Three Village Corners Shopping Center, Inc. v. Lange

• Citation: 36 Misc.2d 146,232 N.Y.S.2d 459
• Parties: Application of THREE VILLAGE CORNERS SHOPPING CENTER, INC., Assignee of Setauket Development Corp., Petitioner, for an Order under Article 78 of the Civil Practice Act, v. Emil E. LANGE, Chief Building and Zoning Inspector of the Town of Brookhaven, Patchogue, New York, and Edwin A. Arnzen, Town Clerk of the Town of Brookhaven, Patchogue, New York, Respondents.
• Decision Date: 10 September 1962
• Court: United States State Supreme Court (New York)

Page 459

232 N.Y.S.2d 459

36 Misc.2d 146

Application of THREE VILLAGE CORNERS SHOPPING CENTER, INC.,

Assignee of Setauket Development Corp.,

Petitioner, for an Order under Article

78 of the Civil Practice Act, v. Emil E. LANGE, Chief Building and Zoning Inspector of the

Town of Brookhaven, Patchogue, New York, and Edwin

A. Arnzen, Town Clerk of the Town of

Brookhaven, Patchogue, New

York, Respondents.

Supreme Court, Special Term, Queens County, Part I.

Sept. 10, 1962.

Avstreih, Martino & Weiss, Mount Vernon, for petitioner; David Avstreih, Mount Vernon, of counsel.

Schmidt & Fechter, Patchogue, for respondents; Lincoln G. Schmidt, Patchogue, of counsel.

ANTHONY M. LIVOTI, Justice.

This is a proceeding pursuant to article 78 of the Civil Practice Act for a final order directing the respondents, Emil E. Lange, Chief Building and Zoning Inspector, and/or Edwin A. Arnzen, Town Clerk of the Town of Brookhaven, to issue a permit for the erection of an indoor theatre, a bowling alley, a supermarket and miscellaneous stores for retail businesses in accordance with the plans filed with respondents on July 24, 1962, to the petitioner, as owner of realty located on the southside of New York State 25A Highway (Ridgeway Avenue) at East Setauket, Town of Brookhaven, Suffolk County, consisting of approximately ten acres, and as successor in title of Setauket Development Corp.

Heretofore, this court granted the Setauket Development Corp. a final order entered on July 9, 1962, pursuant to article 78 of the Civil Practice Act, directing the respondent Arnzen, as Town Clerk and/or Clerk of the Board of Appeals of the Town of Brookhaven, to authorize the issuance of a 'Special Use Permit' directed to the Building Department of the Town of Brookhaven for the construction, erection, operation and occupancy of an indoor theatre and bowling alley on the subject property and further declared that section 100 (definition) 'COMMERCIAL CENTER' of the 'Building Zone Ordinance of the 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 part:

'ORDERED, ADJUDGED AND DECREED that Section 100, Subdivision 10 'Commercial Center' of the Building Zone Ordinance of the Town of Brookhaven is confiscatory and it is accordingly held unconstitutional and wherever the phrase 'provided, however, that they shall not be all or part of a Commercial Center appears in Article XI and Article XI-A of the Building Zone Ordinance of the Town of Brookhaven' is deemed eliminated from said ordinance; and it is further

'ORDERED, that upon service of this order with notice of entry thereon on the Respondent EDWIN A. ARNZEN, Town Clerk of the Town of Brookhaven, and the attorney for the Respondents, the Respondent Town Clerk shall eliminate the phrase, 'provided, however, that they shall not be all or part of a Commercial Center' as appears in Article XI and Article XI-A of the Building Zone Ordinance of the Town of Brookhaven; and it is further

'ORDERED, that upon service of this order with notice of entry thereon on the Respondent, EDWIN A. ARNZEN, Town Clerk of the Town of Brookhaven, the Respondent, EDWIN A. ARNZEN, is directed to issue to the Petitioner or its assignee, two 'Special Use Permits' for the construction, erection, operation and occupancy of an indoor theatre, and for the construction, erection, operation and occupancy of a bowling alley in accordance with the plans filed with the petition.'

An examination of the respondents' return clearly indicates that petitioner's property is located in 'J' Business 2 District '(GENERAL BUSINESS)' of the 'Building Zone Ordinance of the Town of Brookhaven' and that respondents' sole refusal for the issuance of said building permits is 'because applications previously filed for two of the buildings, to wit, the theatre and bowling alley were the object of an appeal being taken from a denial of the application. In addition,...