Valvo v. Urban Development Corp.

• Decision Date: 05 September 1972
• Citation: 71 Misc.2d 335,336 N.Y.S.2d 32
• Parties: Doctor Carl L. VALVO, Petitioner, v. URBAN DEVELOPMENT CORPORATION and Town of Bedford, Respondents.
• Court: New York Supreme Court

Page 32

336 N.Y.S.2d 32

71 Misc.2d 335

Doctor Carl L. VALVO, Petitioner, v. URBAN DEVELOPMENT CORPORATION and Town of Bedford, Respondents.

Supreme Court, Westchester County.

Sept. 5, 1972.

Forman & Meltzer, New York City, for petitioner.

James F. Donohue, White Plains, for Town of Bedford.

Debevoise, Plimpton, Lyons & Gates (Robert L. King, New York City, of counsel), for defendant UDC.

LEONARD RUBENFELD, Justice.

In this Article 78 proceeding, petitioner seeks a judgment: (a) enjoining the New York State Urban Development Corporation (UDC) from building a proposed low-income housing project on Harris Road in the Town of Bedford (Bedford Project) and from holding any hearings with respect thereto or, in the alternative, enjoining the UDC from holding a public hearing now scheduled for September 6, 1972 with respect to said project; and (b) compelling the Town of Bedford to enforce its zoning ordinance and building regulations with respect to the proposed project.

The respondents move to dismiss the petition on a variety of grounds--principally on the basis of documentary evidence and a failure of the petition to state a cause of action (CPLR 3211(a), (1) and (7)). An application to dismiss for lack of jurisdiction based on petitioner's alleged failure to properly serve the UDC and for failure to serve the Attorney General (see CPLR 7804(c) as amended by Chapter 752 of the Laws of 1972) has been withdrawn and a written waiver of service has been obtained from the Attorney General.

Petitioner maintains that land for the Bedford Project was acquired unlawfully in that it was obtained prior to the holding of a public hearing as allegedly required by the New York State Urban Development Corporation Act (L. 1968, ch. 174, § 16, subd. 2, McK.Unconsol.Laws § 6266(2)) and, further, that such prior acquisition precludes the possibility of a fair public hearing.

The Court does not agree that a public hearing is required before the UDC may acquire real estate. Section 6266 (subdiv. 2) of McKinney's Unconsolidated Laws deals with the acquisition of a 'project'. Section 6263, dealing with the acquisition of 'real property', merely provides that the UDC may obtain such property by any lawful means 'upon making a finding that it is necessary or convenient to acquire . . . (the) real property for its immediate or future use . . ..' Moreover, section 6276, which deals with payments by UDC to municipalities in lieu of taxes, expressly provides for such payments in the case of 'real property of the corporation as to which No project findings have been made by the corporation, pursuant to section' 6260 (emphasis added). Since section 6260 findings must be made prior to the public hearing mandated by section 6266, the statute clearly contemplates the acquisition of real property prior to any public hearing (cf. Town of Greece v. Urban Development Corp., N.Y. Co. Index #17437/72, Sup.Ct., 1972).

Petitioner's contention that, by buying the land in advance of the required hearing, the UDC has committed itself to the building of the project as planned, and has foreclosed the possibility of a fair hearing, is wholly conclusory and fails to state a ground upon which relief may be granted.

Similarly, petitioner's allegation that a fair hearing is precluded because the Town of Bedford has already entered into an agreement which the UDC providing for development of the Bedford Project, is insufficient to warrant the relief requested. Section 6266 (subdiv. (2)(e)) places responsibility upon the Town Planning Board to make a recommendation of approval, disapproval or modification of the project after the public hearing has been held. The agreement does not purport to bind, and cannot bind, the Town Planning Board in the execution of its responsibilities under the statute. Moreover, the agreement, on behalf of the Town of Bedford, was entered into by the Town Board. The Town Planning Board is a separate and independent body (Town Law § 271; Op.St.Comp., 1945, p. 360; Op.St.Comp. 1967, pp. 409, 853). There is nothing to show that the members thereof will not carry out their responsibilities according to their own independent judgments of the project.

With respect to the hearing scheduled for September 6, 1972, petitioner seeks to enjoin the UDC from holding the hearing on the grounds that: (a) a copy of the project plan was not timely filed with the Town Clerk of the Town of Bedford; (b) printed digests of the general project plan were not available on request as required; and (c) the general project plan contains false information.

Section 6266 (subdiv. (2)) of the Unconsolidated Laws provides that the UDC shall file a copy of the general project plan in various places including the office of the Town Clerk; that any person shall be furnished with a digest of such plan upon request and that a notice of the filing of such plan and the availability of digests thereof shall be published not less than 30 days prior to the scheduled public hearing.

The facts...