The following documents numbered 1 to 49 were read on plaintiffs' motion for judgment declaring that Town of Harrison Local Law No.4 which changed the classification of petitioners' property was enacted in violation of the General Municipal Law § 239-m, the State Environmental Quality Review Act (SEQRA), and the NYS Town Law § 264, and therefore is invalid and on defendants' cross motion dismissing the complaint.

Notice of Motion/Affirmation/Exhibits A-C1-5

Notice of Cross Motion/Affidavits/Exhibits A-HH6-40

Plaintiffs' Affidavits in Opposition/Exhibits 1-741-49

Factual and Procedural Background ^[FN1]

The petitioners/plaintiffs (hereinafter "petitioners") are the owners of property located

at Block 52, Lots 8-13, also known as 24-26 Franklin Avenue (hereinafter "Parcel 1"), 28

30 Franklin Avenue (hereinafter "Parcel 2") and 32-34 Franklin Avenue (hereinafter "Parcel

3"; collectively, "the Properties") in the Town/Village of Harrison. At all times relevant herein, respondents/defendants Thomas Heaship, Alice AuRutick, Anthony Spano, Raymond A. Kraus, Noni Reich, Marshall Donat and Mark Rinaldi were members of the Planning Board of the Town/Village of Harrison (hereinafter collectively, "Planning Board").

Respondents/Defendants Stephen Malfitano, Joseph Cannella, Robert Paladino, Thomas Scappaticci and Pat Vetere were members of the Board of Trustees of the Town/Village of Harrison.

In 2007, petitioners commenced this hybrid Article 78 proceeding and action for declaratory relief seeking, inter alia, to compel the Building Official to issue building permits for a two family house to be constructed on each of the three Parcels and to invalidate the action of the Board of Trustees in amending the zoning ordinance for the area in which the Parcels are located from B-Two Family to R-50 One Family Districts. At the time petitioners acquired the Properties at issue, they were zoned B-Two Family. When petitioners acquired the Properties that were to become Parcels 1-3, they were originally designated 24 Franklin Avenue and 30 Franklin Avenue and both Properties were improved by single family dwellings on 75' x 100' lots. The combination of the two lots resulted in a total frontage of 150' and a depth of 100'. Since the zoning requirements in a B-Two Family zone as to frontage and depth are 50' x 100', petitioners sought to combine the two properties and then divide them into three lots of [*2]50' x 100' dimensions so that a two-family house could be built on each lot. To this end, on or about February 27, 2007, petitioners filed an application with the Building Department to subdivide the Properties into three conforming 50' x 100' lots. In subsequent proceedings on the application, petitioners stated that their intention was to rent out the two family houses they proposed to construct. The matter was forwarded to the Planning Board for sketch plan and State Environmental Quality Review Act ("SEQRA") review at its April 24, 2007 meeting. At the April 24, 2007 meeting, the Planning Board made recommendations for the sketch plan, which were accepted and incorporated by petitioners. The amendments to the sketch plan were accepted by the Planning Board at its May 22, 2007 meeting.

While the application for subdivision was pending with the Planning Board, and despite the fact that petitioners initial sketch plans indicated that the pre-existing structure on 24 Franklin was "to remain", on June 1 , 2007, petitioners submitted drawings to the Architectural Review Board ("ARB") for a new two family dwelling to be located at 24 Franklin Avenue. At the same time, petitioners also submitted drawings to the ARB for a new two family dwelling to be located at 30 Franklin Avenue, as it had been noted on the initial sketch plans that the previous structure at that location was "to be demolished".

On June 20, 2007, the first public Planning Board hearing was held on petitioners' application. At this hearing, several members of the public spoke against the petitioners' application, noting concerns with parking, flooding, landscaping and concerns about "transient" renters, among other items. In response to the public comments, a Planning Board member noted that under the current zoning scheme, petitioners had a right to build two family houses on each lot. It was also suggested that if the public wanted a change in the zoning of the neighborhood, the issue should be raised with the Town Board of Trustees. The Planning Board then voted to adjourn the meeting to July 24, 2007. Prior to the July 24, 2007 meeting with the Planning Board, and consistent with the applications to the ARB, on July 6, 2007, petitioners filed applications for building permits for the construction of new two family dwellings at 24 Franklin and 30 Franklin.

