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Town of North Hempstead v. Village of North Hills

38 N.Y.2d 334 Court N.Y. Decision date 1975-12-29 English

Delivered by Jasen, J.

Contents

Majority

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Town of North Hempstead, Appellant, v Village of North Hills et al., Respondents, and Ranier E. Gut et al., Intervenors-Respondents. In the Matter of William E. Ruggiero et al., Appellants, v J. Peter Grace et al., Constituting the Board of Trustees of the Incorporated Village of North Hills, Respondents, and Ranier E. Gut et al., Intervenors-Respondents.
Argued November 20, 1975;
decided December 29, 1975
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Francis F Doran, Town Attorney (Patrick J. Rohan and Michael P. Sanchirico) for appellant in the first above-entitled matter.
I. Plaintiff town has standing to contest illegal actions of the trustees of a village within its borders where such actions will cause extensive ecological and other damages to the complaining town. (United States v SCRAP, 412 US 669 ; Matter of Smithtown v Howell, 31 NY2d 365 ; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359 ; Matter of Pearson Kent Corp. v Bear, 28 NY2d 396 ; Matter of Nattin Realty v Ludewig, 40 AD2d 535 , 32 NY2d 681 ; Matter of Fulling v Palumbo, 21 NY2d 30 ; Matter of Walsh v Spadaccia, 73 Misc 2d 866 ; Bloom v Town Bd. of Town of Oyster Bay, 41 AD2d 533 ; Township of Riv. Vale v Town of Orangetown, 403 F2d 684 .) II. Plaintiff town has standing to challenge
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corruption and/or conflict of interest within its borders and such conduct cannot be shielded from judicial scrutiny by labeling it "legislative motive”. (Matter of Sanders v Davidson, 258 App Div 1058 , 284 NY 780 ; Matter of Sarber Realty Corp. v Silver, 25 Misc 2d 261 ; Gellis v Clark, 32 Misc 2d 597 ; Matter of Taub v Pirnie, 3 NY2d 188 ; Smith v Morgan, 167 Misc 815 , 254 App Div 672 , 278 NY 667 .) III. Village Law (§ 7-706) constitutes no bar to the present action, since plaintiff town does not seek review of any zoning determination, but instead contends that there is no valid zoning law in effect. Matter of Town of Bedford v Village of Mount Kisco, 40 AD2d 979 , 33 NY2d 178 ; Matter of Town of Smithtown v Howell, 31 NY2d 365 ; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359 ; Matter of City of Glen Cove v Buxenbaum, 17 AD2d 828 .) IV. Plaintiff town was effectively denied its right to be heard, pursuant to the terms of Village Law (§ 7-706), when its request for a reasonable period of time to submit additional data was denied. V. The Zoning Ordinance of North Hills, on its face, violates the terms of Village Law (§ 7-738), was not adopted pursuant to a comprehensive plan, and is detrimental to public health, welfare and safety. (Van Deusen v Jackson, 35 AD2d 58 , 28 NY2d 608 .)
John P. Cleary, George C. Pratt and Samuel S. Tripp for Village of North Hills, respondent in the first above-entitled matter.
I. Appellant is barred by Village Law (§ 7-706) from maintaining this court action to review respondent’s zoning amendments. (Rodgers v Tarrytown, 302 NY 115 ; Matter of Smithtown v Howell, 31 NY2d 365 ; Matter of We’re Assoc. Co. v Bear, 35 AD2d 846 , 28 NY2d 981 ; Matter of Town of Bedford v Village of Mount Kisco, 40 AD2d 979 , 33 NY2d 178 .) II. Appellant did not allege facts showing that appellant has standing or is a person aggrieved by respondent’s action. Marcus v Village of Mamaroneck, 283 NY 325 ; Stark v Scudder, 33 AD2d 519 ; Matter of Haber v Board of Estimate of City of N. Y., 33 AD2d 571 ; Brechner v Incorporated Vil. of Lake Success, 25 Misc 2d 920 ; Isen Contr. Corp. v Town of Oyster Bay, 279 App Div 1010 ; Matter of Village of Russell Gardens v Board of Zoning & Appeals of Town of North Hempstead, 30 Misc 2d 392 ; Tata v Town of Babylon, 52 Misc 2d 667 ; Twenty-One White Plains Corp. v Village of Hastings-on-Hudson, 14 Misc 2d 800 , 9 AD2d 934 ; Point Lookout Civic Assn. v Town of Hempstead, 22 Misc 2d 757 , 12 AD2d 505 , 9 NY2d 961 .) III. The motives of a legislative body may not be
