Bloom v. Town Bd. of Town of Yorktown

• Court: New York Supreme Court
• Writing for the Court: HAROLD L. WOOD
• Citation: Bloom v. Town Bd. of Town of Yorktown, 424 N.Y.S.2d 983, 102 Misc.2d 938 (N.Y. Sup. Ct. 1980)
• Decision Date: 07 February 1980
• Parties: Michael and Bryna BLOOM, Joel Schnitzer and Rhoda Ash, Plaintiffs, v. TOWN BOARD OF the TOWN OF YORKTOWN; Albert Capellini, Steven Ruderman, Ann Janak, Ernest Martucci, and Nancy Elliot, as and constituting the Town Board of the Town of Yorktown; the Town of Yorktown; and Darswan, Inc., Defendants.

Page 983

424 N.Y.S.2d 983

102 Misc.2d 938

Michael and Bryna BLOOM, Joel Schnitzer and Rhoda Ash, Plaintiffs, v. TOWN BOARD OF the TOWN OF YORKTOWN; Albert Capellini, Steven Ruderman, Ann Janak, Ernest Martucci, and Nancy Elliot, as and constituting the Town Board of the Town of Yorktown; the Town of Yorktown; and Darswan, Inc., Defendants.

Supreme Court, Westchester County.

Feb. 7, 1980.

Taylor & McCullough, Rye, by Frank S. McCullough, Sr., Rye, Paskus, Gordon & Hyman, New York City, for defendant Darswan, Inc.

Samuel Yasgur, County Atty., County of Westchester, White Plains, by Kenneth Powell, Rye, for other defendants.

Berle, Butzel, Kass & Case, New York City, for plaintiffs.

Arthur J. Selkin, Yorton Heights, for defendant Town of Yorktown.

HAROLD L. WOOD, Justice.

Plaintiffs herein, homeowners in the vicinity of property owned by defendant, Darswan, Inc., seek judgment declaring that rezoning of the said property by the other defendants from C-1 Planned Business District to CRS-Regional Shopping Center District by resolutions adopted by the Town Board of the Town of Yorktown (Town) in 1970 and 1971 was improperly effectuated.

Specifically, plaintiffs seek a judgment

"A. Declaring illegal and of no force and effect the purported rezoning to CRS classification of the initial 42 acres of the Subject Property;

B. Declaring illegal and of no force force and effect the purported rezoning to CRS classification of the remaining 8.3 acres of the Subject Property;

C. Setting aside the purported 1970 and 1971 rezonings. " (Plaintiffs' complaint, dated November 23, 1976 and verified November 18th, 1976 (sic), page 9)

The property in question, consisting of 50 acres, was originally acquired from the then owner Jefferson Valley Corporation, by a joint venture which ultimately, due to financial difficulties, conveyed the same as Darswan in 1974.

Prior to 1970 the property was zoned C-1, Planned Business District. In June, 1970, the Town amended its zoning ordinance to establish a new zoning classification denominated CRS-Regional Shopping Center District.

In August, 1970, Darswan's predecessor in title formally applied to the Town for a change in zoning regarding 42 acres of its said property from C-1 to CRS. On September 1, 1970 the Town noticed the application for public hearing on September 15, 1970 and notice of the proposed change in zoning was duly published and, additionally, notice thereof was forwarded to the Westchester County Planning Board (W.C.P.B.). The scheduled hearing was held and closed on September 15, 1970.

By letter dated October 5, 1970, the W.C.P.B. issued its review of the proposed zoning change theretofore referred to it as hereinabove stated.

The said letter of October 5, 1970 was addressed to one Raymond H. Arnold, Director of Planning of the Town of Yorktown and opened its comments, as follows:

"The Westchester County Planning Board, Pursuant to Section 451 of the Westchester County Administrative Code, has reviewed the application (for a zone change) . . . ." (emphasis supplied).

The said letter, in its introductory comments (plaintiffs' Ex. 4, p. 1), stated, in pertinent part, that:

"A point of distinction must be made here between consideration of the change of zone and consideration of the site development proposed that is being promoted on the assumption the change will be granted. It is entirely possible to favor the rezoning and yet to have considerable reservations about the details of the design of the shopping center; . . . . The 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 . . . County Planning Board review, therefore, will be on both the zoning and site development aspects, since this may be our only opportunity to comment on this proposal." (emphasis supplied)

The said letter concluded (p. 4):

"Although 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 Westchester County Planning Board finds that they cannot recommend approval of the requested zone change from C-1 to CRS unless and until the aforementioned safeguards are provided." (emphasis supplied)

Following receipt of this letter of October 5, 1970 and on October 20, 1970, the Town unanimously adopted Resolution # 513 (plaintiffs' Ex. 2) whereby the 42 acres of the subject property was rezoned from C-1 to CRS.