On July 18, 2007, petitioners applied for a demolition permit from the Harrison Building Department for the existing dwelling at 30 Franklin. Also prior to the July 24, 2007 meeting of the Planning Board, on July 12, 2007, a neighbor of the petitioners who opposed the plans for the Properties presented a petition to the Board of Trustees from fifteen neighboring homeowners which formally requested that the area be upzoned from B-Two Family to R-50, which is a single family zoning designation. At the close of the meeting, the Board of Trustees adopted a Resolution which referred "to the Planning Board a request for an evaluation of a re-zone of the designated area of Franklin Avenue, Harrington Place and Hunter Street for an upzone to an R-50 zone" and which further resolved "to recommend to the Planning Board that further consideration of the existing application for a subdivision on Franklin Avenue between Hunter and Harrington be held in abeyance while a re-zoning of the area is considered and the matter is referred back to the Town Board."

At the July 24, 2007 Planning Board meeting, petitioners addressed issues regarding landscaping and engineering which were raised at the prior Planning Board [*3]meeting on June 20, 2007. At the time of this meeting it was clear that despite initial sketch plans that indicated that the structure on 24 Franklin was to remain, petitioners' intention was to raze the existing structure and erect a two family house thereon; thus, it was clear that petitioners sought to subdivide the Properties into three parcels and erect a two family house on each, consistent with the zoning regulations in effect at the time. At this meeting, the Planning Board also heard from the member of the public who presented the neighbors' petition to up-zone the Properties from B-Two Family to R-50 to the Board of Trustees. The neighbor advised the Planning Board of the July 12, 2007 action of the Board of Trustees which referred the re-zoning request to the Planning Board and which requested that the Planning Board hold the petitioners' application in abeyance until the re-zoning was considered. The transcript of this July 24, 2007 Planning Board meeting reveals that this meeting was the first time that the Planning Board members were told of the July 12 resolution of the Board of Trustees. As the Planning Board had not received the July 12 resolution, and as the application was for a subdivision, the dimensions of which would be legal regardless of whether the zoning designation of the property was B-Two Family or R-50, the Board voted to close the public hearing and to issue Planning Board Resolution PB2007/33 granting petitioners Final Subdivision Plat Approval.

On that same date, the Planning Board also issued Planning Board Resolution PB2007/32, which issued a Negative Declaration pursuant to SEQRA on petitioners' application for subdivision. Shortly thereafter, on July 27, 2007, the demolition permit was issued for the existing structure at 30 Franklin and on the next day, July 28, 2007, the existing structure was razed.

On July 31, 2007, the Planning Board issued a resolution addressing the Board of

Trustees' resolution of July 12, 2007 requesting a recommendation on the re-zoning issue. Planning Board Resolution PB2007/28 stated that the Planning Board reviewed the request and "heard comment" from area residents at the July 24 and July 31 , 2007 Planning Board meetings and that the Planning Board positively recommended the zoning amendment. Accordingly, on September 20, 2007, the Board of Trustees passed a resolution which re-zoned Block 51 (Lot 17), Block 52 (Lots 1-20), Block 53 (Lots 1-9) and Block 52 (Lots 1-14) from existing B-Two Family and NB Neighborhood Business Zoning Districts to R-50 One Family Residence Districts. While the Planning Board and Board of Trustees were addressing the request for re-zoning, on August 14, 2007, the ARB approved the proposed structures for both 24 and 30 Franklin Avenue.

On August 20, 2007, petitioners accomplished the approved three lot subdivision of the Properties by conveying 25' of the 30 Franklin Avenue parcel to 24 Franklin Avenue, which then became a 100' x 100' parcel. Petitioner then divided 24 Franklin into two separate parcels, thus creating three parcels of 50' x 100'. Petitioners applied for a building permit for the newly created lot; however, this application was not accepted by the Building Official, as this new lot did not have a tax lot identifier. On August 21, 2007, petitioners forwarded the necessary documents to the Village Assessor in order to obtain tax lot numbers for the new subdivided Properties and requested that the matter be placed on the Board of Trustees agenda for their approval at their meeting on August 23, 2007. Petitioners also wrote to respondents Malfitano [*4]and the Board of Trustees requesting that the Board approve the tax lot numbers for the subdivision at the August 23, 2007 meeting. However, despite petitioners' request, the only item relating to the Properties which was placed on the Board of Trustees agenda for the August 23, 2007 meeting was the recommendation of the Planning Board regarding the re-zoning of the area from B-Two Family to R-50. The Board of Trustees did not address the request for tax lot numbers for the Properties until its September 20, 2007 meeting.

