Northern Operating Corp. v. Town of Ramapo

Decision Date13 May 1970
Parties, 259 N.E.2d 723 NORTHERN OPERATING CORP., Respondent, v. TOWN OF RAMAPO et al., Appellants.
CourtNew York Court of Appeals Court of Appeals

Thomas J. Newman, Suffern, and Bernard E. Stanger, New York City, for appellants.

H. Grant Warner, Pearl River, for respondent.

BERGAN, Judge.

Plaintiff owns land in the Town of Ramapo and sought approval of two subdivision plans by the Town Planning Board. It had obtained earlier approval of its plans by the board and several extensions of time to file maps, but there had been no final approval of the plans and maps when, on September 28, 1967, the board denied reapproval or an extension of time to file maps.

The board's main ground for denial was that the purported use of land was in conflict with the Town's Comprehensive Zoning and Building Ordinance as amended December 29, 1966.

Plaintiff seeks judgment declaring the amending ordinance of December 29, 1966 invalid for purported failure of the Town Board to follow formal statutory requirements. Relief on this ground is sought in plaintiff's first cause of action. The court at Special Term denied plaintiff's motion for summary judgment as to this cause of action. The Appellate Division, reversing, granted plaintiff the relief sought in that cause of action and directed judgment declaring the amended ordinance invalid.

The invalidity of the ordinance of December 29, 1966 as pleaded in the complaint is based on the allegation that the board 'failed to make an entry in the Minutes of the Town Board or incorporate and affix a copy of the Ordinance and Zoning Map into the Minutes of the Town Board'.

As to significant events concerned with the enactment of the ordinance there is, as the Appellate Division noted, no triable issue of fact. From the affidavits of both sides read together it becomes clear that the Town Board by a majority vote adopted the ordinance of December 29, 1966 with a written copy before it for consideration; that a copy of the ordinance was duly and timely published in several newspapers circulating in the town and was duly posted; that it was entered in the minutes of the board meeting by the clerk and kept by her in her official public office, available for inspection by the public. It was not, however, physically incorporated in the 'ordinance book' of the town until after October 23, 1967.

By every reasonable standard the enactment of the ordinance challenged by plaintiff fairly meets the requirements of the governing statute.

This statute (Town Law Consol.Laws, c. 62, § 264) prescribes three essential things for the enactment of a zoning ordinance: (a) that it be 'entered' in the 'minutes of the town board'; (b) that it be published in a newspaper; (c) that it be posted on the signboard.

Affidavits of such publication and posting are required to be filed with the Town Clerk. The Town Clerk (not the board) is required by section 30 of the Town Law to enter, immediately after adoption, into a book to be known as the 'ordinance book' a copy of every ordinance adopted by the board.

It seems apparent from these statutory provisions that entry in the 'minutes' referred to in section 264 is not necessarily the entry by the clerk into the 'ordinance book'. The Town Board 'minutes' undoubtedly include other things than ordinances. There is nothing in the statute regulating zoning ordinances which itself requires the 'minutes' have to be bound in the form of a 'book'.

More importantly, the neglect of a town clerk promptly to put ordinances adopted by the board in the 'ordinance book' as required by section 30 ought to be deemed a personal neglect by the clerk and should not invalidate the public action of the board itself unless there is some resulting uncertainty about what was enacted to someone's detriment.

The Town Clerk, who was present at the board meeting at which the ordinance of December 29, 1966 was adopted, swore unequivocally and in plain terms that 'the Zoning Ordinance in question was entered in the minutes of the Town Board'.

She further swore that the minutes were 'taken' at the meeting and were 'transcribed and were available in my office', i.e., the Town Clerk's office, and that the plaintiff's president, Edwin C. Stokes, came to her office and the 'minutes in question' were presented to him on several occasions. Not any of this is factually disputed by plaintiff.

What plaintiff's president says is that he inspected the minutes of the Town Clerk and did not find the ordinance 'attached to the Minute Book' until December 1, 1967 when the 'Minute Book' was produced in an examination before trial and the ordinance, as printed in the newspaper, 'was stapled to one page' of the book.

He does not deny that the ordinance was on file in the clerk's office and was made available to him. In a reply affidavit answering the clerk Mr. Stokes says, merely, that he asked the clerk to show him the 'Ordinance as it was entered into the Minute Book' and was told it was in the process of being typed. There seems here a careful avoidance of the facts to which the clerk swore, namely, that the ordinance was on file in written form in her official office and shown to Mr. Stokes.

The attorney for the plaintiff made an affidavit in which he said that the clerk had stated categorically in an examination before trial that the 'minutes' had not been 'entered in the minute book' prior to October 23, 1967 but said she kept the 'minutes in a folder'.

Thus the undisputed facts are, as it has been observed, that the minutes were written and officially filed in the proper public office available for inspection. There is no showing whatever of any discrepancy in the text filed and that enacted or that published and posted.

There are innuendos in the affidavit of the attorney for plaintiff suggesting 'several changes' in the text in the clerk's office and similar innuendos appear in Mr. Stokes' affidavit. No such discrepancies are demonstrated or even spelled out by either affiant. If a man charges misfeasance to a public officer in an official court paper he is obligated to state what the facts is.

It is not disputed that the two other requirements of section 264 of the Town Law have been met by proper publication and posting. The affidavits of...

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13 cases
  • Coutant v. Town of Poughkeepsie
    • United States
    • New York Supreme Court — Appellate Division
    • August 6, 1979
    ...ordinance be dependent upon the filing of the affidavit. This is in accord with the holding in Northern Operating Corp. v. Town of Ramapo, 26 N.Y.2d 404, 311 N.Y.S.2d 286, 259 N.E.2d 723, Supra, which treated this requirement together with that of entry in pursuance of (section 30 of the To......
  • Robson Ranch Mountains v. Pinal County
    • United States
    • Arizona Court of Appeals
    • July 18, 2002
    ...79 (10th ed.1994) (term "available" generally "is defined as `accessible, obtainable'"); cf. Northern Operating Corp. v. Town of Ramapo, 26 N.Y.2d 404, 311 N.Y.S.2d 286, 259 N.E.2d 723, 726 (1970) (ordinance on file in clerk's office is available to public). ¶ 31 "Referendum proponents must......
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    • New York Court of Appeals Court of Appeals
    • May 13, 1970
  • Schilling v. Dunne
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...fatal to the validity of the respective zoning ordinances (see, Quick v. Town of Owego, supra; Northern Operating Corp. v. Town of Ramapo, 26 N.Y.2d 404, 311 N.Y.S.2d 286, 259 N.E.2d 723; see also, North Shore Child Guidance Assn. v. Incorporated Vil. of East Hills, 110 A.D.2d 826, 828, 487......
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