Opinion
Argued June 7, 2001.
July 9, 2001.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of the Town of Washington, which denied the petitioner's request for a referral of its private heliport application to the Commissioner of Transportation of the State of New York pursuant to General Business Law — 249, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated March 23, 2000, which denied the petition and dismissed the proceeding.
Quartararo Quartararo, Poughkeepsie, N.Y. (Paul M. Quartararo of counsel), for appellant.
Van DeWater and Van DeWater, LLP, Poughkeepsie, N.Y. (John K. Gifford and Kyle Barnett of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., HOWARD MILLER, NANCY E. SMITH, BARRY A. COZIER, JJ.
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 N.Y.2d 896; Matter of Marasco v. Zoning Bd. of Appeals of Vil. of Westbury, 242 A.D.2d 724; Matter of Miller v. Southold Town, 190 A.D.2d 672; Matter of Shiloh Gospel Chapel v. Roer, 170 A.D.2d 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 N.Y.2d 769, 772; see, General Business Law — 249; Thomson Ind. v. Incorporated Vil. of Port Washington North, 32 A.D.2d 1072, affd 27 N.Y.2d 537). Accordingly, the existing ordinance is controlling (see, Preble Aggregate v. Town of Preble, 263 A.D.2d 849).
ALTMAN, J.P., H. MILLER, SMITH and COZIER, JJ., concur.