Miner v. City of Yonkers

• Decision Date: 12 June 1959
• Citation: 189 N.Y.S.2d 762,19 Misc.2d 321
• Parties: Sylvia MINER, Charles R. Maxwell, Harold N. Leitman, et al., Plaintiffs, v. CITY OF YONKERS, John J. Balint, as Superintendent of Buildings of the City of Yonkers, Vioe Realty Corp., et al., Defendants.
• Court: New York Supreme Court

Page 762

189 N.Y.S.2d 762

19 Misc.2d 321

Sylvia MINER, Charles R. Maxwell, Harold N. Leitman, et al Plaintiffs, v. CITY OF YONKERS, John J. Balint, as Superintendent of Buildings of the City of Yonkers, Vioe Realty Corp., et al., Defendants.

Supreme Court, Westchester County.

June 12, 1959.

Sugarman, Kuttner & Fuss and Leon London, New York City (Howard Kuttner, New York City, of counsel), for plaintiffs.

Bleakley, Platt, Walker, Hart & Fritz, White Plains (John C. Marbach, John F. Minicus, White Plains, of counsel), for defendants, Vioe Realty Corp., Tishman Realty & Construction Co., Inc., S. Klein Dept. Stores.

J. Raymond Hannon, Yonkers, for City of Yonkers and Balint.

SAMUEL W. EAGER, Justice.

This action attacks the validity of City of Yonkers General Ordinance No. 15-1958 which amended the general zoning ordinance of said city to re-classify and place in a 'BA' District (a business apartment district) a parcel of 28.3940 acres of land situate on the easterly side of Central Park Avenue. Prior to the amendment, a greater portion of the parcel was restricted to residential use. The amendment had the effect of permitting the use of the parcel for department store purposes. The fact is that, following the amendment and after the commencement of this action, a permit was obtained for the construction upon the parcel of a large S. Klein Department Store with a parking lot for some 3,000 cars; and such improvement, building and parking lot are now substantially erected and completed.

The action was brought by a number of owners and occupants of residential properties situate in the immediate neighborhood of the subject parcel. The relief demanded in their complaint is a judgment declaring void the said General Ordinance No. 15-1958 and restraining the defendant Superintendent of Buildings from issuing a permit for the erection upon the land of any business building. As noted above, however, a permit was in fact issued for the construction upon the premises of a department store building with parking lot, and the construction thereof has been substantially completed, so that the plaintiffs now, on the submission of the case, request a mandatory injunction directing the removal of the business use improvements.

The action was tried before the undersigned without a jury at the April, 1959, Special II Term of this Court, and the proofs of the parties have been duly received and considered. The Court has reached the conclusion that the plaintiffs have failed to make out a case for any relief, and the complaint is dismissed without costs. The following are the findings and conclusions arrived at to support the Court's determination.

1. General Ordinance No. 15-1958 is not rendered invalid by irregularities in compliance with statutory and local law provisions having to do with the initiating of a zoning change by petition.

General City Law, Section 83, provides that the 'common council may from time to time on its own motion or on petition, after public notice and hearing, which hearing may be held by the council or by a committee of the council, amend, supplement or change the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section twenty of this chapter.' It was further provided by Chapter 722 of the Laws of 1946 of the State of New York, as amended by Chapter 133 of the Laws of 1947 of the State of New York, and by Local Law No. 10-1953 of the said City of Yonkers, as follows:

'Section 1. In the city of Yonkers, the common council may, from time to time, on its own motion or on petition of the owners of fity per centum or more of the frontage in any district or part thereof, presented to the common council and duly signed and acknowledged requesting an amendment, supplement, change or repeal of the regulations prescribed for such district or part thereof, after public notice and hearing, amend, supplement, change or repeal the regulations and districts established under any ordinance adopted pursuant to paragraphs twenty-four and twenty-five of section twenty of the general city law. * * *'.

