Bloom v. Town Board

239-m of the General Municipal Law, and since the provisions could not be harmonized and given effect, the Administrative Code section was controlling. In Special Term’s view, both resolutions were adopted in compliance with section 451 of the Westchester County Administrative Code (Bloom v Town Bd. of Town of Yorktown, 102 Misc 2d 938 ). At issue is the necessity of the town board to comply with section 239-m of the General Municipal Law. The section originally was enacted in 1960 (see L 1960, ch 1041, § 1) as a general law (see Matter of Smithtown v Howell, 31 NY2d 365 , 375), while section 451 of the Westchester County Administrative Code, enacted by the State Legislature in 1961 (see L 1961, ch 822, § 1), is a special law (see Municipal Home Rule Law,- § 2, subd 12), which was not affected by subsequent amendments (see L 1961, ch 835, § 2; L 1968, ch 962, § 1) to section 239-m of the General Municipal Law (see Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178 , 185, n 1; cf. Matter of We’re Assoc. Co. v Bear, 35 AD2d 846 , affd 28 NY2d 981 ). Therefore, where the two sections conflict, section 451, as a special law, must prevail (see McKinney’s Cons Laws of NY, Book 1, Statutes, § 397; Board of Coop. Educational Serus., Nassau County v Goldin, 38 AD2d 267 ; Town of Pelham v Village of North Pelham 38 Misc 2d 234 ). The further question is whether the two sections can be read together. Both statutes set forth different and inconsistent procedures to achieve the same end, although each provided for county planning agency input on local land use determinations. When he approved the enactment of sections 451 and 452 of the Administrative Code, Governor Rockefeller noted that “The bills are consistent with the concept found in Sections 239-1 and 239-m of the General Municipal Law added by Chapter 1041 of the Laws of 1960” (see NY Legis Ann, 1961, pp 474, 475). However, the procedural mechanisms are distinctly different. Section 451 of the code requires that a municipality give notice of hearings on amendments to zoning ordinances which affect the use of any land in the municipality, while section 239-m of the General Municipal Law requires notice to the county planning agency where the land lies within 500 feet of municipal boundaries or county and State roads. Section 451 provides for a minimum of 10 days’ notice to the county planning board before the zoning hearing takes place so that it may take a position at the hearing, while 239-m gives the planning agency 30 days to make a recommendation before the municipal body takes final action. If the planning agency disapproves of the proposed amendment, section 451 allows the municipality to act contrary to that recommendation “by the adoption of a resolution”, while section 239-m declares that “the municipal agency having jurisdiction shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action.” We conclude that the two sections are in irreconcilable conflict, and since section 451 of the Administrative Code is a special law, it must be deemed controlling (see Board of Coop. Educational Servs., Nassau County v Goldin, supra). Applying that conclusion as to the predominance of section 451, if the county planning board’s withholding of approval of the original 42-acre rezoning is deemed a recommendation of disapproval, the town board was not required to state its reasons for acting contrary to the recommendation because section 451 contains no such requirement. Consequently, the town board’s adoption of that rezoning resolution was not improper. However, the adoption of the second rezoning resolution without written notice to the county planning board did violate section 451. Since we view that violation as jurisdictional in nature (see Matter of Asma v Curcione, 31 AD2d 883 ; Matter of Weinstein v Nicosia,

32 Misc 2d 246 , affd 18 AD2d 881 ; 1967 Opns Atty Gen 127; 1 Anderson, New York Zoning Law and Practice [2d ed], § 16.09), we conclude that the second resolution was a nullity. Defendant Darswan, Inc., the owner, argues, however, that laches bar a declaratory judgment to the latter effect. There was testimony that Darswan, Inc., has been prejudiced by unnecessary delay to the extent that it expended $400,000 to maintain and develop the property for use as a regional shopping center. Nevertheless, Special Term did not rule on the laches question and we therefore remit this proceeding to Special Term for a determination as to whether plaintiffs’ claim for relief is barred by laches (see Town of Cortlandt v Village of Peekskill, 281 NY 490 ; Village of Lynbrook v Cadoo, 252 NY 308 ). Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur. [102 Mise 2d 938.]