Gardiner v. Lo Grande

• Decision Date: 28 February 1983
• Citation: 459 N.Y.S.2d 804,92 A.D.2d 611
• Parties: In the Matter of Robert D.L. GARDINER, Respondent, v. Michael A. LO GRANDE, Supervisor, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 804

459 N.Y.S.2d 804

92 A.D.2d 611

In the Matter of Robert D.L. GARDINER, Respondent, v. Michael A. LO GRANDE, Supervisor, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Feb. 28, 1983.

William R. Bennett, Town Atty., Islip (Richard P. DeBragga, Islip, of counsel), for appellants.

Adolph H. Siegel, Lindenhurst, for respondent.

Before TITONE, J.P., and BROWN, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Islip which denied petitioner's application for a special permit, the appeal, as limited by the appellants' brief, is from a judgment of the Supreme Court, Suffolk County, dated January 22, 1982, which, upon remittal invalidated an amendment to the town zoning ordinance and granted the instant petition for a special permit.

Judgment affirmed, without costs or disbursements.

In 1979 the petitioner, the owner of an enclosed shopping mall in the Town of Islip, sought a special permit to establish a game room inside the mall. The town board summarily denied the application and petitioner commenced the instant CPLR article 78 proceeding to review its determination. During the pendency of the proceeding, and after Special Term had reserved decision on the matter, the town board, without informing Special Term, amended the zoning ordinance so as to exclude "game rooms" from the list of uses permitted by special permit. Thereafter Special Term confirmed the town board's determination and dismissed the proceeding. Petitioner appealed to this court.

In Matter of Gardiner v. Lo Grande, 83 A.D.2d 614, 441 N.Y.S.2d 288, this court remitted the instant matter to Special Term for a hearing to determine,inter alia, whether the amendment to the town zoning ordinance had been properly enacted. That amendment defined a game room as a hall containing six or more "pinball machines, electronic video-screen games, football games, air hockey games, skeebowls or any other similar games or machines for the use of which fees are paid directly into the machine or to an operator."

Our remittal of the matter was also made for the purpose of determining whether "special facts" exist which would entitle petitioner to receive the special permit, notwithstanding the amendment of the zoning ordinance (assuming such amendment to have been properly made) (see Matter of our Lady of Good Counsel R.C. Church & School v. Ball, 38 N.Y.2d 780, 381 N.Y.S.2d 866, 345 N.E.2d 338, affg. 45 A.D.2d 66, 356 N.Y.S.2d 641 on the opn. of MARTUSCELLO, J., at the App.Div.). On remittal Special Term interpreted this court's order as excluding any finding of the existence of "special facts" and accordingly ruled only on the issue of whether the enactment of the amendment was proper. The only issue presented on this appeal is whether the amendment was properly enacted.

On remittal, Special Term held that the two published notices of public hearing preceding adoption of the amendment were sufficiently ambiguous to invalidate the amendment.

One notice (hereinafter referred to as the short notice) provided in pertinent part as follows:

"The amendment includes a new combined definition of assembly hall and social recreation center now called assembly and social recreation hall, and (2) new definitions of game room and game center based on the number of pinball machines and similar machines.

"Game centers will be permitted as an accessory use in Business 3, Industrial 1 and Industrial 2 Districts."

The other notice (hereinafter referred to as the long notice) excluded "game rooms" from the definitions of "assembly hall" and "social...