Opinion
April 19, 1971
In an action to declare a change of zoning classification and an amendment of a zoning ordinance void and unconstitutional and for injunctive relief, in part to enjoin defendant Matt-A-Mar, Inc., from proceeding with certain construction work, (a) defendants Matt-A-Mar, Baker and Van Buren appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County, entered December 3, 1968, as denied their cross motion for summary judgment, and (b) plaintiffs appeal from so much of said order as denied their motion for summary judgment. Order affirmed, without costs. Plaintiffs, the owners of property which is separated from the subject premises by a deep water channel, allege, as a result of a rezoning which permits the establishment of a marina and other related facilities, that the waters which wash upon their beach have become polluted and that debris washes up; that noise and the increased activity attendant upon the operation of the business have impaired their use and enjoyment of the property; and that the value of their property has been "seriously affected". In our opinion, these allegations are sufficient to establish a genuine issue of fact to be resolved at a trial as to whether plaintiffs have standing to maintain this action ( Daum v. Meade, 35 A.D.2d 598; cf. Stark v. Scudder, 33 A.D.2d 519). We are further of the opinion that the record presents a triable issue of fact as to whether the action of the respondent Town Board constituted "spot zoning" (see Rodgers v. Village of Tarrytown, 302 N.Y. 115). If it is determined after a trial that this was "spot zoning", defendant Matt-A-Mar, Inc. may not assert the defense of vested rights. Such rights may not be acquired under an invalid ordinance (see 101 C.J.S., Zoning, §§ 21, 22; 2 Rathkopf, Law of Zoning and Planning, p. 56-3; Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 500). A question of fact is presented as to whether the action is barred by laches by virtue of the fact that Matt-A-Mar, Inc. allegedly expended funds to improve the property subsequent to its purchase but prior to the institution of the action. However, in our opinion, Matt-A-Mar may not, in support of the assertion of this defense, rely upon its expenditure in purchasing the property shortly after the change in zoning or upon its expenditure for construction work performed after the action was instituted ( Mazzara v. Town of Pittsford. 34 A.D.2d 90). Hopkins, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.