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the subject of judicial inquiry in determining the validity of legislation. (Kittinger v Buffalo Traction Co., 160 NY 377 ; Burack v Town of Poughkeepsie, 32 AD2d 806 ; People ex rel. Wood v Draper, 15 NY 532 .) IV. Appellant was not denied its right to be heard, a right accorded by the provision of section 7-706 of the Village Law.
Arden H. Rathkopf for intervenors-respondents in the first above-entitled matter.
I. Village Law (§ 7-706) deprives plaintiff Town of North Hempstead of standing to sue. (Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178 ; People v Scott, 26 NY2d 286 ; Matter of Perry v Town of Cherry Val., 307 NY 427 ; Matter of Bon-Air Estates v Building Inspector of Town of Ramapo, 31 AD2d 502 ; Wells v Town of Salina, 119 NY 280 ; Incorporated Vil. of Brookville v Paulgene Realty Corp., 24 Misc 2d 790 , 14 AD2d 575 , 11 NY2d 672 ; People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Woodbury, 208 NY 421 ; Gillespie v Zittlosen, 60 NY 449 ; Meltzer v Koenigsberg, 302 NY 523 ; Bright Homes v Wright, 8 NY2d 157 .) II. There is only one question involved in this case and that is whether appellant town has standing to bring an action. (Johnson v Western Union Tel. Co., 293 NY 379 ; Milner Co. v Noudar, Lda., 24 AD2d 326 .) III. Appellant town relies upon the trend toward environmental impact statements. (Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359 ; Matter of Smithtown v Howell, 31 NY2d 365 ; Matter of Pearson Kent Corp. v Bear, 28 NY2d 396 ; Matter of Nattin Realty v Ludewig, 40 AD2d 535 ; Matter of Fulling v Palumbo, 21 NY2d 30 ; Rodgers v Village of Tarrytown, 302 NY 115 ; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1 .)
Donald A. Walsh for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first above-entitled matter.
I. The Town of North Hempstead has no standing to sue under statutory procedure provided by Village Law (§ 7-706) and the application in fact of this procedure in the instant case. (Rose v Himely, 4 Cranch [8 US] 241.) II. The town’s assertion that the Ordinance of the Village of North Hills is invalid flies in the face of fundamental principles governing the powers and jurisdiction of municipalities. (City of New Rochelle v State of New York, 34 Misc 2d 454 ; Springfield Fire & Mar. Ins. Co. v Village of Keeseville, 148 NY 46 ; Schwab v Graves, 221 App Div 357 ; Belden v City of
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Niagara Falls, 136 Misc 406 , 230 App Div 601 ; Chase v Glen Cove, 34 Misc 2d 810 ; City of Sedalia v Shell Petroleum Corp., 81 F2d 193 ; City of Buffalo v International Bus Corp., 144 Misc 662 .) III. The Village of North Hills has jurisdiction and, therefore exclusive discretion, in planning and zoning determinations within its territorial boundaries. IV. The Town of North Hempstead’s assertion of a conflict of interest by the Board of Trustees of the Village of North Hills in enacting the zoning amendment does not fall within the criteria of conflict of interest in an application for zone change as defined by the State Legislature in General Municipal Law (§ 809).
Patrick J. Rohan, John M. Farrell, Jr., and Michael P. Sanchirico for appellants in the second above-entitled matter.
