Opinion
November 27, 1961
In an action by three taxpayers pursuant to statute (Town Law, § 268, subd. 2), to enjoin the violation of certain provisions of the Zoning Ordinance of the Town of Ramapo, the plaintiffs appeal from a judgment of the Supreme Court, Rockland County, rendered December 20, 1958 upon the decision of an Official Referee, after a nonjury trial before him, dismissing the complaint on the merits. Judgment reversed on the law and the facts, with costs; and judgment granted in favor of the plaintiffs, with costs, enjoining the defendants from violating and from continuing to violate the Zoning Ordinance in the following respects: (1) by their use of power in excess of 20 horsepower, in connection with the operation or maintenance of their cold-storage plant; (2) by their employment of more than one person in the cold-storage structure; and (3) by their storage of goods which are not "farm produce." Findings of fact contained in the Referee's decision which are inconsistent herewith, are reversed; and new findings are made as indicated herein. The Referee dismissed the complaint for failure of the plaintiffs to prove an allegation of the complaint that a letter, dated December 13, 1954, complaining of the alleged violations was delivered to town authorities. A copy of the letter was attached to the complaint, but plaintiffs neglected to offer proof of delivery. The learned Referee held that under subdivision 2 of section 268 Town of the Town Law, such failure of proof required dismissal of the complaint. The statute (Town Law, § 268, subd. 2) provides that an action may be instituted by three resident taxpayers to restrain zoning violations, upon failure of town authorities to take appropriate action within 10 days after written request. It was alleged in the complaint, and there is ample proof in the record, that written requests for appropriate action were delivered to the town authorities on September 17, 1952, October 2, 1952 and October 10, 1952. In addition, it was alleged and proved that on October 14, 1952, written application was made to the Zoning Board of Appeals to review the Building Inspector's failure to find that the alleged violations existed. The town authorities took no action prior to the institution of this lawsuit, in which the complaint was verified on January 2, 1955. Thus, there was compliance with the statute, despite the failure to prove delivery of the letter of December 13, 1954. The proof clearly established, and we find, that defendants violated the Zoning Ordinance of the Town of Ramapo in the following respects: (1) by their use of power in excess of 20 horsepower, in connection with the operation or maintenance of their cold-storage plant; (2) by their employment of more than one person in the cold-storage structure; and (3) by their storage of goods which are not "farm produce." Nolan, P.J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.