Marsh v. Town of Huntington

39 A.D.2d 945, 333 N.Y.S.2d 990, 1972 N.Y. App. Div. LEXIS 4362

Opinion

In a proceeding pursuant to article 78 of the CPLR inter alia to compel appellant, the Town of Huntington, to issue a building permit to petitioners, the appeal is from a judgment of the Supreme Court, Suffolk County, dated May 11,1972, which directed appellant to issue such permit. Judgment reversed, on the law, without costs, and proceeding remitted to the Special Term for a hearing on the issue of fact as to whether or not appellant unreasonably and willfully delayed in issuing a building permit so as to prevent petitioners from acquiring a vested right prior to the appellant town’s amendment of its zoning regulations (Matter of Dubow v. Boss, 254 App. Div. 706). Petitioners were entitled to issuance of the permit by the town as a matter of right when they applied for it and also at the time of entry of the judgment under review. The judgment was therefore proper when made. On this record there appear to be questions of the town’s lack of good faith, hindrance and unreasonable delay, which only a hearing can resolve. Gulotta, Acting P. J., Christ, Brennan and Benjamin, JJ., concur.