Voelckers v. Guelli
| Decision Date | 15 February 1983 |
| Citation | 446 N.E.2d 764,58 N.Y.2d 170,460 N.Y.S.2d 8 |
| Parties | , 446 N.E.2d 764 In the Matter of Mark VOELCKERS, Respondent, v. Frank GUELLI, as Supervisor of the Town of Walworth, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Both the recommendations of the regional planning board with respect to a proposed change of zoning and the statement of the reasons therefor prescribed by section 239-m of the General Municipal Law must be transmitted to the referring municipal agency in written form.
In this article 78 proceeding brought to annul a ruling of the individual respondent as presiding officer of the Town Board of the Town of Walworth, Wayne County, that a resolution to rezone an area had failed of passage and for a declaration that on the contrary, the resolution had been adopted, the individual respondent and the town appeal by our permission from an order of the Appellate Division affirming a Supreme Court judgment which granted the relief requested, 87 A.D.2d 1009, 450 N.Y.S.2d 249.
Petitioner, contract vendee of a 52-acre tract on Penfield Road in the Town of Walworth, on which he desired to operate an automobile salvage business, applied to the town board on March 5, 1981 for a change of zone of the subject premises from R-1 (residential) to I-1 (industrial). In accordance with section 239-m of the General Municipal Law, under which the town board was required to refer the rezoning proposal to the county planning agency, on March 9, 1981 petitioner's application was forwarded to the Wayne County Planning Board. The statute provides that:
Acting within the prescribed 30-day period, on March 26, 1981 the county planning board, by its senior planner, L. Paul Wilson, sent a letter to the town which stated only:
On April 16, 1981 the town board considered petitioner's application. Following a public hearing and after a resoluti that the application be rejected had been defeated by a vote of three opposed to the resolution with two in favor of its adoption (the full board consisting of five members), a second resolution, that the application be approved, received a consistent vote of three in favor and two opposed. The individual respondent as town supervisor presiding at the meeting declared the second resolution defeated, ruling that under section 30.91 of the town's zoning law a vote of a majority of the board plus one was required for passage. The section of the local law referred to was substantially a restatement of the portion of section 239-m of the General Municipal Law set out above. 1 The present proceeding was instituted to annul this ruling of the supervisor. The petition sought a judgment setting the ruling aside and a declaration that the resolution in favor of rezoning had been adopted, together with such other further and different relief as might be just and proper. Petitioner argues that the letter written by the county planning board on March 26, 1981 was not a disapproval activating the prescription contained in section 239-m of the General Municipal Law and in subdivision F of section 30.91 of the local law that no action contrary to the recommendation of the county planning board could be taken except by a vote of a majority of the town board plus one (here, four votes), because the recommendation contained in the letter was not "accompanied by a full statement of the reasons", as required by the cited statutory provisions. In response, the supervisor and the town rely on a showing that on March 30, four days subsequent to the letter and prior to t public hearing and meeting of the town board, its writer, Wilson, orally disclosed the reasons for the planning agency's disapproving action in a telephone conversation with respondent town supervisor.
Supreme Court rejected that reliance, concluding that strict compliance with the statutory requirement of a statement of reasons accompanying a recommendation of disapproval by the planning board was necessary. It held that, without such an accompanying statement, there had been no effective disapproval and consequently no action on the rezoning proposal by the planning agency. As a result of the planning board's failure to have acted on the proposal within the prescribed 30-day period, the town board was authorized to approve the zoning change by a simple majority vote of that body (here, three votes) (Town Law, § 63), rather than the majority plus one that would have been necessary had there been an effective disapproval by the planning agency. The judgment entered at Special Term declared that the ...
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