Since 1974 the appellants Exxon Corporation (Exxon) and Mobil Oil Corporation
(Mobil) have operated self-service gasoline stations in the respondent, the Town of North Hempstead (the town). Mobil operates a "full self-service" station at which customers dispense gasoline under the general supervision of a station attendant. Exxon operates a "partial self-service" station which provides separate dispensing islands for service by either a station attendant or a customer. At the more common "full service" stations the attendants dispense all the gasoline. Special Term's opinion explains the salient differences between "full service" and "self-service" gasoline stations (Town of North Hempstead v. Exxon Corp., 98 Misc.2d 194, 196-197, 413 N.Y.S.2d 562):
"Relatively recent merchandising innovations in the retail sale of gasoline, adopted by Mobil, Exxon and most major oil companies, have included the development and installation of dispensing units designed and intended to be used and operated by the retail customer who is invited to purchase gasoline, using his own labors in the dispensing process, usually at a cost per gallon which is less than that customarily charged to reflect the labors of the station owner, operator or employee.
"In an operation of the latter kind, as conducted by Mobil and Exxon generally, 'full service' is offered the customer at the dispenser; which is to say that the dispensing hose is removed from its position on the island unit and the pump activated by the station attendant, who depresses a lever to energize the pump, inserts the hose nozzle into the fill pipe opening and then applies manual pressure to the trigger mechanism of the hose handle to start the flow of gasoline. The need to apply constant pressure is obviated by a latch device on the handle which may be applied to the trigger to maintain a selected rate of flow and free the attendant to perform other tasks. Overfilling is prevented by the design of the handle/nozzle unit in that pressure from within the fill pipe or other receptacle will release the latch and trigger to stop all flow when the tank has reached or approached a point of full capacity.
"By contrast, the self-service gasoline dispensing unit, whether at a totally self-service station or at a hybrid facility that offers the customer a choice of full-service or self-service, requires that an attendant within the sales booth or service building on the premises first activate a console or module control to supply energy to the unit selected by the customer. The attendant's act of authorization then permits the customer to dispense gasoline in the customary fashion albeit that the self-service handle importantly lacks the latch-open device and necessitates constant manual pressure upon the trigger to maintain the flow of gasoline. Flow will automatically cease when the level within the tank or fill pipe reaches the nozzle, as in the case of the full-service nozzle mechanism, or when the preselected quantity or monetary limit of the sale fixed by the purchaser and registered by the attendant upon the interior control device is attained. At that point, the pump supplying the dispensing unit becomes deactivated, and power is restored only through reactivation of the dispensing unit by the attendant's manipulation of the control console or module."
Section 3.6(d) of the Nassau County Fire Prevention Ordinance permits self-service stations and imposes certain safety requirements:
"(i) Gasoline, self-service dispensing units shall only be permitted at outdoor, above-grade locations.
"(ii) A trained attendant shall be on duty at the control panel whenever the station is open for business, and shall observe, supervise, and control dispensing operations.
"(iii) Smoking shall be prohibited in the dispensing area and signs reading 'No Smoking-Stop Your Motor' shall be conspicuously posted at the dispensing island, in clear view of the motorist.
"(iv) Dispensing operations shall not be permitted until the engine of the vehicle being serviced is shut off
"(v) Only portable containers listed by a nationally recognized testing laboratory shall be filled by gasoline dispensing units.
"(vi) Emergency power control switches shall be clearly identified, and shall be capable of disconnecting power to all dispensing units. They shall be located at least twenty (20) feet from the nearest dispenser, but not more than fifty (50) feet from the most remote dispenser. The attendant shall be in a location whereby all dispensing units are clearly visible.
"(vii) Only dispensing nozzles of the self-closing type shall be permitted for self-service dispensing devices. There shall be no latch-open device on any self-service dispensing nozzle.
"(viii) Plans for the installation of self-service gasoline dispensing installations shall be submitted to the Fire Marshal for approval prior to commencement of installation.
"(ix) Dispensing devices that are in compliance with standards set by the Underwriters' Laboratories, Inc., or Factory Mutual Engineering Division, shall be deemed acceptable.
"(x) The number and type of fire extinguishers shall be provided as indicated on plans submitted to the Fire Marshal as required by paragraph (viii) above, and located in the vicinity of the emergency controls.
"(xi) An approved audible intercommunication system shall be required between the attendant and the dispensing area, and shall be maintained in proper operating condition."
Code 30 of the National Fire Protection Association also prescribes safety measures at self-service gasoline stations:
"7643. All self-service stations shall have at least one attendant on duty while the station is open to the public. The attendant's primary function shall be to supervise, observe and control the dispensing of Class I liquids while such liquids are actually being dispensed.
"7644. It shall be the responsibility of the attendant to (1) prevent the dispensing of Class I liquids into portable containers not in compliance with 7620; (2) to control sources of ignition; (3) immediately handle spills and fire extinguishers, if needed. Attendant or supervisor on duty shall be mentally and physically capable of performing the functions and assuming the responsibilities prescribed in this section."
Exxon's and Mobil's compliance with all of the above safety measures is undisputed.
On April 27, 1976 the Town Board of the Town of North Hempstead, after a public hearing and "in furtherance of (the) public health, safety and welfare", enacted Local Law No. 1-1976 which, in pertinent part, provides:
"Section 29-19 Dispensing of gasoline, motor fuels or other flammable liquids
"The installation and use of coin operated, self-service or customer-operated dispensing pumps at gasoline service stations or automobile service stations is prohibited. Motor fuels, lubricants or other flammable materials may only be sold, dispensed or pumps operated by the station owner, operator or qualified employee of the same."
The town commenced an action to enjoin Exxon from operating its self-service station (Action No. 1). Exxon interposed a counterclaim admitting the operation of a self-service station and seeking a judgment declaring Local Law No. 1-1976 unconstitutional and enjoining the town from enforcing it.
Mobil brought Action No. 2 to declare the ordinance invalid. The town moved to dismiss the complaint on the grounds of collateral estoppel and failure to state a cause of action. Special Term treated the motion as one for summary...
