Opinion
Supplemental Opinion March 30, 1954.
Action for declaratory judgment with respect to plaintiffs' right to the use of property in the defendant village as affected by zoning ordinance. The Supreme Court, Special Term, C. A. Johnson, J., held that the operation of plaintiff's nursery day school as a nonconforming use to a zoning ordinance did not authorize the conduct of a school as a summer day camp and that a judgment to that effect should be entered.
Judgment in accordance with the opinion.
In action for declaratory judgment with respect to plaintiffs' right to operate a nursery day school, judgment should be entered declaring that plaintiffs had a vested right to operate their premises as a nursery and primary school throughout the year, but that such right did not include the operation of the premises during the summer as a summer day camp chiefly for recreational purposes and with an extension of age limits and numbers of children largely beyond the limits in effect during the ordinary school year.
*437 Irwin R. Browner, Great Neck, for plaintiffs.
C. Ellis Schiffmacher, Great Neck, (Howard A. Rochford, Jamaica, and Jules Martin, Rosedale, of counsel), for defendants.
In this action the litigants seek a declaratory judgment with respect to the plaintiffs' right to the use of property in the defendant Village, as affected by the Village Zoning Ordinance.
The premises involved are on Old Mill Road, Village of Great Neck. A Village Zoning Ordinance adopted in 1930 included in its permitted uses a school, library or museum together with accessory uses customarily incidental thereto. Art. II, Sec. 2, 1930 Ordinance. In 1945 the ordinance was amended, and so far as pertains to this litigation the uses now include:
`Section 53.2 A church or other building used exclusively for religious purposes, parish house or parochial school.
`Section 53.3 A regularly organized institution of learning approved by the State Board of Regents and supported by public funds, a public library or public art gallery.
`Section 53.10. Accessory uses on the same lot with and customarily incidental to any of the above permitted uses.'
For some years, both prior and subsequent to 1945, there had been operated upon the premises in question, by proprietors not concerned with this litigation, a private nursery school, kindergarten and primary school. It is not contended herein that the operation of this school violated the ordinance in effect prior to 1945, and the court understands it to be common ground that the premises may continue to be used in the manner in which they were used prior to 1945, as a valid non-conforming use.
The plaintiffs became the owners of the premises and proprietors of the school in 1950, by purchase from the previous owner and proprietor. Beginning in 1951, the summer operations of the school were considerably expanded by the reception of a number of children substantially in excess of those in attendance during the regular school year and of ages considerably younger and older than those received in the school during the regular school year.
*438 The Village asserts that these operations are those of a summer day camp rather than a school, that they are in violation of the ordinance and are of a character so essentially different from the nonconforming use admittedly possessed by the premises that they must be enjoined at the instance of the Village.
At the trial evidence was received on certain disputed questions of fact, the determination of which is material to the court's decision of the litigation. The court finds that during the time this school was operated by the previous proprietor, a Mrs. Kibrig, she also operated a summer day camp at Shelter Rock, outside the Village of Great Neck; but that during the summers, both prior and subsequent to 1945, some children were received at the premises on Old Mill Road and there engaged in activities less rigorous and more recreational in nature than the activities carried on during the regular school year. In the court's opinion this was a proper use of the premises under the provision of the ordinance providing for accessory uses. The line between education and recreation is one narrow and difficult of definition; but upon all of the proof the court is satisfied that Mrs. Kibrig's use of the premises in the summer was moderate in degree, was limited principally to children who were enrolled in the school during the regular school year, was never the subject of any complaint to the Village, and was never objected to by the Village.
If the use to which the premises have been put by the plaintiffs were of the same character, the Village would be in no position to object to it. The court finds that there was never any intention to abandon such use of the premises as the owners were entitled to make. Any cessation of these uses occurring during the change of ownership was an ordinary interruption of operation consequent upon such change and no intention to abandon the use is to be found therein.
However, beginning in 1951 and increasing during 1952 and 1953, the plaintiffs expanded their operations during the summer to a considerable degree and in several respects. Although during the school year the ages of the children in attendance varied from 4 to 6 1/2 or 7, during the summers the age limit has been raised to 9 years and lowered to 2 years. The organization of the enterprise during the summer is quite different in that there is no class placement as there is during the school year. Furthermore, the enrollment during the summer is markedly greater, having attained approximately 130 in the summer of 1953, although during the regular school year it is not ordinarily above 55 or 60.
Upon all of the proof the court feels that a finding is necessary that this operation of the enterprise during the summer months constitutes a different use than that existing during the rest of the year; that the plaintiffs during the summer months are in fact operating a day camp and that the proportions which it has attained make it no longer an appropriate accessory use to the day nursery school lawfully maintained during *439 the balance of the year. As a matter of fact the plaintiffs have constantly described their enterprise as a summer day camp in their advertising and literature.
The court has not overlooked the contention that plaintiffs' summer operations differ very little from those now engaged in by public schools during the summer months. Insofar as the zoning ordinance attempts to limit school uses to publicly maintained schools or parochial schools, it is discriminatory and unenforceable as to private schools, but the court finds that the uses proved to have been engaged in by these plaintiffs during the summer constitute something more than the usual summer activities of the ordinary day school, and to that extent are in violation of the pertinent provisions of the zoning ordinance.
There remains for consideration the type of judgment to which the parties are entitled. The distinction between a school and a day camp is well recognized, Shoen v. Bowne, 273 App.Div. 1020, 79 N.Y.S.2d 292, affirmed 298 N.Y. 611, 81 N.E.2d 350; Topping v. Town Hill Houses, Sup.Ct., Suffolk County, Colden J., N.Y.L.J., Dec. 15, 1948, p. 1546, not officially reported. In this instance, however, it is particularly difficult of definition. It would seem that judgment should be entered declaring that the plaintiffs have a vested right to operate their premises as a nursery school, kindergarten and primary school throughout the year but that this right does not include the operation of the premises during the summer as a summer day camp largely and chiefly for recreational purposes and with an extension of age limits and numbers of children largely beyond the limits in effect during the ordinary school year.
The court does not regard further findings of fact as necessary, but an appropriate judgment, consistent with the findings, may be settled on notice.
Supplemental Opinion
A judgment is now presented to the Court for settlement upon the opinion filed herein on February 15, 1954.
Examination of a portion of the transcribed testimony submitted with the proposed judgment necessitates the finding that on occasions, children under four years of age have been in attendance at the school during the regular school year as well as during the summer months and the attendance of children from two and one-half to four years of age was not limited in fact to the summer sessions of 1951, 1952 and 1953. The findings contained in the decision of February 15, 1954 are amended accordingly.
The comparative numbers of children in attendance at the summer and other sessions is but one aspect of plaintiffs' operations. Plaintiffs, during summer or winter, may conduct a nursery, kindergarten and primary school to the capacity of their premises; they may not conduct a day camp at any time, be the attendance great or small. The judgment should *440 not and does not limit summer enrollment to those pupils who attend during the balance of the year.
The judgment proposed will be signed with the insertion of the word `ordinary' in the second from last line so that the phrase will read, `during the ordinary school year' and with the elimination in the last line but one of the words `there has heretofore been' and the substitution for the word `obtains' so that the last clause of the judgment will read, `or with no such proper class placement as obtains during the ordinary school year'.
Judgment signed accordingly.