I. That part of the zoning ordinance authorizing the R-CL cluster residence district as a floating zone is exclusionary and unconstitutionally discriminatory. (Rodgers v Village of Tarry-town, 302 NY 115 ; Thomas v Town of Bedford, 11 NY2d 428 ; Tata v Town of Babylon, 52 Misc 2d 667 ; Rogers v North Amer. Philips Co., 37 Misc 2d 923 ; Matter of Dexter v Town Bd. of Town of Gates, 68 Misc 2d 293 ; Udell v Haas, 21 NY2d 463 ; Matter of 4M Club v Andrews, 11 AD2d 720 .) II. Conflict of interest on the part of public officials raises a constitutional issue, where the same results in direct damage to individual citizens. (Meinhard v Salmon, 249 NY 458 ; Matter of Sanders v Davidson, 258 App Div 1058 , 284 NY 780 ; Matter of Sarber Realty Corp. v Silver, 25 Misc 2d 261 ; Matter of Gellis v Clark, 32 Misc 2d 597 ; Matter of Taub v Pirnie, 3 NY2d 188 ; Turney v Ohio, 273 US 510 ; Matter of Smith v Morgan, 167 Misc 815 , 254 App Div 672 , 278 NY 667 .) III. Intervenor-respondents failed to comply with the mandatory standards in the zoning ordinance imposed by the board as conditions for rezoning under section 4.5 of the Zoning Ordinance. (Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160 ; Keeney v Village of LeRoy, 22 AD2d 159 ; Matter of Tannenbaum v Incorporated Vil. of Thomaston, 29 Misc 2d 511 ; Village of Mill Neck v Nolan, 233 App Div 248 , 259 NY 596 ; Albright v Town of Manlius, 34 AD2d 419 ; Incorporated Vil. of Is. Park v J. E. B. Assoc., 21 Misc 2d 249 ; Matter of Bar Harbour Shopping Center v Andrews, 23 Misc 2d 894 ; Matter of Sun Oil Co. v Young, 37 AD2d 969 ; Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20 .) IV. The board’s action in approving the change of zone was arbitrary and capricious.
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John P. Cleary for respondents in the second above-entitled matter.
I. R-CL cluster provision is neither exclusionary nor unconstitutionally discriminatory. II. The conflict of interest point is without merit. (Tumey v Ohio, 273 US 510 ; Kittinger v Buffalo Traction Co., 160 NY 377 ; Burack v Town of Poughkeepsie, 32 AD2d 806 ; People ex rel. Wood v Draper, 15 NY 532 ; Nappi v La Guardia, 184 Misc 775 ; Point Lookout Civic Assn. v Town of Hempstead, 22 Misc 2d 757 , 11 AD2d 731 , 12 AD2d 505 , 9 NY2d 961 .) III. Procedure of respondents in granting the Gut application for a change of zone was not defective. (Village of Mill Neck v Nolan, 233 App Div 248 , 259 NY 596 ; Albright v Town of Manlius, 34 AD2d 419 ; Bloom v Town of Oyster Bay, 32 NY2d 930 ; Miner v City of Yonkers, 19 Misc 2d 321 , 9 AD2d 907 .) IV. Respondents’ action in granting the Gut application for a change of zone was not arbitrary or capricious. (Le Roux v State of New York, 307 NY 397 .)
Arden H. Rathkopf for intervenors-respondents in the second above-entitled matter.
I. Section 4.5 of the North Hills Zoning Ordinance is compatible with the comprehensive plan. (Rodgers v Village of Tarrytown, 302 NY 115 ; Thomas v Town of Bedford, 11 NY2d 428 ; Udell v Haas, 21 NY2d 463 ; Nappi v La Guardia, 184 Misc 775 , 269 App Div 693 , 295 NY 652 ; Rogers v North Amer. Philips Co., 37 Misc 2d 923 .) II. Limitation of the R-CL district to parcels of four or more acres is not unconstitutionally discriminatory. (Rodgers v Village of Tarry-town, 302 NY 115 .) III. There was no conflict of interest in the enactment of section 4.5 of the ordinance. IV. The grant of the Gut application was not impaired by procedural defects. (Matter of Bar Harbour Shopping Center v Andrews, 23 Misc 2d 894 ; Matter of Sun Oil Co. v Young, 37 AD2d 969 ; Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20 .) V. The board’s action in approving the change of zone was neither arbitrary nor capricious. (Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249 .)

