East Clinton Developers, Inc. v. Town of Clinton

88 A.D.2d 581, 449 N.Y.S.2d 800, 1982 N.Y. App. Div. LEXIS 16746

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1982
• Status: Published

Opinion

— In an action, inter alia, to declare invalid the 1974 zoning ordinance of the Town of Clinton insofar as it applies to plaintiff’s property (the ordinance placed plaintiff’s property in a district designated “Medium Density Agricultural Residential” and precluded it from conducting a soil mining activity on its land), the defendant town appeals from an order of the Supreme Court, Dutchess County (Gurahian, J.), dated May 4, 1981, which granted plaintiff’s motion for summary judgment and declared that the zoning law was void “as having been illegally adopted”. Appeal dismissed, without costs or disbursements. The order is vacated, insofar as it granted summary judgment on plaintiff’s claim for injunctive relief. The appeal is academic in view of defendant’s enactment of a comprehensive zoning ordinance on October 13, 1981, purportedly in accordance with the provisions of article 16 of the Town Law. Said ordinance effectively supersedes the prior zoning law, adopted as Local Law No. 3 of 1974. It is well settled that an appellate court must decide a case on the basis of the zoning law as it exists on the date of its decision (Matter of Mascony Transp. & Ferry Serv. v Richmond, 49 NY2d 969, affg 71 AD2d 896; Matter of Demisay, Inc. v Petito, 31 NY2d 896; Matter of Stato v Squicciarini, 59 AD2d 718). There is no indication of undue delay or wrongful withholding of approval on the part of defendant so as to bring this matter within the “special facts exception” (Matter of Mascony Transp. & Ferry Serv. v Richmond, 71 AD2d 896, supra). Accordingly, the 1981 ordinance is the applicable law and the matter is dismissed as moot. Mollen, P. J., Titone, Thompson and Rubin, JJ., concur.