By: Jeff Lipton
A Nassau County Supreme Court judge has cleared the way for the Village of Atlantic Beach to pursue its own zoning powers after rejecting a move by County Executive Thomas Gulotta to dismiss the village's lawsuit against him.
The village mayor and board of trustees filed the complaint against Gulotta after he twice vetoed a bill by the Nassau County Legislature that would have let voters decide whether the village should have its own zoning authority.
Judge Allan L. Winick, in an eight-page ruling, has granted permission to the village to seek a judgment from the courts to determine if the Nassau County Legislature can change the county charter to grant the village zoning powers. The county executive contends that the New York State Legislature, not the county Legislature, should have that authority.
The Town of Hempstead controls Atlantic Beach zoning because the village was incorporated in 1962. The county charter established in 1938 that any government formed after that date would be subjected to the zoning regulations of the town of which it is a part.
Atlantic Beach is the only village in the state to be without control over its own zoning.
Responding to appeals by village officials, the county Legislature passed a local law on May 15, 2000, to amend the charter, granting zoning powers to villages established before Jan. 1, 1963. But Gulotta vetoed the measure on June 14, 2000, arguing that the county Legislature did not have the authority to grant the village zoning powers.
Gulotta said the village should seek the opinion of state Attorney General Eliot Spitzer, who, two months later, stated that the county Legislature could amend the charter to hand the village zoning powers.
Spitzer said the county could pass a local law that needed the approval of Gulotta and then approval of voters in a countywide referendum.
Thus, the county legislature passed a local law on Aug. 28, 2000, similar to the one it passed on May 15, 2000.
But Gulotta apparently ignored Spitzer's opinion and turned to the county attorney for advice. The county attorney said the county Legislature could not enact a local law removing zoning powers from Hempstead town, stating that the proposed local law "would divest and impair the powers held by the town," was contrary to the charter and violates the state constitution, which prohibits local governments from adopting local laws that impair the powers of local governments. That opinion led Gulotta to once again veto the local law, on Sept. 27.
The county attorney said the proper venue for the enactment of such a law is the state Legislature, not the county Legislature.
Perry Reich, Atlantic Beach village attorney, said he was "very happy" with the Supreme Court ruling and hoped it would lead to zoning power for the village. "We're just looking to get this thing resolved."
Atlantic Beach Mayor Stephen Mahler said of Judge Winick's ruling, "It's a major hurdle. The judge has ruled that we will be allowed our day in court."
Now that the judge has dismissed the county executive's motion, he must rule on the merits of the case, the mayor said.
Mahler and the village board of trustees took the case to the county Supreme Court because they argued that in his first veto message, Gulotta said he would follow the opinion of Spitzer, but when Spitzer sided with the village, Gulotta went along with the county attorney's opinion.
The village wants to know whether the veto becomes void because the veto message was wrong, the mayor said.
"The county executive has veto power," Mahler said. "And it seems to be a requirement that with a veto you must send a veto message. If the veto message is wrong, does that invalidate the veto? That's the question."
He said if the judge decides that the message was wrong and thus the veto was invalid, then the issue of whether the village should have zoning rights should go directly to a public referendum.
Attempts to reach Gulotta for comment were unsuccessful.
In his move to dismiss the complaint, Gulotta stressed that he was the only defendant named in the lawsuit and that Nassau County and the Town of Hempstead should also be included, a point with which the judge agreed. The two additional parties will be added to the suit, said Joseph Ra, Hempstead town attorney. Ra said the judge's decision could be interpreted as Gulotta winning, because the judge agreed that he should not be the only one named.
"The judge did what he could reasonably do in that case," Ra said. "We have to make sure that whatever is done, is done legally."
In ruling that the town and county should be parties to the complaint and denying Gulotta's motion to dismiss the complaint, Judge Winick did say that the county executive can be sued. "Here, Gulotta has not met the burden," the judge wrote in his opinion.
Opponents of the village obtaining its own zoning powers have argued that it would just add another layer of government. But supporters argued that the village is much more familiar with its zoning needs than is the Town of Hempstead.
