Majority
p. 880Joseph Benigno, Appellant, v Peter Cohalan et al., Constituting the Town Board of the Town of Islip, et al., Respondents. Argued September 16, 1976; decided October 19, 1976
p. 881
Frederick Fagelson for appellant.
Francis G. Caldeira, Town Attorney (Edward S. Raskin of counsel), for respondents.
Memorandum. The order of the Appellate Division should be affirmed.
As noted by the Appellate Division, in consequence of failure of publication as required by section 265 of the Town
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Law, the zoning resolution dated November 11, 1971 never became effective. This consequence is not altered by appellant’s assertions with respect to the circumstances of such nonpublication, or the possibility that remedies therefor may have existed by way of mandamus or self-help. Nor is the doctrine of "vested rights” applicable here to bolster appellant’s position.
Appellant has, however, been restored to his former position because, as we are informed, the town board has executed a release of the declaration of covenants and restrictions recorded by him in anticipation of an effective zoning ordinance.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.
Order affirmed, with costs, in a memorandum.