Setauket Development Corp. v. Romeo
| Decision Date | 05 July 1962 |
| Citation | 35 Misc.2d 501,230 N.Y.S.2d 809 |
| Parties | Application of SETAUKET DEVELOPMENT CORP., Petitioner, for an Order Pursuant to Article 78 of the Civil Practice Act v. Thomas A. ROMEO, James G. Stangby, William G. Reid, Salvatore B. Shortino, Stephen G. Jordon, Andrew Muller and Duane C. Cole, constituting the Board of Zoning Appeals of the Town of Brookhaven, Suffolk County, New York, and Edwin A. Arnzen, Town Clerk of the Town of Brookhaven, Suffolk County, New York, Respondents. |
| Court | New York Supreme Court |
Avstreih, Martino & Weiss, Mount Vernon, for petitioner, David Avstreih, Mount Vernon, of counsel.
Schmidt & Fechter, Patchogue, for respondents. Lincoln G. Schmidt, Patchogue, of counsel.
This is a proceeding brought pursuant to article 78 of the Civil Practice Act to review and annul the determination of the denial of two special use permits of the Board of Appeals of the Town of Brookhaven, the respondents herein, in accordance with Article XI-A, Section 1150, Subdivision C, of the Building Zone Ordinance of the Town of Brookhaven, for the construction, erection, operation and occupancy of an indoor theatre and for the construction, erection, operation and occupancy of a bowling alley, upon the grounds that denial by respondents of both applications is illegal, invalid, arbitrary, capricious and unreasonable, and that the recent amendment to the said Building Zone Ordinance be declared unconstitutional as confiscatory, and directing the issuance of such permits.
Prior to October 23, 1961, the said Building Zone Ordinance permitted the construction of theatres, bowling alleys and shopping centers in a 'J' Business 2 District (General Business) without authorization by Special Use Permit from respondent. In August 1961, the said Building Zone Ordinance was amended to prohibit all such bowling alleys and theatres except when authorized by special permit from the Board of Appeals, 'provided, however, that they shall not be all or part of a Commercial Center.' (Italics added.)
The operative sections of Article XI-A, 'J' Business 2 District (General Business), of said Building Zone Ordinance, as amended, reads as follows:
'In 'J' Business 2 District, no building, structure, or premises shall be used or occupied, and no building or part thereof or other structure shall be erected or altered, unless otherwise provided in this Ordinance, except for one or more of the following uses:
'A. PERMITTED PRINCIPAL USES
'1. All principal uses permitted and as regulated in 'J' Business 1 District.
'2. Shops and stores for the conducting of wholesale business, provided, however, that they shall not be all or part of a Commercial Center.
'3. Shops for custom work and for making articles to be sold at retail on the premises, provided, however, that they shall not be all or part of a Commercial Center.
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(Italics added.)
Section 100 of the said Building Zone Ordinance, as amended August 8, 1961 (Definitions), states:
(Italics added.)
It should be further noted that section 1152 of said Zoning Ordinance, since 1956 and to date, reads as follows:
'In the 'B' Business 2 District, the total building area shall not exceed fifty (50) per cent of the total lot area.'
Petitioner is the owner of a parcel of land situate on the south side of Route #25-A, New York State Highway in the unincorporated area of the Town of Brookhaven known as East Setauket, Suffolk County, consisting of an area in excess of ten (10) acres, since July 1956. Petitioner's premises, since 1956, have been continuously zoned as 'J' Business 2 District.
On May 16, 1962, petitioner made applications for two Special Use Permits pursuant to Article XI-A, Section 1150, subdivision C, for a theatre and for a bowling alley to be erected on part of the premises herein described.
On June 7, 1962, after proper notice given in accordance with Article XV, Section 1503 of the said ordinance, a public hearing was held and directly after the said hearing, on the same evening, the respondents denied the applications upon the sole ground that they are of the opinion that they do not have jurisdiction to grant the said Special Use Permits because the petitioner's property consists of ten (10) acres; thus, the petitioner's site is in excess of two (2) acres in size and the proposed bowling alley building and proposed theatre building are in excess of fifteen thousand (15,000) square feet and might become a part of a 'COMMERCIAL CENTER' which might be in violation of the said recent Zoning Amendment, Article XI-A, Section 1150, subdivision C, par. 2.
