Annabi v. City Council

In two related actions, inter alia, for a judgment declaring that General Ordinance No. 12-2005 of the City of Yonkers is invalid, the defendants in both actions, City Council of the City of Yonkers, City Clerk of the City of Yonkers, City of Yonkers, and Philip Amicone, as mayor of the City of Yonkers, appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Colabella, J.), entered May 2, 2006, as, upon converting their motions pursuant to CPLR 3211 to dismiss the complaints in both actions into motions for summary judgment dismissing the complaints, in effect, denied those motions and granted that branch of the cross motion of the plaintiffs in action No. 1 which was for summary judgment declaring that General Ordinance No. 12-2005 of the City of Yonkers is invalid.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

By letters dated August 11, 2004 and July 7, 2005, the Westchester County Planning Board (hereinafter the County Planning Board) advised the City Council of the City of Yonkers of its recommendation that a certain 81.4-acre mixed-use proposed development project should be modified or disapproved for various reasons including, but not limited to, inadequate traffic measures, conflicts with the County’s public policy concerning large-scale retail developments, and the lack of general suitability of the site to accommodate the proposed project. Under these circumstances the Code of the City of Yonkers § 43-167 (C) prohibited the City Council from acting contrary to such recommendations except by vote of a majority plus one.

Subsequently, on November 22, 2005, at a meeting of the City Council, and on the City Council’s own motion, an amendment to the Code of the City of Yonkers § 43-167 (C) was adopted which eliminated the majority plus one requirement and substituted a simple majority vote for approval of the project contrary to the County Planning Board’s recommendations. The amendment by its terms was effective immediately and was denominated General Ordinance No. 12-2005.

The defendants in these related actions, City Council of the City of Yonkers, City Clerk of the City of Yonkers, City of Yonkers, and Philip Amicone, as mayor of the City of Yonkers, argue that the Supreme Court incorrectly found this general ordinance to be invalid on the ground that such ordinance should have been referred to the County Planning Board for review pursuant to General Municipal Law § 239-m. We disagree.

General Municipal Law § 239-m essentially requires that all zoning actions and amendments affecting real property within 500 feet from the boundary of any city, village, town, or existing or proposed county or state park or road, be referred to the County Planning Board for review. Contrary to the defendants’ contention, there is no difficulty in determining whether the challenged law is the type of enactment subject to review under General Municipal Law § 239-m. By its very terms, the challenged law affects a change in the regulations applying to all real property within the City of Yonkers, and necessarily includes that real property which is situated within 500 feet of the boundaries, areas, and roadways set forth in the statute. Hence, inasmuch as the general ordinance at issue falls squarely within General Municipal Law § 239-m, the defendants’ failure to refer it to the County Planning Board is a jurisdictional defect which renders its enactment invalid (see Matter of Burchetta v Town Bd. of Town of Carmel, 167 AD2d 339, 340-341 [1990]; Matter of Old Dock Assoc. v Sullivan, 150 AD2d 695, 697 [1989]; Matter of Asma v Curcione, 31 AD2d 883, 884 [1969]).

In view of the foregoing it is unnecessary to address the defendants’ remaining contentions. Crane, J.P., Florio and Carni, JJ., concur.