Bloom v. Town Bd. of Town of Yorktown

• Decision Date: 02 March 1981
• Citation: 80 A.D.2d 823,436 N.Y.S.2d 355
• Parties: Michael BLOOM et al., Appellants, v. TOWN BOARD OF the TOWN OF YORKTOWN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 355

436 N.Y.S.2d 355

80 A.D.2d 823

Michael BLOOM et al., Appellants, v. TOWN BOARD OF the TOWN OF YORKTOWN et al., Respondents.

Supreme Court, Appellate Division, Second Department.

March 2, 1981.

Berle, Butzel, Kass & Case, New York City (Albert K. Butzel, Jean C. Berman and Mitchell S. Bernard, New York City, of counsel), for appellants.

Arthur J. Selkin, Town Atty., Yorktown Heights, for town respondents.

Paskus, Gordon & Hyman, New York City (Philip H. Schaeffer, Alan A. Sachs and Richard W. Goldschmidt, New York City, of counsel), and Taylor & McCullough, Rye (Frank S. McCullough, Sr., Rye, of counsel), for respondent Darswan, Inc. (one brief filed).

Before LAZER, J. P., and MANGANO, GIBBONS and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a declaratory judgment, plaintiffs appeal from a judgment of the Supreme Court, Westchester County, dated March 7, 1980, which, after a nonjury trial, inter alia, declared that Resolution No. 513, adopted by the Town Board of the Town of Yorktown on October 20, 1970, and Resolution No. 141, adopted by the Town Board of the Town of Yorktown on April 6, 1971, were properly and legally adopted.

Judgment modified, on the law, by deleting the second and fourth decretal paragraphs and deleting from the fifth decretal paragraph the words "and in Resolution # 141". As so modified, judgment affirmed, without costs or disbursements, and case remitted to Special Term for further proceedings consistent herewith.

In this action plaintiffs, whose property lies in the neighborhood of the land at issue here, contest the validity of two zoning resolutions adopted by the Town Board of the Town of Yorktown. In the first of these resolutions (Resolution No. 513), adopted October 20, 1970, the town board rezoned a 42-acre tract of land abutting Route 6, a State highway, to "CRS District" for use as a regional shopping center. In the second resolution (Resolution No. 141), adopted April 6, 1971, a contiguous 8-acre parcel also was rezoned to "CRS District" and added to the land previously rezoned to regional shopping center. Although the second parcel did not abut Route 6, it was within 500 feet of it.

In their declaratory judgment action (and on this appeal), plaintiffs maintained that both resolutions are invalid because the town board failed to comply with section 239-m of the General Municipal Law, which requires the municipal body with relevant zoning jurisdiction to refer to the county planning agency for review proposed zoning amendments, special permits or variances affecting land within 500 feet of a State highway. If the county planning agency disapproves of the amendment, permit or variance, the municipal body may adopt it by the vote of a majority plus one and only after "adoption of a resolution fully setting forth the reasons for such contrary action."

Here the town board did refer the original amendment rezoning the 42 acres abutting Route 6 to the Westchester County Planning Board. Noting in its letter of reply that the proposed development is generally in accordance with the master plan of the town and the site is a reasonable one for this type of development, the County Planning Board nevertheless declared that approval of the amendment was being withheld until submission of an adequate site plan. The letter explained that the agency was attempting to exercise control over the site plan because "(t)he County Planning Board has jurisdiction only over the change of zone; site plan approval is a local matter, subject to county review only in some functional areas such as health requirements and drainage * * * (T)his may be our only opportunity to comment on this proposal." The town board, however, approved the amendment unanimously without referring to the opinion of the County Planning Board and without any explanation of its reasons. The second amendment rezoning and contiguous 8-acre parcel was adopted without referring the proposal to the County Planning Board for a recommendation.

Special Term held that section 451 of the Westchester County Administrative Code was in conflict with section 239-m of the General Municipal Law, and since the provisions could not be harmonized and given effect, the Administrative Code section was controlling. In Special Term's view, both resolutions were adopted in compliance with section 451 of the Westchester County Administrative Code (Bloom v. Town Bd. of Town of Yorktown, 102 Misc.2d 938, 424 N.Y.S.2d 983).

At issue is the necessity of the town board of comply with section 239-m of the General Municipal Law. The section originally was enacted in 1960 (see L.1960, ch. 1041) as a general law (see Matter of Smithtown v. Howell, 31 N.Y.2d 365, 375, 341 N.Y.S.2d 106, 111, 293 N.E.2d 253, 258), while section 451 of the Westchester County Administrative Code, enacted by the State Legislature in 1961 (see L.1961, ch. 822), is a special law (see Municipal Home Rule Law, § 2, subd. 12), which was not affected by subsequent amendments (see L.1961, ch. 835; L.1968, ch. 962) to section 239-m of the General Municipal Law (see Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 185, n.1, 351 N.Y.S.2d 129, 134, 306 N.E.2d 155, 160; cf. Matter of We're Assoc. Co. v. Bear, 35 A.D.2d 846, 317 N.Y.S.2d 59, affd. 28 N.Y.2d 981, 323 N.Y.S.2d 838, 272 N.E.2d 338). Therefore, where the two sections conflict, section 451, as a special law, must prevail (see McKinney's Cons.Laws of N.Y., Book 1 Statutes, § 397; Board of Coop. Educ. Servs., Nassau County v. Goldin, 38 A.D.2d 267, 328 N.Y.S.2d 958; Town of Pelham v. Village of North Pelham, 38 Misc.2d 234, 237 N.Y.S.2d 253).

The further question is whether the two sections can be read together. Both statutes set forth different and inconsistent procedures to achieve the same end, although each provides for county planning agency input on local land use determinations. When he approved the...