Town of Bedford v. Village of Mount Kisco

• Decision Date: 21 November 1973
• Citation: 33 N.Y.2d 178,306 N.E.2d 155,351 N.Y.S.2d 129
• Parties: , 306 N.E.2d 155 In the Matter of the TOWN OF BEDFORD, Respondent, v. VILLAGE OF MOUNT KISCO, Appellant, Dominic A. Amuso et al., Intervenors- Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 129

351 N.Y.S.2d 129

33 N.Y.2d 178, 306 N.E.2d 155

In the Matter of the TOWN OF BEDFORD, Respondent, v. VILLAGE OF MOUNT KISCO, Appellant, Dominic A. Amuso et al Intervenors- Appellants.

Court of Appeals of New York.

Nov. 21, 1973.

Charles G. Moerdler, Vivienne W. Nearing, and Nathan Z. Dershowitz, New York City, for intervenors-appellants.

Anthony J. Monteleone, Mt. Kisco, for appellant.

James F. Donohue, White Plains, Joseph J. Buderwitz, Jr., Mount Vernon, and Thomas J. Stevens, White Plains, on the brief, for respondent.

JONES, Judge.

The Town of Bedford seeks to challenge the exercise by the Village of Mount Kisco of its zoning power with respect to village lands on the town border.

On August 19, 1968 the appellant village, Mount Kisco, adopted a resolution amending its zoning ordinance and map to change an area within the village limits from 'RRR', one-family residence, to 'R--6', multiple, six-story residence. On August 22, 1968 the respondent town, Bedford, instituted the present article 78 proceeding in Supreme Court, Westchester County, to challenge that zoning change. Special Term granted Mount Kisco's motion to dismiss Bedford's petition, holding that Bedford did not have standing to sue and that in any event an article 78 proceeding was not the proper proceeding to test the validity of a zoning resolution. Bedford's motion to reargue was granted, the County of Westchester was granted leave to intervene, and on reargument Special Term adhered to its original determination.

On appeal by Bedford and the county, the Appellate Division, Second Department, in 1970 reversed on the law and remitted the proceeding for trial, holding that Bedford did have standing to sue and that, if an article 78 proceeding was improper, the present proceeding, pursuant to CPLR 103, should be deemed an action for a declaratory judgment and continue as such. (34 A.D.2d 687, 312 N.Y.S.2d 617.) We then dismissed Mount Kisco's motion for leave to appeal to our court on the grounds that the order of the Appellate Division was not final and that neither of the municipalities was a public board or body within the contemplation of CPLR 5602 (subd. (a), par. 2) authorizing appeal by permission even though the order appealed from is nonfinal (27 N.Y.2d 725, 314 N.Y.S.2d 533, 262 N.E.2d 673).

By stipulation of the parties and with the consent of the court, the owners (Amusos) of the only property affected by the rezoning were permitted for the first time to intervene. The County of Westchester chose thereafter not to participate further, either on trial or on appeal.

After a nonjury trial, Supreme Court, Westchester County, held that Mount Kisco's rezoning was 'arbitrary and capricious, and contrary to the dictates of its comprehensive plan'; and constituted impermissible spot zoning. On appeal the Appellate Division, Second Department, in 1972 affirmed in a four-to-one decision. Mr. Justice Hopkins dissented and would have reversed and dismissed the petition (40 A.D.2d 979, 338 N.Y.S.2d 447).

The case is now before us on an appeal as of right by Mount Kisco and by the Amusos, and brings up for review both the 1972 Appellate Division order affirming the judgment of Supreme Court invalidating the rezoning and, as well, the prior interlocutory 1970 order of the Appellate Division upholding Bedford's standing to sue.

The property subject to the zoning change, owned by the Amusos, is a 7.68-acre parcel located at the northwest corner of the Village of Mount Kisco. It is isolated from the rest of the village by the Saw Mill River Parkway, and is the only portion of the village which lies north of the parkway. Generally described the property is otherwise bounded on all sides by the Town of Bedford except along one street which can be reached only over Bedford roads. Supreme Court described the property as 'an island within the Town of Bedford'. The property is rural in character, and topographically it blends with the adjoining Bedford properties zoned one-acre residential and consisting of one-family homes.

Bedford instituted the article 78 proceeding in reliance on the provisions of section 452 of the Westchester County Administrative Code (L.1948, ch. 852, as amd. by L.1961, ch. 823) which provides:

' § 452. Rights and duties of neighboring municipalities in planning and zoning matters.

