Farwood Holding Corp v. Town Clerk of Huntington

47 A.D.2d 765, 365 N.Y.S.2d 260, 1975 N.Y. App. Div. LEXIS 9062

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1975
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78, the appeals are from a judgment of the Supreme Court, Suffolk County, entered June 4, 1974, which, after a hearing, (1) directed appellant town clerk (a) to publish a certain resolution of appellant town board and (b) to modify the town board’s minutes to reflect its adoption of the said resolution by a majority vote and (2) declared that a certain resolution adopted by appellant planning commission on December 1, 1971 is void. Judgment affirmed, with costs. The applicable procedures of the Suffolk County Charter (L. 1958, ch. 278, as amd.) were not adhered to by appellant Suffolk County Planning Commission, thus rendering its disapproval of the zoning change here in question nugatory and ineffective. Accordingly, only a majority vote of the town board was required for the adoption of the proposed zoning resolution. Since such a majority vote was achieved, Special Term correctly granted judgment as it did. The Suffolk County Charter provisions here involved were duly adopted and are, in essence, zoning regulations enacted in derogation of the common law. They should be strictly construed and adhered to by those empowered to rule within their mandate (Matter of 440 E. 102nd St. Corp. v. Murdoch, 285 IT. Y. 298, 304). As we read sections 1323, 1324, 1325 and 1326 of the Suffolk County Charter, here applicable, if the planning commission desires to disapprove a proposed zoning amendment, it must adopt a formal resolution setting forth its disapproval and stating its reasons therefor, which resolution should appear in its minutes and be submitted to the town board as an official directive. Hopkins, Acting P. J., Latham, Christ and Shapiro, JJ., concur.