In the meantime, on September 5, 2007, petitioners sought a demolition permit from the Building Department for the existing dwelling at 24 Franklin, which permit was issued on September 9, 2007. That dwelling was razed the next day. Subsequently, at its September 20, 2007 meeting, the Board issued the requested tax lot numbers. As noted above, at this same meeting, the Board also passed the resolution re-zoning the area from B-Two Family to R50. The next day, September 21, 2007, petitioners' application for a building permit for the newly created lot in the subdivision was submitted to and accepted by the Building Official. Thereafter, by letter dated September 24, 2007, the Building Official advised petitioners that the application for a building permit for the newly created

lot was denied, as the zoning for the area had been changed to R-50 pursuant to the September 20, 2007 action by the Board of Trustees and therefore would require a use

variance from the Zoning Board of Appeals.

Although the Board of Trustees voted to adopt the amendment to the zoning code on September 20, 2007 it did not complete the Environmental Assessment Form ("EAF") until October 15, 2007.

Petitioners subsequently commenced this hybrid action seeking to compel the Building Official to issue the requested building permits pursuant to Article 78 and for declaratory relief seeking to have the action of the Board of Trustees in adopting the re-zoning amendment annulled, vacated and set aside.

By Order dated September 16, 2008, the Court (Zambelli, J.), inter alia, dismissed petitioners' first, second and third causes of action for mandamus due to their failure to exhaust their administrative remedies. The Court granted petitioners' Article 78 cause of action finding that the September 20, 2007 resolution of the Board of Trustees re-zoning Blocks 51-54 from the existing B-Two Family and NB-Neighborhood Business Zoning districts to an R-50 Zoning District was arbitrary and capricious because the Board failed to comply with the requirements of SEQRA, GML § 239-m, and Town Law § 264. The Court declared the resolution invalid. The Court severed plaintiffs' 42 USC § 1983 claims.^[FN2]

By order dated June 8, 2010, the Appellate Division Second Department in 24 Franklin Ave. R.E. Corp. v. Heaship (74 AD3d 980, 901 N.Y.S.2d 863 [2nd Dept 2010]), reversed, insofar as appealed from, the Court's September 16, 2008 decision and order finding that the Court "erred issuing a judgment declaring that Local Law #4 is invalid [*5]by using a summary proceeding that pertains only to CPLR article 78 proceedings." The Appellate Division remitted the matter to the Supreme Court, Westchester County for further proceedings on the causes of action for a declaratory judgment, in which those causes of actions were to be treated as if they had been asserted in a plenary action.

By order dated July 11, 2011, the Court (Lefkowitz, J.), in deciding a discovery issue, interpreted, among other things, the Second Department's June 8, 2010, to mean that the Appellate Division did not reverse that portion of the September 16, 2008 order which held Local Law #4 to be invalid.

By order dated December 19, 2012, the Appellate Division, Second Department, in 24 Franklin Ave. R.E. Corp. v. Heaship (101 AD3d 1034, 956 N.Y.S.2d 186 [2nd Dept 2012]), reversed the July 11, 2011, order insofar as appealed from, finding that it's June 8, 2010, had reversed the Supreme Court's September 16, 2008 order in so far as it found Local Law # 4 invalid.

Petitioners now move for an order declaring that Local Law #4 is invalid because the Town failed to comply with the required provisions of General Municipal Law § 239-m, SEQRA, and Town Law § 264. Petitioners argue that while Judge Zambelli's September 16, 2008 decision finding Local Law #4 invalid is not law of the case, it should be relied upon by this Court.^[FN3]

Respondents cross move for summary judgment dismissing the complaint on the ground that petitioners do not have standing to seek the relief sought due to the doctrine of unclean hands. Respondents argue that petitioner Marc Castaldi misled the Planning Board when he told them that he sought permission to subdivide two parcels into three building lots and that the single family home located at 24 Franklin would remain and a two-family structure would be built on each of the other two building lots. Yet, despite that representation, Castaldi razed the home at 24 Franklin and intended to build a third two-family house there. Respondents argue that petitioners' misleading subdivision application and submissions constitute wrong doing sufficient to deprive them of the equitable relief they seek. Respondents also claim that although the Planning Board approved the subdivision on July 24, 2007 it did not grant petitioners the legal right to develop their subdivision. Respondents also argue that the enactment of Local Law #4 "substantially" complied with all necessary requirements of the statutes and is therefore valid.

In reply, petitioners claim they never misled the Planning Board, but even if they did that does not relieve respondents of their obligation to properly enact a Local Law. Discussion [*6]

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v. Prospect Hosp., 68 NY2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Id. at 324, citing Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]).