In the first of these consolidated appeals (Town of North Hempstead v Village of North Hills), the Town of North Hempstead seeks a judgment declaring a zoning ordinance and amendment adopted by the Village of North Hills to be unconstitutional, and enjoining village officials from authorizing or permitting construction on any parcel of land benefited by the challenged ordinance and amendment. Special Term granted the village’s motion to dismiss the com

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plaint on the ground that the town lacks standing to commence such an action. In the second appeal (Matter of Ruggiero v Grace), certain individual property owners seek a judgment pursuant to CPLR article 78 annulling the determination made by the board of trustees of the village in rezoning a particular parcel under this same ordinance, and declaring a portion of the ordinance to be unconstitutional. Special Term also dismissed this petition on the ground that the individual property owners lack standing, but at the same time indicated that even if they had standing, the petition would be dismissed on the merits. On consolidated appeals, the Appellate Division affirmed both judgments, but indicated that it did not approve of the conclusion that the property owners in Matter of Ruggiero had no standing. We would affirm that order affirming both judgments.

We agree with the conclusion reached in the courts below in Town of North Hempstead that the town lacks standing to challenge this ordinance and amendment. Subdivision 1 of section 7-706 of the Village Law provides in relevant part that "written notice of any proposed [zoning] change or amendment affecting property within five hundred feet of the boundaries of any * * * town * * * shall be given * * * to the clerk of such * * * town * * * at least ten days prior to the date of such public hearing. Such * * * town * * * shall have the right to appear and to be heard at such public hearing with respect to any such proposed change or amendment, but shall not have the right of review by a court as hereinafter provided.”[1] The town does not contend that the village failed to give it the required notice either in 1970 when the challenged ordinance was originally adopted or in 1974 when certain property was rezoned pursuant to the terms of that ordinance. Since we can assume, therefore, that the village fulfilled the requirements of section 7-706, we hold that the town is prohibited from seeking judicial review by the express terms of the statute.

The town would instead have us ignore the unequivocal language of section 7-706 and grant it standing by extending the rationale of such cases as United States v SCRAP ( 412 US 669 ), Sierra Club v Morton ( 405 US 727 ), and Matter of Douglaston Civic Assn. v Galvin ( 36 NY2d 1 ), which broadened

1 We reject the town’s argument, that the consequence of the final words of the subdivision, "as hereinafter provided”, should be to limit the prohibition of judicial review only in an article 78 proceeding, as hypertechnical and unduly restrictive.

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standing in at least environmental[2] and zoning matters. Significantly, however, those and similar cases did not involve a statutory denial of standing, and that distinction is fatal to the town’s claim.[3]

Nor does Matter of Town of Bedford v Village of Mount Kisco ( 33 NY2d 178 , 185) lend any support to the town’s argument. In that case, section 452 of the Westchester County Administrative Code contained a "specific statutory grant of standing to challenge an adjacent municipality’s zoning actions”. Here, however, there is no such code or charter provision that would make the denial of standing in section 7-706 inapplicable to zoning matters in Nassau County. Likewise, Township of Riv. Vale v Town of Orangetown ( 403 F2d 684 ) does not bolster the town’s argument. That case involved a challenge in Federal court by a New Jersey township to a zoning change in an area of a New York town contiguous to the New Jersey township’s border. In such a situation, section 264 of the Town Law (the counterpart of Village Law, § 7-706, subd 1) obviously would not prevent a township in another State from attacking in Federal court a New York town’s zoning change.

We have recently said that "in enacting a zoning ordinance, consideration must be given to regional needs and requirements” because "zoning often has a substantial impact beyond the boundaries of the municipality.” (Berenson v Town of New Castle, 38 NY2d 102 , 110.) Rather than burden the courts with the tasks of a regional planner, we invited the Legislature (p 111) to "make appropriate changes in order to foster the development of programs designed to achieve sound regional planning.” Our refusal today to grant the Town of North Hempstead standing, since it is based upon a specific statutory denial, is not inconsistent with the view we expressed in Berenson.

Although we must therefore dispose of Town of Nort. Hempstead on the standing issue, no such bar in Matter oí

2 The town claims that the zoning ordinance and amendment will cause it extensive ecological damage.

3 We note that there is no consensus in the courts of other States as to whether municipalities have standing to challenge zoning of land lying outside its borders where there is no statute specifically governing standing. (See Standing of Municipal Corporation or Other Governmental Body to Attack Zoning of Land Lying Outside Its Borders, Ann., 49 ALR3d 1126 .) Since that issue is not before us, we express no opinion as to whether the town would have standing in the absence of section 7-706.

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Ruggiero prevents us from reaching the merits of this controversy.[4] Following a two-year study and review of the existing zoning in the village, and after three public hearings, the Board of Trustees of the Village of North Hills in 1970 enacted a revised Building Zone Ordinance. Among the districts established by the ordinance was a "Cluster Residence, R-CL District”. This was a "floating zone” whose boundaries were not fixed in the original ordinance, but were to be established by later amendments to the zoning map. Any property in the R-2 district (in which single-family detached dwellings on plots of at least two acres were permitted) could potentially be rezoned tó R-CL if certain requirements were met. Among those requirements were a minimum plot size of four acres. Permitted uses were limited to single-family dwellings in detached, semi-attached or attached (townhouse) structures, with overall density limited to four families per acre.[5] Following a public hearing, an application made by the intervenor-respondent Gut was approved by the board in 1974, making the Gut parcel the first to be rezoned R-CL. Thereafter, the petitioners, owners of properties which abut or are

4 Although the trial court denied standing in Matter of Ruggiero, the Appellate Division disapproved of that much of the determination. Since the standing issue was not, raised in this appeal, we do not express an opinion in that regard.

