Coutant v. Town of Poughkeepsie

• Decision Date: 06 August 1979
• Citation: 419 N.Y.S.2d 148,69 A.D.2d 506
• Parties: Beatrice COUTANT et al., Respondents, v. TOWN OF POUGHKEEPSIE, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 148

419 N.Y.S.2d 148

69 A.D.2d 506

Beatrice COUTANT et al., Respondents, v. TOWN OF POUGHKEEPSIE, Appellant, et al., Defendant.

Supreme Court, Appellate Division, Second Department.

Aug. 6, 1979.

Vasti, Orcutt, Rinaldi & Gilhuly, Pleasant Valley (Thomas F. Vasti, Jr., Pleasant Valley, Julius L. Sackman, Sidney Z. Searles, New York City and John T. Orcutt, Pleasant Valley, of counsel), for respondents.

David D. Hagstrom, Town Atty., Poughkeepsie (Anthony De Rosa, Harrison, on the brief), for appellant.

Before SUOZZI, J. P., and GULOTTA, COHALAN, MARGETT and MARTUSCELLO, JJ.

SUOZZI, Justice Presiding.

Plaintiffs seek a declaration that the 1956 Town of Poughkeepsie zoning ordinance is null and void. The defendant Town of Poughkeepsie appeals from an order which granted the plaintiffs' motion for summary judgment and declared that the said ordinance was at all times null and void. The order should be reversed and plaintiffs' motion should be denied.

In our view, Special Term erred in granting summary judgment to plaintiffs. In their complaint dated October 20, 1976, plaintiffs alleged that a purported zoning ordinance enacted by the town in 1956, and under which the town acted until 1974 when it adopted a new ordinance, was invalid on numerous grounds including, Inter alia, the town's failure to enact the 1956 ordinance in accordance with a comprehensive plan, and several claimed failures to conform with sections 264 and 265 of the Town Law. It was also alleged that plaintiffs' property became the subject of condemnation proceedings in 1971 and that plaintiffs would stand to suffer great pecuniary loss in that proceeding if the ordinance were declared valid since the property was in a more restricted zoning classification.

In its answer, the town interposed two affirmative defenses: (1) laches ("plaintiffs did not object * * * until * * * 20 years after the Zoning Ordinance was duly adopted * * * 8 years after the property was conveyed to them and 5 years since a condemnation proceedings was commenced against them"); and (2) full compliance with the applicable statutes.

In its decision, Special Term noted that "the procedure for the enactment of * * * an ordinance * * * must be strictly adhered to" and that the alleged procedural failures on the part of the defendant town as alleged by plaintiffs would be, if proved, "fatal to the validity of the ordinance". Special Term characterized the town's opposition to the motion for summary judgment as "little more than a request for more time to produce the necessary evidence" and held that said defendant had "failed to lay bare its proof by producing the physical evidence necessary to defeat this motion" after being given ample time to do so. Accordingly, it granted summary judgment to plaintiffs.

In our view, several of the alleged procedural irregularities were conclusively rebutted by the opposing papers submitted by the town. As to the remaining irregularities, at best an issue of fact exists which can only be resolved after a full trial.

In their brief plaintiffs have specified the significant omissions which allegedly occurred during the process of enacting the 1956 zoning ordinance as follows:

(1) Substantial changes were made in the zoning ordinance adopted in 1956 without a new public hearing being properly noticed;

(2) No notice was given to "adjoining towns" respecting public hearings held with regard to the 1956 ordinance;

(3) The 1956 ordinance as adopted was never published;

(4) The zoning ordinance was never posted;

(5) Affidavits of posting and publication of the 1956 zoning ordinance were not filed with the Town Clerk; and

(6) The 1956 zoning ordinance was not enacted in accordance with a comprehensive plan.

The last ground advanced by plaintiffs in support of their motion for summary judgment can be swiftly disposed of.

A zoning change is a legislative act and is presumed to be constitutional and valid (Shepard v. Village of Skaneateles, 300 N.Y. 115, 89 N.E.2d 619; Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269, 189 N.Y.S.2d 212, 160 N.E.2d 501; Emjay Props. v. Town of Brookhaven, 42 A.D.2d 907, 347 N.Y.S.2d 736; 1 Anderson, American Law of Zoning, § 4.26). Not only do the plaintiffs have the burden of proving the invalidity of the ordinance (see Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 351 N.Y.S.2d 129, 306 N.E.2d 155), but it is rare that such a burden can be sustained on papers alone without a trial. Thus, in Iannarone v. Caso, 59 Misc.2d 212, 216, 298 N.Y.S.2d 350, 354, affd. 33 A.D.2d 658, 306 N.Y.S.2d 404, Special Term stated:

"Plaintiffs' final contention is that the zoning change was not made in accordance with the Comprehensive Plan of the Building Zone Ordinance of the Town of Hempstead. The Comprehensive Plan of a municipality is not always easily recognizable. Whether a rezoning is in accordance with the Comprehensive Plan is a factual question, not properly disposed of on a motion for summary judgment, CPLR 3212, subd. (b); cf. Udell v. Haas, 21 N.Y.2d 463, 288 N.Y.S.2d 888, 235 N.E.2d 897."

