Petitioners Hanson, Clement, Tomchik and Phelps, residents of the Town of Nassau, each signed a petition protesting the adoption of Local Law 4 of 2006, entitled, the "Resource Extraction Law of 2006 of the Town of Nassau", which proposed changes to the Town's Land Use and Development Regulations (Local Law No. 2 of 1986). At a meeting held on July 20, 2006, the Respondent's five member Town Board rejected the protest petitions submitted by petitioners and those submitted by ninety-six other protesters and approved the adoption of the Resource Extraction Law by a vote of three to two.

Petitioners commenced this Article 78 proceeding to challenge the Board's approval, contending (1) that the Board's determination to reject the protest petition on the ground that petitioners' signatures were not acknowledged was arbitrary and capricious and without rational basis under the law; (2) that the Board's adoption of Local Law No. 4 of 2006 by majority, not super-majority, renders the adoption of Local Law No. 4 a nullity; and (3) that the Respondent's rejection of the protest petitions violated the due process rights afforded to petitioners under State and Federal Law.

Before the Court is respondent's pre-answer motion to dismiss the petition ^[FN1]. Respondent contends that (1) the Town's Land Use and Development Regulations require protest petitions to be signed and acknowledged so the Board properly rejected each petition; (2) the Town properly rejected each petition on the basis that it was "misleading", and alternatively, (2) that Local Law No. 4, as a "broadly-based, town-wide change in land-use regulations" was not subject to either the State or the Local Law permitting the submission of protest petitions against proposed zoning amendments.

In 1986, the Town of Nassau promulgated Local Law No. 2, its "Land Use and Development Regulations". Local Law No. 2 was enacted "...pursuant to Article 16 of the Town Law of the State of New York, in order to promote the public health, safety and general welfare of the Town of Nassau" and for additional specified purposes (Petitioner's Exhibit B; Local Law No. 2 of 1986, Article I.C). Local Law No. 2 provides, further, that it, "may be amended, supplemented or repealed by the Town Board as provided by Sections 264 and 265 of the Town Law" (Id., Article XI). This action focuses primarily on procedures set forth in Town Law §265 and Article XI of Local Law No. 2 of 1986.

Relevant to this dispute, Town Law §265 provides that town zoning changes may be approved by at least three-fourths (a super-majority) of the members of a town board, if [*2]

such amendment is the subject of a written protest, presented to the town board and signed by

(a) the owners of twenty percent or more of the area of land included in such proposed change; or

(b) the owners of twenty percent or more of the area of land immediately adjacentto the land included in such proposed change, extending one hundred feet therefrom; or

(c) the owners of twenty percent or more of the area of land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land.

(emphasis added; Eadie v. Town Board of the Town of North Greenbush, 22 AD3d 1025, 1028, affd. 7 NY3d 306).

The Town's Local Law (Petitioner's Exhibit B, Article XI.C.4), provides, with respect to amendments, that:

4. TOWN BOARD ACTION. The Town Board may approve any such proposed amendment(s) by a majority vote except that a favorable vote of a majority plus one shall be required if:

....(b) in accordance with the provisions of Section 265 of the Town Law, a protest against such amendment has been duly signed and acknowledged by the owners of at least twenty (20) percent of the land area included in such proposed amendment or of that immediately adjacent extending one hundred (100) feet therefrom or that directly opposite...

(emphasis added).

Petitioners present copies of one hundred separate petitions, each signed by one protester. Not one signature is acknowledged. Based on this omission and citing the above referenced provision of Local Law No. 2 of 1986, respondents voted to reject all petitions (Respondent's Exhibit B, Item No. 204). Subsequently, Local Law No. 4 for 2006 was approved by a simple majority vote.

I.Whether Local Law No. 4 for 2006 was a Zoning Amendment Subject to Protest

This Court finds that the protest petition procedure was applicable to the adoption of Local Law No. 4 for 2006. By its terms, Local Law No. 4 for 2006 was an "Amendment to "Land Use and Development Regulations of the Town of Nassau, Rensselaer County, New York Relating to Resource Extraction or Excavation" (Respondent's Motion to Dismiss, Exhibit A, [emphasis in original]). A review of Local Law 4 for 2006 reveals that its essential purpose was to prohibit commercial mining in two of the four town zoning districts, districts where it had been a permitted use pursuant to Local Law No. 2 of 1986; and to add non commercial excavation as an allowable (i.e. with special permit) use in two zoning districts. Though comprehensive, inasmuch as it applies to the entire Town, Local Law No. 4 amends an existing zoning law and applies to property which had been subject to zoning regulations (compare, Ellish v. Village of Suffern, 30 AD2d 554). Accordingly, it cannot reasonably be construed as an initial zoning enactment.

