Opinion
October 6, 1980
In an action to declare article VA of the Code of the Town of Islip unconstitutional insofar as it applies to plaintiffs' property (consisting of two lots owned by plaintiff Michael Welt and one lot owned by plaintiff Elizabeth Welt), for a permanent injunction and to review a determination of the Town Board of the Town of Islip denying the application of plaintiff Elizabeth Welt for a special permit, plaintiffs appeal from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County, entered February 21, 1980, as, upon granting relief to Elizabeth Welt on plaintiffs' motion for summary judgment on the first cause of action (for declaratory relief and a permanent injunction), denied similar relief to plaintiff Michael Welt. Order and judgment reversed insofar as appealed from, on the law, with $50 costs and disbursements, the provisions denying the motion as to Michael Welt are deleted therefrom, summary judgment on the first cause of action is granted as to the lots owned by Michael Welt and the ordinance is declared unconstitutional with respect to those lots. Special Term's reasons for granting summary judgment to Elizabeth Welt with respect to her lot, No. 30, were equally applicable to Michael Welt's lots, Nos. 28 and 29. The ordinance permitted erection only of an elevated pedestrian dune crossing or an approved fence. The ordinance was confiscatory and unconstitutional as to Lots Nos. 28 and 29, as well as to Lot No. 30. (See Matter of Grimpel Assoc. v. Cohalan, 41 N.Y.2d 431; Matter of Lemp v. Town Bd. of Town of Islip, 90 Misc.2d 360.) The ordinance's special permit provision did not change that fact because the ordinance misuses the concept of a special permit exception. (See Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238.) Under the circumstances, Michael Welt was not required to apply for such a permit prior to bringing suit. (See Matter of Grimpel Assoc. v. Cohalan, supra.) Damiani, J.P., Gibbons, Gulotta and Weinstein, JJ., concur.