Setauket Development Corp. v. Romeo
| Decision Date | 21 January 1963 |
| Citation | 237 N.Y.S.2d 516,18 A.D.2d 825 |
| Parties | In the Matter of SETAUKET DEVELOPMENT CORP., Petitioner-Respondent, v. Thomas A. ROMEO et al., constituting the Board of Zoning Appeals of the Town of Brookhaven, and Edwin A. Arnzen, Town Clerk of said Town, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Schmidt & Fechter, Patchogue, for appellants; Lincoln G. Schmidt, Patchogue, of counsel.
Avstreih, Martino & Weiss, Mount Vernon, for respondent; David Avstreih, Mount Vernon, of counsel.
Before UGHETTA, Acting P. J., and KLEINFELD, HILL, RABIN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to article 78 of the Civil Practice Act, to annul determinations of the Board of Zoning Appeals of the Town of Brookhaven which denied two separate applications by the petitioner for special use permits to erect certain buildings for theatre and bowlingalley uses, the Zoning Board and the Town Clerk appeal from an order of the Supreme Court, Queens County, dated July 6, 1962 and entered in Suffolk County on July 9, 1962 upon the opinion-decision of the court (35 Misc.2d 501, 230 N.Y.S.2d 809), which, inter alia: (a) directed the Town Clerk to issue said permits; and (b) declared a portion of the Town's relevant Building Zone Ordinance (Art, I § 100, subd. 10) to be unconstitutional.
Order reversed on the law and the facts, with costs, and petition dismissed. Findings of fact contained or implicit in the decision below (35 Misc.2d 501, 230 N.Y.S.2d 809), insofar as they may be inconsistent herewith, are reversed, and new findings are made as indicated herein.
Petitioner's property was zoned 'J Business 2'. In this category, theatres or bowling alleys could be allowed by special permit only, 'provided, however, that they shall not be all or part of a Commercial Center.' A 'Commercial Center' was denied in the local Zone Ordinance (§ 100, subd. 10) as a structure occupying a site of two or more acres, or consisting of 15,000 square feet or more in total floor area. Petitioner applied for permits for a theatre and bowling alley on a tenacre site. The proposed structure exceeded 15,000 square feet in total floor area. The application was denied by the Board of Zoning Appeals for lack of jurisdiction under the provisions of the ordinance.
In our opinion, the burden of establishing the invalidity of the ordinance was on the petitioner (Shepard v. Village of Skaneateles, 300 N.Y. 115, 89 N.E.2d 619). It is not...
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