Town of Bedford v. Village of Mount Kisco

that the latter disapproves the proposed change, “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 ” (L. 1948, ch. 852 [Westchester County Administrative Code], as amd. by L. 1961, ch. 823 [adding new § 452]). That provision, we have held in this case, confers standing on a protesting municipality to institute judicial review of the action of a neighbor (Matter of Town of Bedford v. Village of Mount Kisco, 34 A D 2d 687 , mot. for Iv. to app. dsmd. 27 N Y 2d 725 ).^[4] But standing to bring a proceeding merely means immunity from summáry dismissal; and, in holding that Bedford could obtain review of the action of Mount Kisco in changing the zoning district of the Amuso parcel, we did not determine whether Bedford could attack the change because it was not in accordance with “ a comprehensive plan ” or was “ spot zoning ”, as Special Term has found. No resident or owner of property in Mount Kisco, or, for that matter, in Bedford, has joined Bedford in seeking the annulment of Mount Kisco’s action; and the County of Westchester, though a party, chose not to participate in the trial at Special Term. In my opinion, under these circumstances, it was incumbent on Bedford to show actual injury to itself as a municipality or to its residents by the rezoning of the Amuso parcel. It certainly is not enough that Bedford or its residents and land owners dislike the rezoning; nor would it be enough for Bedford to show that the rezoning differed from Bedford’s treatment of its land on the boundary. It is almost inevitable that zoning districts will, not be identical on opposite sides of the boundary between municipalities. Only by regional zoning, not here present, would the result of differing, and sometimes violently contrasting, zoning enactments of municipalities be avoided. I do not find on this record that Bedford established actual injury. Special Term determined that an increase in traffic on Bedford’s roads would be experienced by the erection of apartment houses on the Amuso property. It may be expected that the increase in traffic would bring about the need for greater police activity or even for more extensive repairs and improvements of Bedford’s roads than would be required if the property were not zoned for apartment' use. I do not think, however, that these conditions constitute injury to Bedford, for they are the usual burdens which rest on any municipality growing out of the development of its neighbors. Bedford did show that its territory adjacent to the property was zoned for one-family residences. There was no proof, however, that the rezoning would depreciate the value of Bedford’s land. Absent that proof, it cannot be said that Bedford’s assessments or its tax revenues would be adversely affected. Without proof of injury, Bedford cannot act as a vindicator of zoning rights at large. Otherwise,, any municipality could inquire into the exercise of zoning power by its neighbor, simply because it involved land on its border (cf. Borough of Leonia v. Borough of Fort Lee, 56 N. J. Super. 135 ; Borough of Roselle Park v. Township of Union, 113 N. J. Super. 87 ;

City of Greenbelt v. Jaeger, 237 Md. 456 ).^[1] Bedford, in brief, must show that it is damaged before it may intrude into the internal affairs of Mount "Kisco. Apart from this substantive issue, I do not find that Bedford established that the zoning of the Amuso parcel was arbitrary. That Mount Kisco did not follow its 1958 “ Comprehensive Development Plan ” in 1968 is not fatal to its action, for, as conditions change, so much planning decisions. Nor does Mount Kiseo’s failure to follow its Planning Board’s recommendation for denial render the zoning vulnerable, for the Planning Board had approved the rezoning only a. year before. The record indicates, on the contrary, that specific findings were njade by the Board of Trustees of Mount Kisco at the time which supported its action. It is apparent from the record that the Board of Trastees considered the welfare and economic stability of Mount Kisco as its first concern and there is nothing in the record that suggests- that the action taken resulted from favoritism for the owners or any other extraneous influence. Bedford understandably differed from the conclusion reached, but that difference must be regarded as the necessary result of conflicting zoning policies that are confronted at the edge of every municipality. At the least, the judgment of Mount Kisco is debatable and the court may not join in the debate by setting aside Mount Kisco’s judgment (cf. Barry v. Town of Glenville, 9 A D 2d 822 , affd. 8 N Y 2d 1153 ; Gerzof v. Town of Huntington, 8 A D 2d 841 , affd. 8 N Y 2d 788 ). I add a paragraph concerning the standard of a comprehensive plan as an essential to the exercise of zoning power. The standard comes into focus in two distinct eases; and the difference between them should be always recalled. The first case is where the landowner contends that the ordinance unreasonably restricts the use of his land. To determine whether his claim is just, it is fair to inquire whether other land in the vicinity is similarly zoned. The second case is where adjoining landowners contend that an individual landowner has been given favored treatment — “spot zoning”. To determine whether their claim is just, it is fair to inquire whether the land under scrutiny has different characteristics from the adjoining land. In this appeal, it is the latter case with which we' are dealing; and, of course, we cannot ignore the obvious fact that Bedford’s land on the boundary is different, if only because it lies in Bedford, subject to Bedford’s zoning policies, and not in Mount Kisco, where it would be subject to varying policies. For these reasons, I vote to reverse and to dismiss the petition.