II.Whether Respondents Properly Rejected the Protest Petitions Because the Signatures Were Not Acknowledged

Having found that Local Law 4 was an amendment to the respondent's zoning regulations subject to the protest petition mechanism, the issue becomes whether the Town Board properly [*3]required strict compliance with the acknowledgment requirement proscribed within Local Law No. 2 for 1986. Respondent contends that Local Law No. 2 was enacted pursuant to the Town's home rule authority and, accordingly, the procedures set forth in the Local Law, not Town Law §265, apply to petitions filed to protest amendments to the Town's land use regulations.

A town's home rule powers include the ability to enact a local law relating to its property, affairs or government, provided that it is not inconsistent with either the State Constitution or any general law (Municipal Home Rule Law §10(1)[i]; Kamhi v Town of Yorktown, 74 NY2d 423, 428-429). A local law may be deemed to be inconsistent with State law if it either expressly conflicts with State Law or if the State has "clearly evinced a desire to preempt an entire field" (Jancyn Manufacturing Corp. v. County of Suffolk, 71 NY2d 91). In the instant case, respondents contend that Article XI of Local Law No. 2 is valid because it is consistent with Town Law §265. In this regard, respondent explains that the acknowledgment requirement is consistent because it supplements, but does not expressly conflict with Town Law §265.

For purposes of analyzing the scope of a local government's home rule authority, the term "inconsistent" does not necessarily mean "different". Rather, it should be construed to reflect its purpose as "a check against local laws which would contradict or would be incompatible or inharmonious with the general laws of the State" (Town of Clifton Park v. C.P. Enterprises et al. 45 AD2d 96, 97). Generally speaking, a local law is not inconsistent if it does not "prohibit what the State law permits nor allow what the State law forbids" (Wholesale Laundry Board of Trade Inc. v. City of New York, 17 AD2d 327, 329, aff'd. 12 NY2d 998). Put differently, where state and local law govern the same conduct, a local law would be invalid if it results in a situation where conduct permitted by state law would violate the local law (Id). Here, based on the foregoing, the Court finds that there is an express conflict between Local Law No. 2 for 1986 and Town Law §265 because Town Law §265 permits a protester to submit an unacknowledged petition and Local Law No. 2 "curtails or takes away" this right (See Jancyn supra at 97).

The foregoing conclusion does not resolve the issue in favor of the petitioner, however, because towns also possess supersession authority that is, the authority to enact an inconsistent local law relating to the property, affairs or government of the town (i.e. zoning) that effectively amends or supercedes State Law (Municipal Home Rule Law §10 (1)[ii](d)[3]; Kamhi v. Yorktown, Supra at 429; Cohen v. Board of Appeals, 100 NY2d 395). In order to exercise this authority to supersede state law effectively, the Municipal Home Rule Law requires the local legislature to announce its intent to amend or supersede state law, by "specify[ing] the chapter..., number and year of enactment, section, subsection or subdivision, which it is intended to change or supersede" (MHRL §22[1]). And, though the statute expressly provides that the "failure so to specify shall not affect the validity of such local law" (Id), "substantial adherence" to the statute is required to ensure that the intent to amend or supersede is demonstrated and to

compel definiteness and explicitness, to avoid the confusion that would result if one could not discern whether the local legislature intended to supersede an entire State statute, or only part of one and, if only a part, which part

Here, the Town failed to effectively supersede Town Law §265. There is no express declaration of intent to amend the Town Law, rather, it announces, at the outset, that it may be amended "as provided by Sections 264 and 265 of the Town Law" (See Article XI. AMENDMENTS Exhibit B, page 45; compare, Henderson Taxpayers Association v. Town of Henderson , 283 AD2d 940, ["Local Law provided that it was adopted pursuant to the Town's supersession authority under Municipal Home Rule Law and to the extent that any procedural or substantive portions of this Law are inconsistent therewith, the provisions of the Town Law including, but not limited to Sections[s] 263, 264, 265 and 274-a thereof, are hereby superseded by the substantive and procedural aspects of this Law'"]). Local Law No. 2 thus fails to demonstrate "a certainty" that it was intended to amend or supersede Town Law §265 (Viscio , Supra).

Based on the foregoing determinations (1) that the requirement that a protest petition be signed and acknowledged set forth in Article XI of Local Law No. 2 for 1986 is inconsistent with Town Law §265 and (2) that Article XI of Local Law No 2 for 1986 did not supersede Town Law §265 because the Town did not comply with Municipal Home Rule Law §22, this Court finds that the acknowledgment requirement is invalid and the Board's determination to reject the protest petitions because the signatures were not acknowledged was improper. This finding is made in recognition that the purpose of the Town Law super-majority requirement is to "provide additional protection to those property owners who would be most affected by a zoning change" (Webster Associates v. Town of Webster, 119 Misc 2d 533). Respondent's Local Law No. 2 for 1986 imposes an additional, albeit minimal, burden on a property owner's attempt to seek this protection and the effect of the Respondent's determination to require strict compliance with Local Law No. 2 was to eliminate it altogether.

