208 East 30th Street Corp. v. Town of North Salem

• Decision Date: 02 August 1982
• Citation: 452 N.Y.S.2d 902,88 A.D.2d 281
• Parties: TH STREET CORP., Respondent, v. The TOWN OF NORTH SALEM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 902

452 N.Y.S.2d 902

88 A.D.2d 281

208 EAST 30TH STREET CORP., Respondent, v. The TOWN OF NORTH SALEM, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 2, 1982.

Arthur Kass, Somers, for appellant.

Order and judgment (one paper) of the Supreme Court, Westchester County, dated January 7, 1982, affirmed insofar as appealed from, without costs or disbursements. The Town Clerk of the Town of North Salem shall publish the zoning ordinance pursuant to the order and judgment appealed from within 10 days after service upon him of a copy of the order to be made hereon, with notice of entry.

Shamberg, Bender, Marwell & Cherneff, P. C., Mount Kisco (Stuart R. Shamberg, Mount Kisco, of counsel, Robert F. Davis, Mount Kisco, on the brief), for respondent.

Before MOLLEN, P. J., and TITONE, WEINSTEIN and RUBIN, JJ.

WEINSTEIN, Justice.

On January 14, 1981, the Supreme Court, Westchester County, rendered a judgment holding the zoning ordinance of the Town of North Salem to be "illegal, invalid and unconstitutional, on the ground that * * * failed to meet share of the regional housing needs and the needs of its own community" (see Kurzius, Inc. v. Incorporated Vil. of Upper Brookville, 51 N.Y.2d 338, 434 N.Y.S.2d 180, 414 N.E.2d 680; Berenson v. Town of New Castle, 38 N.Y.2d 102, 378 N.Y.S.2d 672, 341 N.E.2d 236). The judgment directed the town to adopt a new zoning ordinance which would include one or more zoning classifications wherein multi-family residential housing was permitted as of right, and further provided that the court retained jurisdiction over the parties in order to insure that a new zoning ordinance, which satisfied the court's constitutional objections, would be enacted. The town, indeed, passed a set of zoning amendments designed to satisfy those objections. This appeal concerns certain procedural issues raised in connection with the enactment of the amendments to the ordinance.

The proposed amendments were to affect eight different sites at various locations within the town. There was no severability clause with respect to the individual sites. While the amendments were pending, recommendations were made by the Westchester County Planning Board, such as the inclusion of a requirement for smoke detectors in multiple dwellings and a requirement for a certain number of parking spaces for multiple dwellings, hotels and motels. These recommendations ultimately were not adopted by the Town Board. Section 239-m of the General Municipal Law provides that a town board must not act contrary to the recommendations of a county planning board, except by a vote of a majority plus one.

Protests against the proposed amendments were registered by certain property owners whose property would be affected by, or was near property that would be affected by, the proposed amendments. Pursuant to section 265 of the Town Law, if there are protests registered against a zoning change by the owners of at least 20% of the land either "included in such proposed change, or * * * immediately adjacent extending one hundred feet therefrom or * * * directly opposite thereto, extending one hundred feet, from the street frontage of such opposite land", the change can become effective only upon approval by three-fourths of the members of the town board. In this case, the owners of 20% of the total land affected by, or adjacent to or opposite land affected by, the amendments as a whole did not register protests. However, the owners of about 35% of the relevant land in the Salem Center site, one of the eight individual sites affected by the proposed amendments, as well as the owners of less than 20% of the relevant land in the Peach Lake site, did register protests.

The Town Board voted on the amendments, as a unified set and not by individual site, on December 8, 1981. The vote was 3-2 in favor, clearly neither a three-fourths vote, as would be required if the provisions of section 265 of the Town Law were deemed operative, nor a majority plus one, as would be required pursuant to section 239-m of the General Municipal Law. Accordingly, the town refused to publish the amendments, thereby precluding their taking effect.