'Each city, village or town in the county shall give notice of any hearing scheduled in said municipality in connection with (1) the proposed adoption or amendment of a zoning ordinance or the issuance of a proposed special permit or use permit changing the use classification of property located within five hundred feet of any abutting municipality in the county, (2) a subdivision plat relating to land within five hundred feet of any abutting municipality in the county, or (3) the proposed adoption or amendment of an official map, relating to any land within five hundred feet of any abutting municipality in the county, to such municipality. Such notice shall be given at least ten days prior to any such hearing by mail to the clerk of said abutting municipality affected. Such mailing shall be deemed sufficient service under this or any other law requiring notice of any such hearing. Such abutting municipality may appear and be heard at such hearing and may file thereat a memorandum of its position. If such abutting municipality 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 the municipal agency, which action shall be subject to judicial review pursuant to the law providing for review of acts of such municipal agencies, commenced within thirty days of its adoption.'

In the first decision in Supreme Court, adhered to on reargument, Mr. Justice Donohoe granted Mount Kisco's motion to dismiss, and wrote:

'It is impossible to say what was meant by the quoted language (referring to the last sentence of § 452, beginning 'If such abutting * * *'). In the opinion of this court, it neither added to nor limited the law as it previously existed. It is not necessary to discuss whether this local law should be construed to amend CPLR article 78, to provide for review of legislative acts at the instance of an adjoining municipality. Section 452 is simply incapable of application. If it may be interpreted at all, it appears to mean that the existing forms of judicial review are preserved.

'Non-property owners in a municipality have no standing to bring a proceeding under CPLR article 78 (Wood v. Freeman, 43 Misc.2d 616, 251 N.Y.S.2d 996, affd. 24 A.D.2d 704, 262 N.Y.S.2d 431) or an action for declaratory judgment (Point Lookout Civic Ass'n v. Town of Hempstead, 22 Misc.2d 757, 200 N.Y.S.2d 925, affd. 12 A.D.2d 505, 207 N.Y.S.2d 121, affd. 9 N.Y.2d 961, 217 N.Y.S.2d 227, 176 N.E.2d 203).

'Moreover, a legislative act may not be attacked in a proceeding under CPLR article 78.'

The Appellate Division on the first appeal in 1970 unanimously reversed Mr. Justice Donohoe on the law and denied the motion to dismiss. It wrote: 'In our opinion, section 452 of the Westchester County Administrative Code (L.1948, ch. 852, as amd.) gives the Town of Bedford standing to seek a judicial review of the Village of Mt. Kisco's rezoning of the subject parcel abutting the Town of Bedford's border. We also believe that this judicial review may properly be had in an article 78 proceeding; and if we were to assume, Arguendo, that an article 78 proceeding was procedurally improper, we would deem this proceeding an action for a declaratory judgment and continue it as such (CPLR 103 subd. (c)).' (34 A.D.2d 687, 312 N.Y.S.2d 617.)

The case then went to trial. Supreme Court considered that the petitioner's standing to sue had been established by the 1970 Appellate Division decision and went on to strike down the zoning change on the merits.

In the Appellate Division on the second appeal the majority affirmed without opinion. Mr. Justice Hopkins dissented on the ground that, while the town had technical standing to sue under section 452, its present application must fail both because the town had shown no actual injury either to the municipality or to its residents and because, in his view, the zoning change was valid on the merits.

We first hold that by reason of the provisions of section 452 of the Westchester Administrative Code, the Town of Bedford had standing to challenge the zoning action of the Village of Mount Kisco. There was no need to show actual injury. In other words, where, as here, there is a specific statutory grant of standing to challenge an adjacent municipality's zoning actions, there is neither need nor requirement that the ordinance occasion pecuniary damage or other hardship; implicit in the legislative determination to confer standing is the decision that the potential for injury exists in the fact that the town actually abuts the land affected by the ordinance in question. (See, e.g., Koppel v. City of Fairway, 189 Kan. 710, 713--714, 371 P.2d 113; Borough of Roselle Park v. Township of Union, 113 N.J.Super. 87, 272 A.2d 762.) ¹

We come then to consideration of Bedford's challenge to the zoning change on the merits. It is useful to detail the history of this zoning change.

The Amusos, intervenors herein, as the property owners, on May 2, 1968 made application to the Board of Trustees of the Village of Mount Kisco to rezone their property from 'RRR' to 'R--6'. That application was referred to the Village Planning Board on May 6. The Planning Board held a public meeting on May 23, and on June 20 recommended that the application be denied. The Board of Trustees on proper notice then held a public hearing on July 22 with respect to the application. At that hearing, the Town Board of Bedford, based on recommendations of its own ...