III.Whether the Town Board Properly Rejected the Protest Petitions as "Misleading"

At the Town Board Meeting on July 20, 2006, respondents also voted to reject each protest petition because it was "misleading" (Respondent's Exhibit B, Item No. 203). Accordingly, respondent now argues that the Article 78 petition must be dismissed because the protest petition was "ambiguous, vague, deceptive" and contained "false wording and statements" and was thus invalid (Greenberg/Catalano Affidavit at ¶31).

The record before the Court includes a copy of one hundred separate petitions, each signed by one protester. Each petition contains the same title, as follows:

This Court acknowledges that each protest petition includes the drafter's characterization of the means and methods used to adopt Local Law No. 4 for 2006 and fails to include the term "mining". The foregoing, essential elements of each petition were sufficient to demonstrate a valid protest. The Court notes that the Town Law must be strictly construed and, as stated above, the purpose of the Town Law is to protect property owners affected by zoning changes (Ryan Homes Inc. v Town Board of the Town of Mendon, 7 Misc 3d 709; Webster Associates, Supra). The statute does not proscribe the form of the petition, rather, it requires only that (1) the "amendment is the subject of [the] written protest" (2) the written protest be "presented to the town board, and (3) the protest be signed by [affected owners]" (Town Law §265(1); see, also, 1985 Opn. Atty. Gen. 65 (Inf.), [interpreting analogous provision of Village Law as not requiring a protest petition to follow any particular form]).

This interpretation is supported by the principle that, "a statue must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written..." (Eadie, 22 AD3d at 1028). The statute does not permit and must not be construed to permit rejection of an otherwise compliant petition because a majority of the Town Board members disagree with its wording or have speculated that a petitioner did not understand what he or she was signing.

"Fairness and predictability" also lead to this conclusion (Eadie v. Town Board of the Town of North Greenbush, 7 NY3d 306, 315). The statute is designed to protect affected property owners. Here, each petition identified the amendment by it official title, stated that the signor was a property owner affected by the amendment, and that he or she protested the adoption of the amendment. This Court declines to interpret the statute in a manner which would add additional, undefined obstacles to the exercise of one's right to protest zoning changes. Any other interpretation would "frustrate, rather than promote the aim of the statute" (Bismarck v. Bayville, 40 Misc 2d 1082, 1084 [interpreting analogous Village Law]).

Accordingly, respondent's motion to dismiss the petition is denied, without costs. A conference will be held on September 11, 2007 at 10:00 a.m. at the Rensselaer County Courthouse. The purpose of this conference will be to discuss a schedule for additional submissions on the remaining issue whether there was a sufficient number of signatories to the protest petition to require the adoption of Local Law No. 4 for 2006 by a three-fourths vote (see e.g. Verified Petition at ¶30).

This memorandum constitutes the Decision and Order/Judgment of this Court. The original Decision and Order/Judgment of the Court is returned to the attorney for the Hanson petitioners. The remaining papers will be held pending resolution of the remaining issues as set forth above. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from this applicable provision of that Rule respecting filing, entry and Notice of Entry.

Dated:Albany, New York

2007 [*6]

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Verified Petition dated November 10, 2006 (and Exhibits A-E);

2.Affidavit in Support of Verified Petition dated (Mary Elizabeth Slevin, Esq.), sworn November 10, 2006 (with Exhibit A);

3.Affidavits in Support (John, Ashline, Clement, Smith, Warner, Hanson, Phelps, Tomchik, Sheldon, J., Sheldon, C., Sheldon, E.);

4.Amended Verified Petition (Troy Sand and Gravel Petitioners - Fourth Cause of Action only), dated November 20, 2006;

5.Notice of Motion dated February 9, 2007;

6.Affidavit in Support of Motion, sworn February 9, 2007 (Mark D. Greenberg, Esq. and Joseph M. Catalano, Esq.) With Exhibits A-B;

7.Affirmation in Opposition to Motion to Dismiss (Mary Elizabeth Slevin, Esq.);

8.Attorney Affidavit sworn March 23, 2007 (Mark D. Greenberg, Esq. and Joseph M. Catalano, Esq.);

9.Letter Order dated January 17, 2007;

10.Memorandum of Law In Support of Hanson Petition; Memorandum of Law in Support of Respondent's Motion to Dismiss; Memorandum of Law in Opposition to Motion to Dismiss (Hanson Petitioners); Memorandum of Law in Opposition to Motion to Dismiss (Troy Sand and Gravel Petitioners (re: Fourth Cause of Action only); Respondent's Reply Brief;