Thereafter, in February, 1971, a further application for similar rezoning was made with regard to the remaining 8 acres of the subject property. On March 16, 1971, the Town noticed a hearing on this second application for April 6, 1971 and on the latter date, by resolution # 141 (plaintiffs Ex. 3), the rezoning of the 8 acres was unanimously approved by the Town. It is important to note, at this juncture, that, with regard to this 8 acres, there was no referral to the W.C.P.B.

The thrust of plaintiffs' instant action for declaratory judgment is that the Town's rezoning of the initial 42 acres was invalid as being violative of the requirements of Section 239-m of the General Municipal Law (GML 239-m) for reasons set forth hereinafter and, further, that such rezoning of the remaining 8 acres was invalid because such rezoning was never submitted for review to the W.C.P.B. as allegedly mandated by both GML 239-m and Section 451 of the Westchester County Administrative Code (Code 451).

GML 239-m requires, in pertinent part that with regard to amendments of zoning regulations by a town, inter alia, which would change the district classification as to real property lying within 500 feet from any existing county or state road, the town "shall, before taking final action on . . . such matters, refer the same to (the) county . . . . planning agency." The said section requires, further, that the county planning agency shall, within 30 days after receipt of a full statement of such referred matter, report its recommendations thereon to the town accompanied by a full statement of the reasons for such recommendations. If such report is not forthcoming within such 30 day period the town may act to rezone without such report.

However, "if such planning agency disapproves the proposal, or recommends modification thereof, the municipal agency having jurisdiction shall not act contrary to such disapproval or recommendations except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action".

Code 451 provides, in pertinent part, that when a town proposes an amendment of a zoning ordinance changing the use classification of property within such town, notice thereof, by mailing a copy of the proposed change at least 10 days prior to any scheduled hearing thereon, must be given to the county planning board. It then goes on to direct that "The county planning board may appear at any such hearing and be heard and file a memorandum of its position. If the county planning board disapproves the proposal on which the hearing is held, or recommends changes or modifications thereof, the municipal agency having jurisdiction shall not act contrary to such disapproval or recommendation except by the adoption of a resolution of such agency, which action shall be subject to judicial review pursuant to the laws providing for the review of acts of such municipal agencies, commenced within thirty days of its adoption."

It seems appropriate, at this point, to set forth, generally, the legislative history of the relevant statutory sections with which we are here involved.

GML 239-m was passed by the Laws 1960, chapter 1041, effective January 1, 1961 and, as originally enacted, was as hereinabove paraphrased except that any overriding of the county planning board disapproval or recommendations could be effectuated by a Majority vote.

By L.1961, ch. 835, effective April 22, 1961, the Legislature added a further paragraph which stated:

"This section shall not apply to any county having an alternative form of county government in pursuance of which approval of the county planning commission or other such agency was required prior to January 1, 1961, of any zoning ordinance or amendments thereto Relating to property within a specified distance from the boundary or line of a municipality or municipalities within such county." (emphasis supplied)

By L.1961, ch. 822 also effective April 22, 1961, Code 451 was added to the Westchester County Administrative Code which, incidentally, was effective July 1, 1948. It is of importance to note, at this juncture, that the said Code contains the following general provisions (Article 19);

"Sec. 611 Application of General Laws Every provision of the general laws of the state of New York applicable to the county of Westchester shall prevail where no similar or comparable provision is made by or can fairly be inferred from this act or the county charter; But where inconsistent or conflicting with any provision of this act or the county charter shall be deemed superceded to the extent of such inconsistency or conflict." (Emphasis supplied)

"Sec. 615 No Repeal by Implication It is not intended by this act to repeal by implication any existing law applicable only to the county of Westchester, and no law shall be deemed repealed hereby unless expressly provided for herein.

No law hereafter enacted shall be construed to repeal any provision of this act by implication, but every such provision shall be deemed in full force and effect until specifically amended or repealed. " (Emphasis supplied)

Coming back now to GML 239-m, by L.1967, ch. 296, effective April 18, 1967, the section was amended to provide the now requirement of an overriding of disapproval or recommendations by a "majority plus one" instead of a mere majority.

By L.1968, ch. 962, effecti...