Plaintiff's Motion for a Declaratory Judgment

Failure to Comply With General Municipal Law § 239-m ^[FN4]

General Municipal Law ("GML") §239-m requires that all zoning actions and amendments affecting real property within 500 feet of the boundary of any city, village, town or existing or proposed county or state park or road, be referred to the County Planning Commission for its review (see GML §239-m[3][a][ii] [3][b][I]), which has 30 days to report its recommendation to the Town (see GML § 239-m[4]). This referral shall be made before the referring municipality takes final action on a zoning amendment (see GML §239-m [2]). The statute further lists what documents must be provided to the County Planning Commission, which includes, inter alia "a completed environmental assessment form". (GML §239-m [1][c]). A municipality's failure to refer a zoning amendment to the County Planning Commission is a jurisdictional defect which renders its enactment invalid (Matter of Zelnick v Small, 268 AD2d 527, 529 [2nd Dept. 2000] Matter of Ernalex Const. Realty Corp. v. City of Glen Cove 256 AD2d 336, 338 [2nd Dept 1998] Matter of Burchetta v. Town Bd. of Town of Carmel, 167 AD2d 339, 341 [2nd Dept 1990] Matter of Ferrari v Town of Penfield Planning Bd, 181 AD2d 149, 152 [4th Dept 1992] ).

The area in question abuts the Village of Mamaroneck. Thus, respondents were required to comply with the mandates of GML §239-m. On September 5, 2007, the respondents did forward a public notice regarding the zoning amendment to the County as required. However, by letter dated September 20, 2007 from the Westchester County Planning Board to the Harrison Town Clerk, the Westchester County Planning Board stated:

Please note that we have received insufficient documentation at this time to conduct a thorough review of this proposed zoning amendment under the provisions of Section 239, L, M, and N of the General Municipal Law and Section 277.61 of the County Administrative Code. Other supporting materials would be helpful in determining the scope and impacts of the proposed amendment. We respectfully request that you send us any additional pertinent material for this amendment at your earliest convenience or as it becomes available.

The respondents assert they did not receive this letter until September 24, 2007, [*7]after Local Law #4 was enacted and thus no further information was provided to the County. Accordingly, the County was unable to review the amendment to Local Law #4 before it was adopted. Nevertheless, respondents contend they substantially complied with the provisions of GML § 239-m by providing the County with public notice of the intended zoning amendment. No authority for this argument is provided and it is without merit.

GML § 239-m(4)(b) provides for County planning agency or regional planning council review of proposed actions; recommendation, report, it reads:

(b) Such county planning agency or regional planning council, or an authorized agent of said agency or council, shall have thirty days after receipt of a full statement of such proposed action ^[FN5], or such longer period as may have been agreed upon by the county planning agency or regional planning council and the referring body, to report its recommendations to the referring body, accompanied by a statement of the reasons for such recommendations. If such county planning agency or regional planning council fails to report within such period, the referring body may take final action on the proposed action without such report. However, any county planning agency or regional planning council report received after thirty days or such longer period as may have been agreed upon, but two or more days prior to final action by the referring body, shall be subject to the provisions of subdivision five of this section.

It is clear that respondents were not to take any action with respect to Local Law #4 until it received a report from the County Planning Commission with its recommendations or 30 days had elapsed (or longer as may be agreed upon by the parties) from the filing of a full statement of the proposed amendment. Here, [*8]respondents sent the County Planning Commission a public notice of the proposed zoning amendment on September 5, 2007 and 19 days later, in violation of GML § 239-m, adopted the amendment.

In Matter of LCS Realty Co. v Incorporated Vil. of Roslyn, 273 AD2d 474, 710 N.Y.S.2d 605 [2nd Dept 2000]), the Second Department reversed the lower court decision and granted a petition seeking to declare the Comprehensive Master Plan and Local Laws, 1997, No. 4 of the Incorporated Village of Roslyn to be void and unenforceable. In Matter of LCS Realty, the Court held:

After referral by the Village, the NCPC [Nassau County Planning Commission] should have been in possession of all of the materials which the Village needed in order to pass a new zoning resolution, including the final version and complete text of the proposed new zoning law and the final generic environmental impact statement. However, it is clear that the NCPC did not have these materials for the requisite 30-day period before the Village acted and adopted the subject zoning law. Under such circumstances, the Village did not comply with General Municipal Law § 239-m and, as a consequence, Local Laws, 1997, No. 4 of the Incorporated Village of Roslyn and the Comprehensive Master Plan were improperly adopted and are void (see, Matter of Ferrari v Town of Pennfield Planning Bd., 181 AD2d 149; see also, Matter of Ernalex Constr. Realty Corp. v Bellssimo, 256 AD2d 336).