5 Section 4.56 of the ordinance sets out the requirements in detail: "a. Permitted uses shall be limited to single family dwellings in detached, semi-attached or attached (town house) structures. "b. The area of the site shall be at least 4 acres of contiguous property not traversed by streets. "c. The overall density of a cluster development shall not exceed 4 families per gross acre. "d. Every dwelling unit shall have access to a street, court, walkway or other accessway designed for public use through dedication, easement or right of way. "e. At least 50% of the total area of the property shall be allocated for park or other common open space or recreational use. "f. The minimum floor area of a dwelling unit shall be 1,200 square feet. "g. No detached or semi-detached structure shall be erected within 24 feet of any other; no row house structure shall be erected within 40 feet of any other. "h. Each row structure shall contain at least 4 and not more than 10 dwelling units. "i. Every dwelling unit shall be located on and within a lot which shall be duly dimensioned and designated as the owner’s area of responsibility. "j. No structure shall exceed a height of 2ió stories or 35 feet. "k. No structure shall be sited to front within 150 feet of a major State or County highway. "1. There shall be at least 1 enclosed and 1 surface on-site parking space for each dwelling.”

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located near the Gut parcel, commenced this article 78 proceeding.

The principal contention is that the part of the zoning ordinance authorizing the R-CL district as a floating zone is exclusionary and unconstitutionally discriminatory. The basis for this claim is that petitioner Ruggiero and other property owners whose parcels do not meet the four-acre requirement are frozen into the R-2 district, whereas owners of larger parcels may apply for the R-CL classification.

We first approved the use of floating zones in Rodgers v Village of Tarrytown ( 302 NY 115 , 122-123). In that case this court dismissed a similar argument with the following statement: "As to the requirement that the applicant own a plot of at least ten acres, we find nothing therein unfair to plaintiff or other owners of smaller parcels.' The board undoubtedly found, as it was privileged to find, that garden apartments would blend more attractively and harmoniously with the community setting, would impose less of a burden upon village facilities, if placed upon larger tracts of land rather than scattered about in smaller units. Obviously, some definite acreage had to be chosen, and, so far as the record before us reveals, the choice of ten acres as a minimum plot was well within the range of an unassailable legislative judgment.” We have no difficulty in this case with the four-acre requirement established by the village. Certainly this makes the R-CL classification potentially available to a larger class of property owners than would, for example, the 10-acre minimum approved in Rodgers. Indeed, petitioners’ claim that the R-CL classification is unavailable to only seven owners of property presently zoned R-2 serves only to bolster the contrary view that the ordinance is neither impermissibly exclusionary nor unconstitutionally discriminatory.

Petitioners make one further attempt to distinguish Rodgers. They point out that in Rodgers any area in the village might make application to be included in the floating zone (provided, of course, the other requirements were met), whereas in this case, the R-CL classification may be applied only to parcels presently zoned R-2. We find that distinction to be of no significance here, especially since it appears that 80% of the land in the Village of North Hills presently is in the R-2 zone.

We also reject the claim that the challenged amendment was not "in accordance with a comprehensive plan” as re

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quired by section 7-704 of the Village Law. Nothing in the record suggests that there has been anything here other than "comprehensiveness of planning, rather than special interest, irrational ad hocery. ” (Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178 , 188, supra.)

Nor do we find any merit to petitioners’ contention that the individual members of the board acted in an apparent conflict of interest in approving the ordinance and the amendment. None of the members owns any interest in the Gut parcel which was reclassified. Rather, the basis for this claim is that several of the members own parcels of real estate which meet the four-acre requirement and might, therefore, be reclassified R-CL at some future date. This claim is at best speculative. Petitioners do not argue that there has been a lack of compliance with section 809 of the General Municipal Law which sets out the applicable rules for disclosure in conflict of interest situations. Since it appears that most of the real property in the village meets the acreage requirements for reclassification, petitioners’ argument would make all but a handful of property owners in the village ineligible to sit on the board in such matters.[6]

For the foregoing reasons, the order of the Appellate Division should be affirmed in all respects.

Chief Judge Breitel and Judges Gabrielli, Jones, Fuchs-berg and Cooke concur; Judge Wachtler taking no part.

In each case: Order affirmed, with costs.

6 We note that the Attorney-General has indicated that the failure to make proper disclosure of a conflict of interest would not, per se, invalidate an amendment to a zoning ordinance where all necessary procedural steps had been complied with. (1974 Atty Gen [Inf Opns] 106.)

Cases cited

Statutes and regulations cited