located (see Village of Hancock Zoning Law §115-14 [A]). Accordingly, plaintiffs were entitled to an injunction prohibiting defendants fromusing the addition to the brick building on their property for any nonresidential purposes.Although plaintiffs also seek damages through this cause of action, they have not proven anypersonal injury or decrease in value to their property as [*5]aresult of the zoning violation. Thus, plaintiffs are entitled to an injunction but no damages on thiscause of action.
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the order is modified, on thelaw and the facts, without costs, by reversing so much thereof as dismissed plaintiffs' cause ofaction to enjoin defendants' violation of the Village of Hancock Zoning Law; defendants areenjoined from using the addition to the brick building on their property for any nonresidentialpurposes; and, as so modified, affirmed.
Footnote *: Garcia's husband was also anamed plaintiff, but Supreme Court permitted the action to proceed without a substitutionfollowing his death (see CPLR 1015 [b]). Garcia also alleged a cause of action forintentional infliction of emotional distress, but that was dismissed at trial and is not at issue onappeal.