Upon the foregoing papers, the motion by plaintiff for an Order pursuant to CPLR §3212 granting summary judgment to plaintiff BLF Associates LLC on the complaint and declaring Article XXXVIII of the Building Zone Ordinance of the Town of Hempstead unconstitutional, ultra vires, and void as a matter of law and granting related injunctive and monetary relief and the cross-motion by the defendants for an Order pursuant to CPLR §3212 granting the summary judgment motion of the defendants, are both determined as hereinafter provided:

This declaratory judgment action involves a 17 acre parcel of land located in Bellmore, New York which is owned by the plaintiff. A review of the respective submissions establishes that the property in issue had been owned by the United States Government and used by the Department of Defense as United States Army Reserve Facility for the period 1953 to 1994 and upon the Facility's closure maintained as surplus property by the Department of Defense until it closed title to the plaintiff on November 30, 2005 after the plaintiff had been the successful bidder for the property. Prior to purchase by the plaintiff, the defendant Town of Hempstead pursuant to the Federal Closure and Realignment Act had expressed an interest in the property and pursuant to said Act had established a local redevelopment agency to develop a usage for the property in the form of a Base Reuse Plan. This Plan developed a specific mixed-use development limited to 34 single-family homes, 40 senior citizen housing units with a [*2]price cap and the construction of a community center with an indoor pool, gym and tennis courts. The Base Reuse Plan was never implemented by the defendant Town of Hempstead as the defendant Town of Hempstead did not purchase the property.

Subsequent to the plaintiff's successful bid to purchase the property, the defendant Town of Hempstead in April 2005, passed Resolution No. 416-2005 which approved an Article XXXVIII entitled the North Bellmore Planned Residence District (see plaintiff's Exhibit F). In substance, the North Bellmore Planned Residence District incorporated the provisions of the Base Reuse Plan.

The plaintiff brings the instant action for a declaratory judgment based upon the fact that the North Bellmore Planned Residence District and its specific form of mixed usage development is inconsistent with the surrounding area of Bellmore which is zoned Residence B and as such is ultra vires of the defendant Town of Hempstead's zoning authority and is constitutes an unconstitutional taking.

The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 6l6 NYS2d 650, 65l (Second Dept., l994):

"It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 85l, 853, 487 NYS2d 3l6, 476 NE2d 642; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 7l8). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 50l NE2d 572; Zuckerman v. City of New York, supra , 49 NY2d at 562, 427 NYS2d 595, 404 NE2d 7l8)."

A review of the respective submissions and the respective contentions of the respective parties as set forth on the record on March 8, 2007 establish that the enactment of Article XXXVIII exceeded the defendant Town of Hempstead's authority as set forth in §§261 and 262 of the Town Law and as such the enactment is ultra vires. By this determination, the Court declines to reach the plaintiff's constitutional issues (see, FGL & L Property Corp. v City of Rye, 66 NY2d 111, 495 NYS2d 321).

To the extent that the plaintiff seeks a declaration that the defendants' act in passing Article XXXVIII is an ultra vires act, the plaintiff's application for an Order pursuant to CPLR §3212 granting summary judgment to plaintiff BLF Associates LLC on the complaint and declaring Article XXXVIII of the Building Zone Ordinance of the Town of Hempstead unconstitutional, ultra vires, and void as a matter of law and granting related injunctive and monetary relief, is granted. The defendants' cross-motion for an Order pursuant to CPLR §3212 granting the summary judgment motion of the defendants, is denied.

SO ORDERED.

DATED:.....................................................................

J.S.C.