Summary
In We're, the Nassau County Planning Commission vetoed a town zoning change relying on the Nassau County Government Law enacted in 1936.
Summary of this case from Matter of Smithtown v. HowellOpinion
November 30, 1970
Consolidated proceedings under article 78 of the CPLR to annul a determination of the Nassau County Planning Commission which disapproved a change of zone adopted by the Town Board of the Town of North Hempstead. Determination annulled, on the law, without costs. The subject property is located in an unincorporated area of the Town of North Hempstead; it abuts the Village of North Hills on one side and the Village of Lake Success on two other sides. On June 9, 1969 the owners and the contract-vendee of the property filed an application in the office of North Hempstead's Town Clerk to change the zone of the property from Residence A to Business A to permit the erection of a four-story office building with suitable parking, screening and planting. On September 11, 1969, the application was submitted to the Nassau County Planning Commission for its review in accordance with the provisions of section 239-m Gen. Mun. of the General Municipal Law. On September 30, 1969, the Planning Commission disapproved the application. On December 8, 1969, revised plans were submitted to the Town Clerk and by him to the Planning Commission, which again disapproved the application on January 20, 1970. Thereafter, the Town Board held two public hearings for reconsideration of the resubmitted application for the change of zone and on March 31, 1970 it adopted a resolution changing the zoning of the subject parcel from Residence A to Business A; the resolution carried by a vote of a majority of the members plus one. On April 1, 1970, the Town Clerk forwarded to the Planning Commission a copy of this resolution. On May 7, 1970 the Planning Commission held a public hearing to consider the change of zone of the subject premises, purportedly pursuant to the provisions of section 1608 of the County Government Law of Nassau County (L. 1936, ch. 879, as amd.) (also known as the Nassau County Charter). After the close of the public meeting the Planning Commission again disapproved the proposed change of zone. In our opinion the Planning Commission had no power to do what it did on May 7, 1970 and its resolution disapproving the change of zone is a nullity. True, section 1608 of the Nassau County Charter gave the Planning Commission an absolute veto power over an attempted change of zone by a town or village where the subject property is within 300 feet of a town or village boundary. But the legislative history of section 239-m Gen. Mun. of the General Municipal Law, as amended in 1968, the legislative notes on that amended section and the clear inconsistency between that amended section and section 1608 of the Charter all show that section 239-m, as amended in 1968, was intended to and did supersede section 1608 of the Charter. And section 239-m does not give the Planning Commission an absolute veto power over such zoning changes; it gives it merely the power of an advisory veto which the town or village legislative body can override by a vote of a majority plus one of such body's total membership. In this case the Town Board did so override the Planning Commission's disapproval of the revised application; the change of zone then became final and binding; and the Planning Commission had neither the right nor the power thereafter to veto the change of zone. Rabin, Acting P.J., Hopkins, Munder, Martuscello and Benjamin, JJ., concur.