Opinion
2002-08014
Argued May 13, 2003.
August 25, 2003.
In a proceeding pursuant to CPLR article 78(1) to review a determination of the Board of Trustees of the Village of Westbury dated May 2, 2002, which denied the petitioner's application for a special use permit, and a determination of the Board of Zoning Appeals of the Village of Westbury dated April 15, 2002, which denied the petitioner's application for a use variance, and (2) to invalidate Local Laws 10-2000 and 4-2001 of the Village of Westbury, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Mahon, J.), dated July 23, 2002, which denied the petition and dismissed the proceeding.
Thomas V. Pantelis, Mineola, N.Y., for appellant.
Kraemer Mulligan, Westbury, N.Y. (Dwight D. Kraemer of counsel), for respondents.
Before: A. GAIL PRUDENTI, P.J., DAVID S. RITTER, MYRIAM J. ALTMAN, BARRY A. COZIER, JJ.
DECISION, ORDER JUDGMENT
ORDERED that the proceeding, insofar as it seeks to invalidate Local Laws 10-2000 and 4-2001 of the Village of Westbury, is converted to an action for declaratory judgment, and the notice of petition and petition are, to that extent, deemed to be a summons and complaint ( see CPLR 103[c]); and it is further,
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted, and the determinations dated May 2, 2002, and April 15, 2002, are annulled; and it is further,
ADJUDGED and DECLARED that Local Law 10-2000 and Local Law 4-2001 of the Village of Westbury are invalid.
On November 2, 2000, the Board of Trustees of the Village of Westbury (hereinafter the Board) passed Local Law 10-2000 of the Village of Westbury (hereinafter Local Law 10-2000). One of the provisions of this local law declared that, subject to an exception not applicable here, it would be "unlawful" to operate a business between the hours of 11:00 P.M. and 6:00 A.M. of the following day on land zoned for any business, industrial, or residential parking district that either abuts, or is within 100 feet of, any land zoned for residential or apartment use. The petitioner's property is located in a business district.
On September 20, 2001, the Board passed Local Law 4-2001 of the Village of Westbury (hereinafter Local Law 4-2001), which contains a provision that is essentially identical to the one referred to above. This local law also contains a provision that specifies that a violation of the prohibition against the operation of businesses between 11:00 P.M. and 6:00 A.M. would constitute a misdemeanor, and would expose the violator to "a fine not to exceed $1,000 or to imprisonment not to exceed 15 days, or to both such fine and such imprisonment."
Local Law 10-2000 also contains a provision, left unchanged by the enactment of Local Law 4-2001, according to which a special permit would be required in order to operate any business or industrial use between the hours of 11:00 P.M. and 6:00 A.M., even when such business or industrial uses are located more than 100 feet from any land zoned for residential or apartment use.
The petitioner, Westbury Trombo, Inc. (hereinafter Trombo), proposes to operate a business that would be "unlawful" in accordance with the provisions noted above, in that its business would be located on property that abuts a residential district and would operate between the hours of 11:00 P.M. and 6:00 A.M. In its petition Trombo alleged, among other things, that the provisions quoted above are unconstitutional and otherwise invalid. Trombo relied on the case of Louhal Props. v. Strada ( 191 Misc.2d 746, affd 307 A.D.2d 1029 [decided herewith]), in which the Supreme Court (Winslow, J.), in an order dated March 28, 2002, found in favor of the petitioner in an analogous case, and enjoined the enforcement of Local Laws 10-2000 and 4-2001 of the Village of Westbury.
In the judgment under review, the Supreme Court denied the petition and dismissed Trombo's proceeding. The court stated, among other things, "the respondent Village is not precluded from enacting general legislation applicable to the operation of business," and that "the zoning ordinance challenged here relates directly to the petitioner's use of its property and the effect it has on neighboring properties."
Assuming, without deciding, that Village Law § 7-700 authorized the Board to enact a local law prohibiting a restaurant or "fast food" business from operating within its jurisdiction, or subjecting such a business to an otherwise inapplicable requirement that it obtain a special use permit or variance, based solely on the fact that the business would operate between the hours of 11:00 P.M. and 6:00 A.M. ( but see Framike Realty Corp. v. Hinck, 220 A.D.2d 501, 502 ; Matter of Old Country Burgers Co. v. Town Bd. of Town of Oyster Bay, 160 A.D.2d 805, 806; Matter of Summit School v. Neugent, 82 A.D.2d 463, 466-467; De Zena v. Gulde, 24 A.D.2d 165; Matter of Schlosser v. Michaelis, 18 A.D.2d 940), the exercise of such power must be supported, at the very least, by evidence showing that the "atmosphere of the surrounding area" would be adversely affected by the presence of such an overnight business ( St. Onge v. Donovan, 71 N.Y.2d 507, 518). Because "generalized * * * concerns of the neighboring community * * * uncorroborated by any empirical data" are not probative of any such potential detriment ( Matter of Framike Realty Corp. v. Hinck, 220 A.D.2d 501, supra at 502 ), and the petitioner's property rights should not be impaired based on the "whims of an articulate minority * * * of the community" ( Matter of St. Onge v. Donovan, 71 N.Y.2d 507, supra at 518), and because the record in this case does not otherwise contain sufficient evidence in this respect, the local laws under review should not be upheld as a valid exercise of the Board's powers under Village Law § 7-700.
The local laws under review in this case likewise may not be upheld as an exercise of the Board's general police powers ( see Matter of Belle Harbor Realty v. Kerr, 35 N.Y.2d 507; cf. Matter of Taylor Tree v. Planning Bd. of Town of Montgomery, 272 A.D.2d 336; Town Bd. of Town of Southhampton v. 1320 Entertainment, 236 A.D.2d 387). There is insufficient evidence to support the conclusion that the existence of a retail business that operates 24 hours a day in the vicinity of a residential area has any detrimental impact on the health, safety, welfare, or morals of the community.
The present appeal should not be dismissed as moot because of the enactment, during the pendency of this appeal, of Local Law 4-2003 of the Village of Westbury. This new local law repeals, in whole or in part, the local laws that were challenged in this proceeding, but it replaces those local laws with provisions that, in substance, place the same limitations on the hours during which the petitioner herein may conduct its proposed business. While somewhat different in scope, this new local law, on its face, may suffer from the same basic infirmity as the prior ones, and under these circumstances, the mootness doctrine should not be applied ( cf. Bergstol v. Town of Monroe, 305 A.D.2d 349 [2d Dept, May 5, 2003]; Bergstol v. Town of Monroe, 296 A.D.2d 431). However, we do not deem it appropriate, in the circumstances of this case, to pass on the validity of the new law in the absence of any proceeding or action addressed to the validity of such law.
PRUDENTI, P.J., RITTER, ALTMAN and COZIER, JJ., concur.