The plaintiff, a builder, purchased a certain piece of property at New York in February 1996. Prior to purchasing the property he ascertained that the property was located in a Residence C zone which requires a minimum lot area of 10,000 square feet. He intended to subdivide the 21,383 square foot lot into two parcels and construct at least one and possibly two new homes on the property. Upon closing on the purchase of the subject property on September 19, 1996, he applied for approval of the subdivision. Thereafter, he was informed by the Nassau County Planning Commission that approval to subdivide was not required.
On or about October 16, 1996, plaintiff filed an Application for Permit to Build or Install with the Department of Planning and Research, Building Division of the Town of Oyster Bay. He was informed that his permit application would not be reviewed because the Town Board was considering a zoning reclassification for the area that included his property. Plaintiff learned that, based upon a petition signed by area residents, the Town Board was considering 1) changing the zone from Residence C (10,000 square feet) to Residence B-1 (20,000+ square feet) and 2) adopting a moratorium on building permits for new home construction. A public hearing was scheduled for October 29, 1996.
Following the hearing on October 29, 1996, the Town Board, by unanimous vote, adopted Local Law No. 4-96, to amend the Code of the Town of Oyster Bay, Section 246-3A, entitled: “A LOCAL LAW TO ADOPT A MORATORIUM ON THE ISSUANCE OF BUILDING PERMITS FOR NEW HOME CONSTRUCTION IN AN AREA DESCRIBED AS NORTH SHORE ACRES, GLEN HEAD, NEW YORK.” The moratorium took effect immediately.
The Town Board withheld its decision to change the zoning classification pending receipt of environmental studies and appraisals. Based upon the moratorium, the petitioners’ application for a building permit is being withheld from review.
On December 10, 1998, the plaintiffs commenced an action against the defendants seeking a judgment declaring that: a) the moratorium is ineffective and void based upon the Town’s failure to follow the procedures mandated by General Municipal Law Sec. 239-m; b) defendants are restrained from applying any zoning classification other than Residence C to plaintiffs’ property; c) the plaintiffs have a vested right in their Residence C property by virtue of simple and separate ownership; and d) the plaintiffs may construct two one-family homes on their property.
On December 12, 1996, the Nassau County Planning Commission reviewed the adopted Local Law providing for the moratorium and recommended that the “referring agencies take action as they deem appropriate.”
The plaintiffs now move for a preliminary injunction, inter alia, restraining and enjoining the defendants from enforcing the moratorium. The defendants have cross-moved for summary judgment dismissing the complaint in its entirety.
Before addressing the merits of the respective applications, it is important to analyze the procedure by which this matter was commenced. Where the challenge to a Local Law does not involve facial validity or constitutionality of the law, but rather the procedure by which the legislation was enacted, a CPLR article 78 proceeding is the proper method. Nevertheless, because in this case the declaratory judgment action was commenced within the Statute of Limitations applicable to Article 78 proceedings, there is no prejudice to the defendants and the court will determine this matter on the merits.
General Municipal Law Sec. 239-m provides the following in pertinent part: “2. Referral of proposed planning and zoning actions. In any city, town or village which is located in a county which has a county planning agency, each referring body shall, before taking final action on proposed actions included in subdivision three of this section, refer the same to such county planning agency.
(a) The following proposed actions shall be subject to the referral requirements of this section, if they apply to real property set forth in paragraph (b) of this subdivision: (ii) adoption or amendment of a zoning ordinance or local law.”
The County Planning Commission must report back to the referring agency within thirty (30) days after receipt of the proposed action. If the County Planning commission fails to report within thirty (30) days, the referring agency may take final action without the report.
The law is well settled that failure to comply with the referral requirements of Section 239-m is a jurisdictional defect which renders the enactment invalid.
It is also well settled that a moratorium on building has been held a “reasonable measure designed to temporarily halt development while the town considered comprehensive zoning changes and therefore a valid stopgap or interim zoning measure”
No appellate courts, however, have discussed compliance with General Municipal Law Sec. 239-m as applied to the adoption of a moratorium on issuing building permits. The only case law directly on point is a Supreme Court, Saratoga County decision in which the court stated that a moratorium is a type of zoning enactment which requires referral to the County Planning Commission. The court held that the moratorium enacted was invalid because the Board did not follow the procedures of General Municipal Law Sec. 239-m.
The plain language of General Municipal Law Sec. 239-m indicates that the proposed enactment of a moratorium must be referred to the County Planning Commission before final action is taken. The referral requirement clearly applies to the adoption of a local law which affects real property in a particular area provided in the statute. There is no question that the property in question is in an area subject to the referral requirements. Accordingly, in this case, the proposed adoption of Local Law 4-96 should have been referred to the Nassau County Planning Commission prior to its enactment. However, the Town Board adopted the Local Law on October 29, 1996.
This constituted a “final action” within Sec. 239-m. While the record does not indicate exactly when the Local Law was referred to the Nassau County Planning Commission, the defendants do not even argue that the Local Law was referred prior to its enactment. In any event, in light of the fact that the County’s report was issued December 12, 1996, it is clear that the defendants did not wait the required thirty (30) days to receive the County’s report before taking final action. The defendants’ failure to do so renders the moratorium invalid as jurisdictionally defective.
Further, although an indication that the enactment of Local Law 4-96 was pursuant to an exercise of the Town’s police power would require a determination whether the moratorium was a “reasonable, necessary and limited response directed at redressing a genuine crisis or emergency”, no such crisis or emergency is present in this case.
Accordingly, based upon the foregoing and upon searching the record (CPLR 3212[b] ), the defendants’ cross-motion to dismiss the request for a declaration regarding the validity of Local Law 4-96 is denied and partial summary judgment is granted to the plaintiffs declaring that Local Law 4-96 is invalid and unenforceable.
Insofar as the defendants’ cross-motion seeks dismissal of plaintiffs’ demands in the complaint lettered (b) through (f), it is granted. The remainder of the plaintiffs’ requests for relief involve determinations that the Town Board has not yet made, such as the proposed change of zone from Residence C to Residence B-1. A declaration or an injunction on these matters would constitute an impermissible advisory opinion.
Finally, in light of the above, the plaintiffs’ application for injunctive relief is denied as academic.
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