Plaintiff, which owned property whose status would be affected by the zoning amendments, thereupon moved at Special Term for an order directing the town to publish the amendments. Plaintiff noted before Special Term that a new Town Board had been elected in North Salem on a platform promising no changes in zoning, and that there was not a "prayer in hell" that a new ordinance could be passed by a 4-1 vote. Plaintiff apparently did not give the protesting landowners notice of this motion. However an attorney representing the protesters in Salem Center was allowed to appear at oral argument before Special Term.

Special Term held that insofar as the amended ordinance affected property in the Salem Center location, it had not been properly enacted. However, it stated that "to the remaining areas, since no valid protests from 20 percent of the landowners of any other location were submitted, the vote of the Town Board was sufficient to adopt the remainder of the amendment to the ordinance." The court held that the amended ordinance, even without the provisions relating to Salem Center, satisfied the constitutional objections which had been set forth in the earlier judgment.

The town has appealed from the resulting order and judgment. It is, we might note, a rather unusual situation: an appeal by a town from a judgment which held its own zoning ordinance to be valid!

The town raises, essentially, three arguments on appeal. The first goes to the jurisdiction of the court to adjudicate the instant matter. The town argues that certain necessary parties, in particular, the owners of the land that was to be affected by the zoning amendments, should have been, but were not, made parties to this matter (see CPLR 1001, subd. CPLR 3211, subd. par. 10).

The merits of this argument turn upon the nature of this lawsuit. If the lawsuit is in the nature of an action for a declaratory judgment, seeking a declaration that the zoning amendments were validly enacted, it would appear that the protesting landowners indeed were necessary parties, for they "might be inequitably affected by a judgment in the action" (see CPLR 1001, subd. see, also, Brechner v. Incorporated Vil. of Lake Success, 23 Misc.2d 159, 201 N.Y.S.2d 254; cf. Challette, Inc. v. Town of Brookhaven, 43 Misc.2d 264, 250 N.Y.S.2d 165, for a contrary rule in an instance where, as here, plaintiff is itself an affected property owner). Those landowners who did not protest even after the proposed amendments were made public indicated, by their silence, that they would not be "inequitably affected by a judgment in the action", but the same could not be said with respect to those landowners who filed protests. If such were the case, the fact that the protesting landowners in Salem Center were allowed to intervene would not be sufficient to satisfy the statute, because protesting landowners in the Peach Lake site were not afforded the opportunity to be heard.

We hold, however, that this is not a declaratory judgment action. The relief actually sought, notwithstanding the language in the moving papers, was in the nature of mandamus, to wit, an order directing the Town of North Salem "to perform a duty enjoined upon it by law" (see CPLR 7803, subd. 1), specifically, to publish the zoning amendments. Accordingly, the nature of this matter is a proceeding pursuant to CPLR article 78, and therefore, "the officer whose conduct is to be controlled is the only necessary party respondent" (24 Carmody-Wait 2d, N.Y. Prac., § 145:265, p. 65; see, also, Matter of Zimmerman v. Kramer, 29 Misc.2d 413, 217 N.Y.S.2d 438; Matter of Leventhal v. Michaelis, 29 Misc.2d 831, 219 N.Y.S.2d 508). To be sure, the court may direct that notice of the proceeding be given to other persons, or allow other interested persons to intervene (CPLR 7802, subd. ), but the statute makes this discretionary with the court. Essentially, a proceeding under article 78 is a proceeding against a body or officer only. Since the Town of North Salem was properly made a party to this suit, the court had jurisdiction to reach the merits.

The second issue raised by the town, and the first going to the merits, concerns section 239-m of the General Municipal Law. That section, referred to earlier, provides that when a town board decides to act contrary to the recommendations of a county planning board, as the Town Board of North Salem did here, it must do so by a vote of a majority plus one. The zoning amendments herein were, as stated earlier, approved by a vote of only 3-2. However, section 277.61 of the Westchester County Administrative Code, in contrast to the General Municipal Law, provides that a town board may act contrary to the recommendation of the county planning board by a simple majority vote, as long as the action is accompanied by a resolution of the board (a requirement also contained in the General Municipal Law). The mandate of the County Administrative Code was fulfilled here.

The General Municipal Law and the Westchester County Administrative Code are thus in conflict on this point. A similar conflict between...