By Jeff Lipton
The issue will be placed on a countywide referendum, thanks to a four-judge Second Judicial Department panel of the Appellate Division in Brooklyn which ruled last week that the county legislature has the authority to change the county charter, allowing Atlantic Beach to create its own zoning board.
The village is the only one in the state without zoning powers because it was incorporated in 1963 and the county charter said that any municipality formed after 1938 will be without zoning powers. The Town of Hempstead controls the village's zoning and has appealed last week's ruling, which could delay the referendum from being presented to voters in November.
But Perry Reich, attorney for Atlantic Beach, said, as of now, the issue is on the Nov. 5 ballot and will go forward for a vote. It's on the ballot. I haven't gotten word of any delay or anything, Reich said.
He added that the case would be considered by the Court of Appeals before Election Day. If approved, the referendum would change the date from 1938 to 1963, granting the village zoning powers. In the case Mahler v. Gulotta, in which Atlantic Beach Mayor Stephen Mahler argued that the move by former County Executive Thomas Gulotta to veto the date change was wrong, the Appellate Division of the Second Judicial Department of the State Supreme Court ruled 3-1 to side with the mayor on Monday, Sept. 23. The case was argued before the appellate division on June 14.
The village argued that the Nassau County Legislature, which passed a local law amending the charter, has the authority to do so and does not require an action by the state legislature, as argued by Gulotta and the Town of Hempstead. Nassau County Supreme Court Justice Allan Winick had held on Aug. 28, 2001 that the county did not have authority to amend the charter, even though State Attorney General Eliot Spitzer agreed with the village. Winick's decision forced the village to appeal to the Second Judicial Department.
Even though the county legislature passed the measure twice, it was vetoed both times by Gulotta. The village had sought an opinion from Judge Winick to overrule Gulotta but the judge backed the former county executive. When Thomas Suozzi took over as county executive in January, he signed the measure into law, but the courts still had to clear the way for the item to be placed on the ballot.
Opponents of the measure granting the village its own zoning argued that it would add another layer of bureaucracy by stripping those powers from the Town of Hempstead. The village mayor and others argued that the town is afraid that by granting the village these powers it would encourage unincorporated areas to become incorporated villages. The mayor said the town is far removed from zoning issues in Atlantic Beach, and the village knows better than anyone how to handle its own problems.
The Town of Hempstead covers a very large area, Mahler said. It's very hard for the town to get excited about all the problems of a very small community.
Their arguments are sheer nonsense, the mayor added. The village just celebrated its 40th anniversary. The government has been around 40 years. It's not like we're creating a village. Out of 550 villages in the state, 549 have zoning powers, he said.
In its decision last week, the majority of the Second Judicial Department said: It goes without saying that any transfer of the zoning functions from the Town of Hempstead to the Incorporated Village of Atlantic Beach will impair the powers of the Town of Hempstead. But this is no reason to invalidate the transfer [of power].
In casting the lone dissenting vote, Judge Robert W. Schmidt said, I agree with the Supreme Court that the legislative action at issue is not a mere transfer of functions but rather constitutes an invalid impairment of the zoning powers of the Town of Hempstead and as such violates Nassau County Charter.
Mayor Mahler said, The bottom line is that the proposition will be on the ballot in November unless the Court of Appeals intervenes... I think the issue will go on the ballot and nothing will stand in its way. Mahler said since the ballot will be put before the entire county, he is uncertain how the vote will go. But he said the Nassau County Village Officials Association, in which Mahler is a top official, will be working to get the referendum passed. The association consists of 64 villages and about 450,000 members.
