Opinion
08-017181.
December 22, 2008.
MICHAEL J. KAPER ESQ., ATTORNEY FOR THE PETITIONERS, BABYLON, NY.
JOHN J. LEO, ESQ., ATTORNEY FOR THE RESPONDENTS, HUNTINGTON, NY.
The Petitioners, by Notice of Petition and Petition dated May 2, 2008, have made application to this Court for an Order annulling, vacating and setting aside the Respondent's decision dated March 24, 2008, and determining that §§ 198-134 through 198-148 are unconstitutional pursuant to CPLR Article 78. The Respondent has submitted a Verified Answer dated August 19, 2008; an Affirmation in Opposition dated August 19, 2008 and a Record of the Proceedings filed with the Court on August 21, 2008. The Petitioner submitted a Reply Affirmation dated September 5, 2008.
By Order dated December 2, 2008, the Hon. Jeffrey Spinner recused himself from the case and the matter was reassigned to the undersigned on December 10, 2008.
DECISION
The Petitioners' predecessor in interest was granted a permit to construct and maintain an accessory apartment in 1992 by the Town of Huntington Accessory Apartment Review Board. The permit was transferred to Petitioners on February 2, 1998. By a decision dated March 24, 2008 the Respondent, Nitkewicz, in his capacity as "Hearing Officer for the Town of Huntington Accessory Apartment Bureau" revoked the Petitioners' permit upon the ground that the Petitioners' refused Respondent, DEPARTMENT OF PUBLIC SAFETY OF THE TOWN OF HUNTINGTON, access to the premises to conduct a warrantless search of the premises.
The Petitioners contend that the Court of Appeals decision ins Sokolov v. Freeport, 52 NY2D 341 is controlling, and prohibits the Respondents from conditioning their continued use of an accessory apartment as the Respondent has permitted since 1992, upon the requirement that they consent to a warrantless search of the premises. The Petitioners are correct. The Court need not reach the constitutional question of whether the Respondent Town is authorized under the New York State Constitution to create its own tribunal to hear violations of its zoning law and thereby supplant the function of the District Court. Greens at Half Hollow, LLC v. Town of Huntington, 15 Misc.2d 415 (J. Cohalan determining Huntington's Administrative Tribunal in derogation of State Law).
Accordingly, the petition is granted in part.
ORDER
ORDERED that Petition is granted to the extent that the Respondent's determination revoking the Petitioners' accessory use permit is vacated (Mot. #001); and it is further
ORDERED that the Petitioners are directed to serve a copy of this decision and order together with a notice of entry on the Respondents as soon as is practicable.
This shall constitute the decision and order of the court.