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SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.40462 <>; 298 N.Y.S.2d 350; 59 Misc. 2d 212 February 18, 1969 JAMES IANNARONE ET AL., ON BEHALF OF THEMSELVES AND ALL RESIDENTS, PROPERTY OWNERS AND TAXPAYERS OF INWOOD, AN UNINCORPORATED AREA OF THE TOWN OF HEMPSTEAD, SIMILARLY SITUATED, PLAINTIFFS,v.RALPH G. CASO ET AL., CONSTITUTING THE TOWN BOARD OF THE TOWN OF HEMPSTEAD, ET AL., DEFENDANTS Peter N. Bertucci for plaintiffs. Howard Levitt, Town Attorney, for Ralph G. Caso and others, defendants. Wydler Balin Pares & Soloway for Control Corporation, defendant. Bertram Harnett, J. Author: Harnett

Bertram Harnett, J.

Author: Harnett

 The Iannarones, who reside in Inwood in the Town of Hempstead, object to the rezoning of land within 100 feet of their residence, claiming that:

1. The rezoning application was first voted on by the Town Board of Hempstead and failed to receive a majority vote. The next week, the Town Board voted again, and passed, by a simple majority, the same rezoning application, improperly, because it did not then hold a new public hearing. . The resolution granting the zoning was ineffective because a protest had been filed by the owners of at least 20% of the requisite adjoining area and that under section 265 of the Town Law, where such a protest has been filed, approval must be made by three fourths of the board.

3. The ordinance is invalid as it was not adopted pursuant to a comprehensive development plan for the Town of Hempstead.

A chronological narrative is helpful to follow the course of events involved. On August 15, 1967, a public hearing, pursuant to notice, was held by the Town Board of the Town of Hempstead, then consisting of six members, on the Control Corporation's application to rezone four parcels of land from business and residence "B" to light manufacturing and business. Before the hearing, a petition was filed, purporting to contain the signatures of owners of at least 20% of the land in the legally affected area, protesting the granting of the application.

The Town Board of Hempstead was increased to eight members on January 1, 1968, after the hearing and before the action. On April 23, 1968, the application was voted upon in Resolution 943-1968 and received four ayes, with one member absent, and three abstentions. On April 30, 1968, this was rescinded by Resolution 1011-1968, and by a vote of five ayes and three abstentions, the application was approved by Resolution 1012-1968.

The plaintiffs, the Iannarones, brought a declaratory judgment to have the rezoning nullified and to enjoin Control Corporation from proceeding with the alterations permitted by the rezoning. The defendant, Control Corporation, moved for summary judgment dismissing the complaint, and, the plaintiffs cross-moved for summary judgment granting to them the relief sought in their complaint.

The three issues to be considered upon these motions are:

1. Whether a valid protest was filed requiring that the rezoning be approved by three fourths of the membership of the Town Board;

2. Whether the board was empowered to grant the application on April 30, 1968 without holding a new public hearing; and

3. Whether the rezoning was in accordance with the comprehensive plan of the Building Zone Ordinance of the Town of Hempstead.

Section 265 of the Town Law states: "Such regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed by ordinance. In case, however, of a protest against such change signed by the owners of twenty per centum or more, either of the area of the land included in such proposed change, or of that immediately adjacent extending one hundred feet therefrom or of that directly opposite thereto, extending one hundred feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of at least three-fourths of the members of the town board. The provisions of the previous section relative to public hearings and official notice shall apply equally to all changes or amendments."

The Town of Hempstead presented a map of the affected area drawn by a civil engineer employed by the Engineering Department of the Department of Public Works of the Town of Hempstead. The map indicated that there was an area of 122,675 square feet within the 100-foot radius of the parcels included in the rezoned area. In order for a protest to be made, the signatures of owners of 24,532 square feet in that radius would be necessary. Plaintiffs claim that the protest filed contained the signatures of owners of 26,360 square feet. However, two persons who signed the protest were not owners of the property within the affected area at the time they filed the protest and others revoked their protest after it had been given. The property owned by these persons aggregated 12,820 square feet, and, when this total is substracted from the 26,360 square feet the plaintiffs claimed to have included in their protest, the 13,540 square feet area remaining falls short of the requisite 20% of the affected area. Accordingly, the rezoning may be accomplished by majority vote of the Town Board and not three fourths.

Seven members of the Town Board attended the April 23, 1968 meeting and passed the first Resolution numbered 943-68, with four votes and three abstentions. This failed of the requisite majority, since it received affirmatively only four out of the eight possible votes of the whole board. Section 41 of the General Construction Law provides: "Whenever three or more public officers are given any power or authority * * * a majority of the whole number of such persons or officers * * * shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words ' whole number' shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting." (Emphasis added.) The plain unambiguous meaning of the section would require five affirmative votes for the ...

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