14 Misc. 2d 826 | N.Y. Sup. Ct. | 1958
In this proceeding, brought pursuant to article 78 of the Civil Practice Act, petitioner seeks an order annulling an amendment to the zoning ordinance of the Town of Islip adopted by respondents regulating house trailer parks; annulling a determination made by respondents denying petitioner’s application for a permit to operate a house trailer park, and directing issuance of the permit.
Petitioner’s application was filed on November 18, 1957. On December 4, 1957 respondents caused to be published notice of a public hearing to be held on December 17, 1957 to consider an amendment to the zoning ordinance regulating operation of house trailer parks, the purpose of which was to materially increase the minimum area and front footage requirement for each lot in a proposed trailer camp park. On January 9, 1958 respondents adopted the amendment. A hearing on petitioner’s application was held on January 30, 1958, and on March 6, 1958 a resolution was adopted denying the application. It is apparent that the application was denied for a failure of the application to meet the requirements of the zoning ordinance as amended on January 9,1958.
Petitioner challenges the validity of the amendment on the ground that as adopted it materially varied from the amendment proposed to be adopted as set forth in the notice of public hearing thereon dated November 19, 1957; that the procedure followed in adopting the amendment is violative of the statutory requirements of the Town Law in that the notice of public hearing failed to contain the words “ and Related Statutes ”; and that an existing zoning ordinance may only be amended by another ordinance. It is the further contention of petitioner that the requirements of the zoning ordinance in effect at the time of filing an application establish a right in petitioner to a permit and that an amendment thereto adopted subsequent to the filing of the application is inoperative insofar as such application is concerned.
There is left for disposition petitioner’s claim that a permit must issue if the application therefor meets with the requirements of the ordinance in effect on the date of the submission of the application and that a denial thereof, based upon a failure to meet the requirements of an amending ordinance subsequently adopted, is arbitrary, capricious and unreasonable.
Application for a permit made prior to the date of the adoption of an amendment to the zoning ordinance prohibiting or restricting a use permitted on the date of making the application does not vest the applicant with a right to the issuance of a permit for the use allowed prior to the amendment or restriction. The law is now well settled that even the issuance of a permit does not vest the holder with a right to a use permitted at the time of issuance and thereafter prohibited by amendment of the ordinance unless the permit was unlawfully withheld or unreasonably delayed in issuance so as to permit adoption of the prohibiting amendment. A vested right may be acquired by a permittee where construction has progressed substantially or where such extensive expenditures have been made that to prohibit the use under the permit would inflict an irreparable harm to the permittee. None of these factors is present herein. The amendment to the ordinance was in procedure at the time the application was made and, since the permit was not issued, it must be inferred that no construction was commenced. For the reasons stated the petition is dismissed on the merits.
In light of the determination herein, it is not necessary to dispose of respondents’ motion directed to the petition. In passing, however, it may be stated that the motion was not