As a general introduction to its contention that procedural irregularities existed in the purported adoption of the 1956 zoning ordinance, the plaintiffs argue that the "procedural steps required by the enabling acts of municipalities are regarded as mandatory and failure to comply therewith invalidates the enactment" (see Keeney v. Village of LeRoy, 22 A.D.2d 159, 163, 254 N.Y.S.2d 445, 448; see, also, Town of Schroeppel v. Spector, 43 Misc.2d 290, 251 N.Y.S.2d 233).

However, this principle must be viewed in its proper perspective. There is a countervailing principle which holds that there is a presumption that public officers have performed the duties imposed upon them by law. As stated in Commission of Public Charities of City of Hudson v. Wortman, 255 App.Div. 241, 245, 7 N.Y.S.2d 631, 636, affd. 279 N.Y. 711, 18 N.E.2d 325:

"There being a presumption that official acts and duties have been performed, we may assume in the absence of showing to the contrary that the proper procedural steps necessary to enactment were taken."

Under these circumstances, plaintiffs carried a heavy burden in attempting to show that no issue of fact was raised in the opposing papers of the town and that the 1956 zoning ordinance was invalid as a matter of law. In our view, plaintiffs failed to meet their burden.

With respect to alleged defective notices of hearing, plaintiffs do not dispute either the existence or validity of the notice of hearing which preceded the August 8, 1956 public hearing or the notice of hearing which preceded the November 28, 1956 public hearing, during which time changes were made in the zoning ordinance and zoning map. (There were copies of the notices of these hearings and affidavits of publication of same submitted at Special Term).

The purposes of both these hearings were designated respectively as follows:

"rescinding the present, existing, Zoning Ordinance and the adoption for an Amended Zoning Ordinance. Further, in conjunction with the Ordinance as a whole a Public Hearing will be held in the matter of Amending the Zoning Map which accompanies the same as a part thereof"; and

"adopting an Amended Zoning Ordinance and an Amended Zoning Map which accompanies the same as a part thereof."

It is the third notice of public hearing which plaintiffs contend was defective. Accordingly, plaintiffs argue that the amendments adopted at the December 12, 1956 meeting were invalid. The town submitted a copy of the notice of hearing and an affidavit of publication of this notice of hearing. However, plaintiffs' argument is addressed to the language of the notice which reads as follows:

"Notice is hereby given that a Public Hearing will be held by the Town Board of the Town of Poughkeepsie * * * for the purpose of Rezoning to Commercial D-4 District, the lands in the Town of Poughkeepsie described as follows".

According to plaintiffs, there was no indication in this notice that a change was to be made in the 1956 ordinance or the zoning map as incorporated therein.

However, the cases cited by plaintiffs do not support their contention. In both Rabasco v. Town of Greenburgh, 285 App.Div. 895, 137 N.Y.S.2d 802, affd. 309 N.Y. 375, 128 N.E.2d 425 and Village of Mill Neck v. Nolan, 233 App.Div. 248, 251 N.Y.S. 533, affd. 259 N.Y. 596, 182 N.E. 196, substantial changes were made in the zoning ordinance without a new public hearing or a new notice of public hearing.

In the case at bar, it is undisputed that a notice of public hearing was published for the December 12, 1956 public hearing stating the particular purpose of the meeting and that a public hearing was held.

In describing the purpose and requirements of the notice of public hearing, the court in Vizzi v. Town of Islip, 71 Misc.2d 483, 485, 336 N.Y.S.2d 520, 523-24 stated:

"The published notice is the fundamental vehicle for communicating to the public any local legislative changes which affect residential interests. It may be the only informational source that warns local property owners of zoning changes affecting their land's use and value, either adversely or beneficially, directly or indirectly. The viability of the statutory scheme of public hearing in relation to zoning changes is dependent upon proper advance notice.

"The notice must be clear and unambiguous. It must be readily intelligible to the intended reader, the average citizen at large. The language used must inform the layman who is presumed to lack the technical knowledge of a zoning expert. The meaning of any particular notice must therefore be ascertained through lay eyes. (1) Rathkopf, The Law of Zoning and Planning, p. 8-18, Supp. p. 151; see Albini v. Stanco, 61 Misc.2d 813, 306 N.Y.S.2d 731, affd. 32 A.D.2d 1042, 303 N.Y.S.2d 1016; Village of Sands Point v. Sands Point Country Day School, 2 Misc.2d 885, 148 N.Y.S.2d 312, affd. 2 A.D.2d 769, 154...