Majority
—In a proceeding pursuant to CPLR article 78 to review a de
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly dismissed the petition based upon a local zoning ordinance which became effective during the pendency of this proceeding, prohibiting the construction of private heliports (see, Matter of Demisay, Inc. v Petito, 31 NY2d 896 ; Matter of Marasco v Zoning Bd. of Appeals, 242 AD2d 724 ; Matter of Miller v Southold Town, 190 AD2d 672 ; Matter of Shiloh Gospel Chapel v Roer, 170 AD2d 608 ). Since the petitioner was not entitled to a permit for a private heliport as a matter of right prior to the enactment of the ordinance, this case does not fall within the so-called “special facts exception” (Matter of Pokoik v Silsdorf, 40 NY2d 769 , 772; see, General Business Law § 249; Thomson Indus. v Incorporated Vil. of Port Washington N., 32 AD2d 1072 , affd 27 NY2d 537 ). Accordingly, the existing ordinance is controlling {see, Preble Aggregate v Town of Preble, 263 AD2d 849 ). Altman, J. P., H. Miller, Smith and Cozier, JJ., concur.
Cases cited
- Demisay, Inc. v. Petito 31 NY2d 896 p. 504
- Marasco v. Zoning Board of Appeals of the Village of Westbury 242 AD2d 724 p. 504
- Shiloh Gospel Chapel, Inc. v. Roer 170 AD2d 608 p. 504
- Pokoik v. Silsdorf 40 NY2d 769 at 772 p. 504
- Thomson Industries, Inc. v. Incorporated Village of Port Washington North 27 NY2d 537 p. 504
- Preble Aggregate, Inc. v. Town of Preble 263 AD2d 849 p. 504