Without analyzing in detail the allegations of the petition, the court finds the following: (1) Paragraphs 'First', 'Second', 'Third' and 'Fourth' of respondents' answer to the petition are without merit. The petition is dated and verified June 9, 1962, and contains facts sufficient to support the relief demanded therein. (2) Paragraph 'Fifth' of respondents' answer admits that the petitioner is the owner of the property described in Paragraph 'First' of the petition, but incorporates new matter which is not contained in the petition, and which is controverted by petitioner's reply affidavit submitted pursuant to Sections 1292 and 1294 of the Civil Practice Act (Matter of Restivo v. Degnan, 191 Misc. 642, 646, 77 N.Y.S.2d 563, 567; Moreland v. Areson, 19 Misc.2d 385, 22 N.Y.S.2d 309) to the effect the matter contained in paragraph 'FIFTH' OF RESPONDENTS' ANSWER IS NOT GERMANE to the issue herein and should be disregarded. The said objection is well taken. Introduction of new matter in a specific denial not germane to the issues is improper. Thus, paragraph 'Fifth' of the answer must be stricken except for the admission. Moreover, it is admitted by respondents' answer that said property has always been zoned 'J' Business 2 District of the Building Zone Ordinance of the Town of Brookhaven, and that prior to October 23, 1961, the construction of theatres, bowling alleys and shopping centers was permitted without any further authorization by Special Use Permit from the respondents; petitioner filed two applications with respondents for two special use permits together with filing and advertising fees, plans, elevations, site plans indicating the required walks, curbs, parking facilities, drainage etc. to be installed for the construction, erection, operation and occupancy of a one-story concrete building to be used and operated as an indoor theatre, and filed similar papers for the use and operation of a bowling alley, both on part of the premises hereinabove described. (Par. 'Sixth', answer.)
A reading of the respondents' answer and the certified transcript of the record of the proceedings subject to review herein, held before the respondents at a public hearing on June 7, 1962, indicates that the petitioner is the owner of a parcel of land situated on the south side of Route No. 25-A, New York State Highway at East Setauket, Suffolk County, since 1956; petitioner's plans for the construction of said theatre and bowling alley were the result of many years planning, since the purchase of the property in 1956. Mr. Stangby, a member of the respondents' board to whom petitioner's application was assigned to make a report and findings to the respondents, at the public hearing before the respondents, stated on page 3 of the transcript:
'It was regularly moved by Mr. Stangby, seconded by Mr. Jordon, and carried unanimously, that this application be denied (No. 41).'
Thus, it is readily apparent that no triable issue exists as to any material fact upon which the right to the relief depends. (Matter of Glenel Realty Corp. v. Worthington, 4 A.D.2d 702, 164 N.Y.S.2d 635; Matter of De Marco v. Fitzgerald, 20 Misc.2d 457, 459, 190 N.Y.S.2d 939, 941; Matter of Guzzetta v. Carey, 14 Misc.2d 235, 236, 176 N.Y.S.2d 540; Matter of Von Kohorn v. Morrell, 9 N.Y.2d 27, 34, 210 N.Y.S.2d 525, 528, 172 N.E.2d 287.)
The crux of the petitioner's position now is a direct attack upon the validity of subdivision 10 of section 100 (COMMERCIAL CENTER) of the Building Zone Ordinance of the Town of Brookhaven as enacted on March 1, 1961, and August 8, 1961, and petitioner seeks (1) to declare it unreasonable, confliscatory, invalid, capricious, arbitrary, illegal and void in its entirety, in violation of the 14th Amendment of the Constitution of the United States and Article 1, Sections 6, 7, and 11 of the Constitution of the State of New York for reasons that it...
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Three Village Corners Shopping Center, Inc. v. Lange
...Town of Brookhaven' to be invalid and unconstitutional, in accordance with the decision of this court in Matter of Setauket Development Corp. v. Romeo, 35 Misc.2d 501, 230 N.Y.S.2d 809. The said order provides in 'ORDERED, ADJUDGED AND DECREED that Section 100, Subdivision 10 'Commercial Ce......
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Setauket Development Corp. v. Romeo
...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 ......
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Three Village Corners Shopping Center, Inc. v. Lange
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