Opinion
June 12, 1967
Judgment of the Supreme Court, Westchester County, dated December 28, 1966 and entered in Rockland County on January 5, 1967, reversed, on the law, and petition dismissed, without costs. A new zoning ordinance became effective after the date of the judgment herein (Town of Ramapo Comprehensive Building Zone Amended Ordinance of 1966, eff. Jan. 24, 1967). The general rule is that an appellate court will decide an issue under the law as it exists on the date of the appeal ( Matter of Boardwalk Seashore Corp. v. Murdock, 286 N.Y. 494; Matter of Dengeles v. Young, 3 A.D.2d 758). Here, however, the resolution of the Town Board, dated December 29, 1966, which adopted the new zoning ordinance, specifically excluded the property in question from operation of the ordinance insofar as the judgment under review had granted rights to petitioner, pending the outcome of an appeal. Articles 46-8 and 46-30 of said ordinance sufficiently embody the saving features of the adopting resolution. We therefore determine the merits of this appeal (cf. Matter of Town Bd. of Town of Huntington v. Plonski, 13 A.D.2d 704, affd. 10 N.Y.2d 1035). Petitioner sought to compel the issuance of a variance pursuant to the provisions of Local Law No. 2 of the 1966 Local Laws of the Town of Ramapo, an interim zoning ordinance which prohibited issuance of building permits to owners of property scheduled to be rezoned as evidenced by the Interim Development Map. Petitioner's commercially zoned property was scheduled for rezoning as residential property. The variance was granted by the Town Board on September 12, 1966 without a public hearing and rescinded by said Town Board on October 12, 1966 after a public hearing. The said ordinance does not make provision for notice or public hearings on such issues. The validity of a legislative act may not be tested in a proceeding under CPLR article 78 ( Matter of Neddo v. Schrade, 270 N.Y. 97; Casterlin v. Mullin, 26 A.D.2d 629; Matter of Southern Dutchess Country Club v. Town Bd. of Town of Fishkill, 25 A.D.2d 866). Moreover where a party claims benefits under a statute he waives any attack on its validity. A party may not rely on a statute and yet attack its validity in the same proceeding ( Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 519-520; Sheperd v. Mount Vernon Trust Co., 269 N.Y. 234, 246; cf. Fahey v. Mallonee, 332 U.S. 245, 255-256). We therefore assume the validity of Local Law No. 2 of the 1966 Local Laws of the Town of Ramapo for the purpose of this appeal. Where, as here, the legislative body retains to itself the power to grant variances or special permits, such power is plenary in nature. The legislative body may review its previous decisions and change its views ( Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 24-26; Matter of Green Point Sav. Bank v. Board of Zoning Appeals of Town of Hempstead, 281 N.Y. 534; Matter of Small v. Moss, 279 N.Y. 288; Matter of Larkin Co. v. Schwab, 242 N.Y. 330, 336; Matter of Texaco v. Segur, 24 A.D.2d 692; Matter of 4M Club v. Andrews, 11 A.D.2d 720). Petitioner here seeks a variance. The record does not contain evidence of undue hardship that would warrant issuance of a variance ( Matter of Lemir Realty Corp. v. Larkin, supra, pp. 29-30; Matter of Davison v. Segur, 24 A.D.2d 797). Neither can it be said that petitioner had any vested rights ( Matter of Haussman v. Oatley, 285 App. Div. 832). We therefore are of the opinion that the Town Board had the power to rescind the variance it had previously granted. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.