Dougherty v. City of Rye

• Decision Date: 15 November 1984
• Citation: 473 N.E.2d 249,63 N.Y.2d 989,483 N.Y.S.2d 999
• Parties: , 473 N.E.2d 249 Kathryn L. DOUGHERTY et al., Respondents, v. CITY OF RYE et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 999

483 N.Y.S.2d 999

63 N.Y.2d 989, 473 N.E.2d 249

Kathryn L. DOUGHERTY et al., Respondents, v. CITY OF RYE et al., Appellants.

Court of Appeals of New York.

Nov. 15, 1984.

Richard M. Gardella, Corp. Counsel, White Plains, for appellants

George P. Forbes, Jr., Larchmont, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 103 A.D.2d 818, 478 N.Y.S.2d 342, should be affirmed.

We agree that notice to the County Planning Board of hearings on the proposed zoning amendment was required under section 277.61 of the Westchester County Administrative Code (Bloom v. Town Bd., 80 A.D.2d 823, 436 N.Y.S.2d 355, app. dsmd. 53 N.Y.2d 938). The City argues, however, that even if such notice was required, plaintiffs are not entitled to summary judgment because they have not shown that there is evidence in the record which would establish beyond a reasonable doubt that notice of the hearings was not mailed to the County Planning Board. This argument incorrectly equates the presumption of constitutionality, which can only be rebutted under the reasonable doubt standard (Wiggins v. Town of Somers, 4 N.Y.2d 215, 218, 173 N.Y.S.2d 579, 149 N.E.2d 869), with the presumption of regularity of procedures, which only shifts the burden of going forward to the party claiming that normal procedures were not followed (People v. Richetti, 302 N.Y. 290, 298, 97 N.E.2d 908).

Here, the City Clerk's affidavit did not establish a normal procedure of giving the required notice. When it is read in the context of the other affidavits submitted by the City, it establishes only that notices were mailed when they were required under the City's interpretation of section 277.61, and the City has taken the position that notice to the County was not required in the present case because the property involved does not abut a State or county road.

With respect to the City's claim of laches, which is based on the 16 months that elapsed between enactment of the zoning amendment and the commencement of this action, there has been no showing of any substantial prejudice resulting from the delay. It is undisputed that no construction on the property had begun when the action was commenced (cf. Matter of Friends of Pine Bush v. Planning Bd., 86 A.D.2d 246, 247-248, 450 N.Y.S.2d 966, affd. 59 N.Y.2d 849, 465 N.Y.S.2d 924, 452 N.E.2d 1252; Zelenski v. Incorporated Vil. of Patchogue, 51 A.D.2d 1055, 1056, 381 N.Y.S.2d 531). The only assertion regarding prejudice that appears...