Now, generally speaking, the Common Council of a city, as a local legislative body, has the general delegated power to enact amendments to the city's zoning ordinance, and its action pursuant to such power is not to be questioned for irregularities in the form, contents or execution of a petition by the owners of property requesting such action or in the procedures with respect to the making and presentation of such petition. Where the council accepts a petition for a zone change as the basis for action, and duly acts thereon following a public hearing and by proper vote, 'its motives, promptings, and procedures in making the enactment are not subject to review by the court.' Homefield Ass'n of Yonkers v. Frank, 273 App.Div. 788, 75 N.Y.S.2d 384, 385.

In any event, the particular objections presented on part of plaintiffs to the petition made by the owners here are not considered to be such as to undermine the action of the councl. There is, for instance, plaintiffs' claim that the law contemplates a single petition affecting property in one particular existing district, to be signed and acknowledged by owners of a specified percentage of frontage in the district, rather than a single petition covering lands taken from a group of existing districts; and that, therefore, the petition here did not comply with the law. The petition here covered a single parcel, but it is true that such parcel was made up from lands taken from five existing districts (a 'B'--business District, an 'MG'-- multifamily residence District, and 'S-60'; 'S-75' and 'S-100'--single family residence Districts). The petition was signed only by the owners of lands located in the parcel sought to be-zoned. It also appears that the land taken from one or more of the existing districts and contained in the subject parcel has no street frontage. The plaintiffs, therefore, further claim that the petition was ineffective because, with respect to land located in certain of the districts, it was not signed by owners of any land therein having street frontage.

These specific objections to the petition are not, however, considered to be valid. The law (see above) provides that the petition, which may be presented, shall be the petition of the owners of the specified percentage of the frontage in any district 'or part thereof' to be re-zoned. Thus, the law contemplates a petition for a zone change in part of a district. The fact that the part of an existing district sought to be re-zoned has no existing street frontage is certainly no valid reason for precluding a change in its zone classification; and the law is not to be construed to require the impossible in connection with a request for a zone change appertaining to such a part of a district, namely, a petition by owners of land therein with street frontage where such part has no frontage.

There is also the plaintiffs' point that the petition by the owners for the zoning change, as referred to the Planning Board and reported on by it, was not acknowledged by the owners as allegedly required by the statutory provisions as set out above. It appears that the petition upon which the council acted, when it was received and referred to the Planning Board, was signed and verified by the owners, but not acknowledged. The Board approved the proposed zone change requested by such petition and duly so reported. Later, on advice of the corporation counsel, the property owners acknowledged an identical petition, which was filed with the council before passage of the General Ordinance effecting the zone change. Such petition, when acknowledged, was not, however, referred back to the Planning Board.

There is no specific requirement that the property owners should acknowledge the petition for a zone change before action thereon by the Planning Board. All the local Ordinance required was that 'any proposed amendment, supplement or change shall be submitted to the City Planning Board for report and recommendation prior to any action taken thereon by the Common Council.' In my opinion, the Planning Board was fully authorized to proceed to consider, and to act and report upon the proposed zone change upon the reference of a petition to it by the council, and its proceedings and report are not to be affected by defects in the manner of execution of the petition.

In any event, the council had the right, independent of any petition to legislate upon the proposed zone change, and the objections here with reference to the petition are in the category of mere irregularities which would not affect its legislative powers.

2. The requirements with respect to the holding of a public hearing in connection with the enactment of the General Ordinance were sufficiently complied with.

As noted above, it is provided that the Common Council of the city has the power to supplement, amend or change the regulations and districts established by the zoning ordinance 'after public notice and hearing.' See Chapter 722 of Laws of 1946, amended by Chapter 133 of Laws of 1947 and by Local Law No. 10 of 1953, supra. See, also, General City Law, Section 83, so providing. The Common Council did duly direct the holding of a public hearing in connection with the proposed zone change, directing that it be held at its Council Chambers in the City Hall, on April 22, 1958, at 8 P.M., and gave due notice thereof. The hearing was duly called at the time and place specified. The plaintiffs point out that the Chambers were inadequate to accommodate the number of persons desiring to be heard. It is true that the Chamber room itself was crowded to capacity at the beginning and during a greater part of the hearing with a number of interested persons standing therein and a number unable to gain admittance. Those not able to gain admittance were required to stand outside...