Vizzi v. Town of Islip

• Decision Date: 12 October 1972
• Citation: 71 Misc.2d 483,336 N.Y.S.2d 520
• Parties: Octavius VIZZI et al., Plaintiff, v. TOWN OF ISLIP, Defendant.
• Court: New York Supreme Court

Page 520

336 N.Y.S.2d 520

71 Misc.2d 483

Octavius VIZZI et al., Plaintiff, v. TOWN OF ISLIP, Defendant.

Supreme Court, Special Term, Nassau County.

Oct. 12, 1972.

Binder, Mishkin, Stangler & Strear, Garden City, for plaintiffs.

Henry G. Wenzel III, Islip Town Atty., Islip, for defendant.

MEMORANDUM

BERTRAM HARNETT, Justice.

Three residents of the Town of Islip bring this action to declare invalid a zoning change affecting their property. They claim first, that the Town has no authority to effect a zoning change by 'reconsidering' a prior zoning resolution as it did here, and, secondly, that inadequate public notice of the proposed change was given.

In response to the property owners' motion for summary judgment, the Town moves to transfer this motion to the Supreme Court of the County of Suffolk pursuant to CPLR 505(a) which provides that 'the place of trial of an action by or against a public authority constituted under the laws of the state shall be in the county in which the authority has its principal office . . .'. However, summary judgment is not a 'trial' within the meaning of Section 505(a). That statute therefore does not apply here. Since any motion may be heard '. . . in a county adjoining the county where the action is triable' CPLR 2212(a), plaintiffs' motion for summary judgment is properly before this Court.

The Town does not contradict any of the factual allegations made by plaintiffs, but merely disagrees with the legal conclusions. Only the legality and not the occurrence of the procedure followed and notices given is in dispute. Under such circumstances, summary judgment procedure is applicable. CPLR 3212(b); Northern Operating Corp. v. Town of Ramapo, 31 A.D.2d 822, 297 N.Y.S.2d 777; Binninger v. Grillo, 28 A.D.2d 1100, 284 N.Y.S.2d 189; Cf. Knatler v. M & M Affiliates, Inc., 31 A.D.2d 722, 297 N.Y.S.2d 195.

On March 20, 1969, the Islip Town Board passed a resolution changing the zoning of the subject premises to a Residence CA District appropriate for the building of garden apartments. The Town's later rescission of this resolution was invalidated by the late Mr. Justice Ritchie because of procedural defects, see, N.Y.L.J., December 30, 1971, p. 17, col. 3, resulting then in a declaration that the Residence CA zoning classification continued to be in effect.

On February 4, 1972, the Town again began procedures to rescind the Residence CA garden apartment classification by publishing a notice stating:

' . . . that the Town Board of the Town of Islip will hold a public hearing on March 2, 1972, at 7:30 P.M., at the Town Hall, Islip, New York, To reconsider on its own motion the resolution dated March 20, 1969, made on the application of Nathan Houseman (T.C. No. 1846) To change the zone from Residence AAA District as shown on the West Sayville-Oakdale Amended Zoning Map No. 5 to Residence CA District of all or part of the following described parcel(s) of land'. (Emphasis supplied).

After the public hearing was held, by resolution dated April 4, 1972, the Town changed the zoning of plaintiffs' property back from Residence CA to Residence AAA, in effect reversing the 1969 resolution.

The use of the term 'reconsideration' does not, of itself, invalidate an otherwise proper zoning change. Town Law, § 264 provides in pertinent part:

'The town board shall provide for the manner in which such (zoning) regulations and restrictions and the boundaries of such districts shall be determined, established and enforced, and from time to time amended, supplemented or changed'.

Here, the reconsideration of a prior resolution accomplished a 'change' in the present zoning regulations which the town board had authority to do under the broad powers delegated by statute, so long as the requisite statutory procedures were followed. Accordingly, the Town did not act improperly by 'reconsidering' its prior resolution.

The validity of the Town's procedures hinges then on whether the notice given to the public complied with statutory requirements. Inasmuch as zoning powers are delegated by the State Legislature to local governing bodies, their exercise must be in strict compliance with the statutory procedures prescribed. Merritt v. Village of Portchester, 71 N.Y. 309; Village of Williston Park v. Israel, 191 Misc. 6, 76 N.Y.S.2d 605, affd. 276 App.Div. 968, 94 N.Y.S.2d 921, mo. for lv. to app. den., 276 App.Div. 1013, 95 N.Y.S.2d 602, affd. 301 N.Y. 713, 95 N.E.2d 208. Town Law, § 264 states in the sentence immediately following the one quoted above:

'However, no such regulation, restrictions or boundary shall become effective until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least ten days' notice of the time and place of such hearing shall be published in a paper of general circulation . . .'.

Section 68--423 of the Code of the Town of Islip, after recognizing the authority of the Town Board to change its zoning map states:

'The Town Board by resolution adopted at a stated meeting shall fix the time and place of a public hearing on the proposed amendment and cause ten days' public notice thereof to be given stating the purpose of the proposed amendment'.

The published notice is the fundamental vehicle for communicating to the public any local legislative changes which affect residential interests. It may be the only informational source that warns local property owners of zoning changes affecting their land's use and value, either adversely or beneficially, directly or...