Town of Bedford v. Village of Mount Kisco

306 N.E.2d 155, 33 N.Y.2d 178, 351 N.Y.S.2d 129, 1973 N.Y. LEXIS 927
CourtNew York Court of Appeals
DecidedNovember 21, 1973
StatusPublished
Cited by69 cases

This text of 306 N.E.2d 155 (Town of Bedford v. Village of Mount Kisco) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Bedford v. Village of Mount Kisco, 306 N.E.2d 155, 33 N.Y.2d 178, 351 N.Y.S.2d 129, 1973 N.Y. LEXIS 927 (N.Y. 1973).

Opinions

Jones, J.

The Town, of Bedford seeks to challenge the exercise by the Village of Mount Kisco of its zoning power with respect to village lands on the town border.

On August 19,1968 the appellant.village, Mount Kisco, adopted a resolution amending its zoning ordinance and map to change an area within the village limits from “ EBB ”, one-family residence, to “ B-6 ”, multiple, six-story residence. On August 22, 1968 the respondent town, Bedford, instituted the present article 78 proceeding in Supreme Court, Westchester County, to challenge that zoning change. Special Term granted Mount Kisco’s motion to dismiss Bedford’s petition, holding that Bed-ford did. not have standing to sue and that in any event an article 78 proceeding was not the proper proceeding to test the validity of a zoning resolution. Bedford’s motion to reargue was granted, the County of Westchester was granted leave to intervene, and on reargument Special Term adhered to its original determination.

On appeal by Bedford and the county, the Appellate Division, . Second Department, in 1970 reversed on the law and remitted the proceeding for trial, holding that Bedford did have standing to sue and that, if an article 78 proceeding was improper, the present proceeding, pursuant to CPLB 103, should be deemed an action for a declaratory judgment and continue as such. (34 A D 2d 687.) We then dismissed Mount Kisco’s motion for leave to appeal to our court on the grounds that the order of the Appellate Division was not final and that neither of the municipalities was a public board or body within the contemplation of CPLB 5602 (subd. [a], par. 2) authorizing appeal by permission even though the order appealed from is nonfinal (27 N Y 2d 725).

By stipulation of the parties and with the consent of the court, the owners (Amusas) of the only property affected by the rezoning were permitted for the first time to intervene. The County of Westchester chose thereafter not to participate further, either on trial or on appeal.

After a nonjury trial, Supreme Court, Westchester County, held that Mount Kisco’s rezoning was arbitrary and capri[183]*183cions, and contrary to the dictates of its comprehensive plan and constituted impermissible spot zoning. On appeal the Appellate Division, Second Department, in 1972 affirmed in a four-to-one decision. Mr. Justice Hopkins dissented and would have reversed and dismissed the petition (40 A D 2d 979).

The case is now before us on an appeal as of right by Mount Kisco and by the Amusos, and brings up for review both the 1972 Appellate Division order affirming the judgment of Supreme Court invalidating the rezoning and, as well, the prior interlocutory 1970 order of the Appellate Division upholding Bed-ford’s standing to sue.

The property subject to the zoning change, owned by the Amusos, is a 7.68-acre parcel located at the northwest corner of the Village of Mount Kisco. It is isolated from the rest of the village by the Saw Mill River Parkway, and is the only portion of the village which lies north of the parkway. Generally described the property is otherwise bounded on all sides by the Town of Bedford except along one street which can be reached only over Bedford roads. Supreme Court described the property as “an island within the Town of Bedford ”. The property is rural in character, and topographically it blends with the adjoining Bedford properties zoned one-acre residential and consisting of one-family homes.

Bedford instituted the article 78 proceeding in reliance on the provisions of section 452 of the Westchester County Administrative Code (L. 1948, ch. 852, as amd. by L. 1961, ch. 823) which provides:

§ 452.. Rights and duties -of neighboring municipalities in planning and zoning matters.
Each city, village or town in the county shall give notice of any hearing scheduled in said municipality in connection with (1) the proposed adoption or amendment of a zoning ordinance or the issuance of a proposed special permit or use permit changing the use classification of property located within five hundred feet of any abutting municipality in the county, (2) a subdivision plat relating to land within five hundred feet of any abutting municipality in the county, or (3) the proposed adoption or amendment of an official map, relating to any land within five hundred feet of any abutting municipality in the county, to such municipality. Such notice shall be given at least ten
[184]*184days prior to any such hearing by mail to the clerk of said abutting municipality affected. Such mailing shall be deemed sufficient service under this or any other law requiring notice of any such hearing. Such abutting municipality may appear and be heard at such hearing and may file thereat a memorandum of its position. If such abutting municipality disapproves the proposal on which the hearing is held, or recommends changes or modifications thereof, 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.”

In the first decision in Supreme Court, adhered to on reargument, Mr. Justice Doitohoe granted Mount Kisco’s motion to dismiss, and wrote:

“It is impossible to say what was meant by the quoted language [referring to the last sentence of § 452, beginning If such abutting * * * ’]. In the opinion of this court, it neither added to nor limited the law as it previously existed. It is not necessary to discuss whether this local law should be construed to amend CPLR article 78, to provide for review of legislative acts at the instance of an adjoining municipality. Section 452 is simply incapable of application. If it may be interpreted at all, it appears to mean that the existing forms of judicial review are preserved.
“ Non-property owners in a municipality have no standing to bring a proceeding under CPLR article 78 (Wood v. Freeman, 43 Misc 2d 616, affd. 24 A D 2d 104) or an action for declaratory judgment (Point Lookout Civic Assn. v. Town of Hempstead, 22 Misc 2d 757, affd. 12 A D 2d 505, affd. 9 N Y 2d 961).
“ Moreover, a legislative act may not be attacked in a proceeding under CPLR article 78.”

The Appellate Division on the first appeal in 1970 unanimously reversed Mr. Justice Donohoe on the law and denied the motion to dismiss. It wrote: “ In our opinion, section 452 of the Westchester County Administrative Code (L. 1948, ch. 852, as amd.) gives the Town of Bedford standing to seek a judicial review of the Village of Mt. Kisco’s rezoning of the [185]*185subject parcel abutting the Town of Bedford’s border. We also believe that this judicial review may properly be had. in an article 78 proceeding; and if we were to assume, arguendo, that an article 78 proceeding was procedurally improper, we would deem this proceeding an action for a declaratory judgment and continue it as such (CPLB. 103 subd. [c]).” (34 A B 2d 687.)

The case then went to trial. Supreme Court considered that the petitioner’s standing to sue had been established by the 1970 Appellate Division decision and went on to strike down the zoning change on the merits.

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Cite This Page — Counsel Stack

Bluebook (online)
306 N.E.2d 155, 33 N.Y.2d 178, 351 N.Y.S.2d 129, 1973 N.Y. LEXIS 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-bedford-v-village-of-mount-kisco-ny-1973.