As Judge Zambelli noted, in relevant part, in her September 16 2008 decision and order:

Moreover, given that, as noted above, the EAF [Environmental Assessment Form] was not completed until October 15, 2007, it is also clear that respondents failed to provide this document to the Planning Commission prior to the amendment's approval. As respondents failed to comply with GML 239-m in enacting the zoning amendment, the enactment of that amendment is invalid (see Matter of Zelnick v. Small supra; Matter of Ernalex Const Realty Corp v City of Glen Cove supra; Matter of Burchetta v. Town Bd. of Town of Carmel supra; Matter of Ferrari v. Town of Penfield Planning Bd., supra).

Based on the foregoing, the Court finds that respondents did not comply, or even substantially comply, with the provisions of GML 239-M and, therefore, finds Local Law #4 invalid. (See Annabi v. City Council of the City of Yonkers, 47 AD3d 856 [2nd Dept 2008]).

Failure to Comply with SEQRA

"A court's authority to examine a SEQRA review conducted by an entity that was required to do so is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. The relevant question before the court is "whether the agency identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination (citations [*9]omitted)" " (Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 NY2d 668, 688 [1996] citing Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986] see also Matter of Chinese Staff and Workers Assn v City of New York; 68 NY2d 359, 363, 364 [1986]).

Petitioners argue that respondents failed to take the required "hard look" at the proposed zoning amendment. In support of their argument, petitioners note that the Board

of Trustees voted to adopt the amendment on September 20, 2007 although the EAF was not completed until October 15, 2007. Petitioners also argue that the EAF and the SEQRA Negative Declaration contain incorrect information which is indicative of the Board's failure to take a "hard look" at the zoning amendment.

In this case, the Town Board failed to strictly comply with SEQRA's procedural requirements in adopting the zoning amendment. Pursuant to 6 NYCRR. §617.3 (a), no agency involved in an action may approve the action until it has complied with the requirements of SEQRA. 6 NYCRR §617.6 requires the lead agency to use a short EAF in order to determine the environmental significance of an action. Notably, 6 NYCRR §617.7(b)(2) requires the lead agency to review, inter alia, the EAF in order to make a determination regarding an action's significance.

In this case, the Town Board voted to approve the zoning amendment on September 20, 2007, but the EAF is dated October 15, 2007. Hence, it is clear that the EAF was not reviewed prior to the approval of the amendment. Accordingly, respondent's failure to comply with SEQRA rendered its approval of Local Law # 4 in violation of lawful procedure (see Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, supra; Matter of Price v. Common Council of the City of Buffalo, 3 Misc 3d 625 [Sup Ct. Erie Co. 2004]).

Failure to Comply with Notice Requirements of Town Law § 264

In setting forth the procedures to be followed to adopt zoning regulations Town Law § 264(2) provides:

2. Service of written notice. At least ten days prior to the date of the public hearing, written notice of any proposed regulations, restrictions or boundaries of such districts, including any amendments thereto, affecting property within five hundred feet of the following shall be served personally or by mail by the town upon each person or persons listed below:

(a) The property of the housing authority erecting or owning a housing project authorized under the public housing law; upon the executive director of such housing authority and the chief executive officer of the municipality providing financial assistance thereto.

(b) The boundary of a city, village or town; upon the clerk thereof.

(c) The boundary of a county; upon the clerk of the board of supervisors [*10]or other person performing like duties.

(d) The boundary of a state park or parkway; upon the regional state park commission having jurisdiction over such state park or parkway.

These procedural steps required by the enabling acts of municipalities are regarded as mandatory and failure to comply with them invalidates the enactment (Coutant v Town of Poughkeepsie, 69 AD2d 506, 510 [2nd Dept 1979] Keeney v. Village of LeRoy, 22 AD2d 159, 163 [4th Dept. 1964]).

Here, respondents failed to comply with the notice requirements of Town Law §264 in enacting the zoning amendment. The notice of the public hearing on the zoning amendment was published in The Journal News on September 13, 2007, 7 days before the date of the public hearing on September 20, 2007 rather than the requisite 10 days. Further, the statute expressly provides that the "written notice . . . shall be served personally or by mail by the town. . . " Nevertheless, respondents did not personally serve written notice to the Town of Mamaroneck as required by the statute. Respondents claim they substantially complied with Town Law by providing public notice 7 days before the meeting, however, they offer no legal support for their contention.

Accordingly, respondents' failure to comply with the notice requirements of Town Law §264 renders the enactment of Local Law # 4, a zoning amendment, invalid (see Barry v. Town of Glenville, 8 NY2d 1153, 1155 [1960]); Naftal Assocs. v. Town of Brookhaven, 221 AD2d 423, 424 [2nd Dept 1995]).

Respondents' Cross Motion to Dismiss

Respondents argue that petitioners do not have standing to seek an equitable remedy because they have "unclean hands." However, respondents have not indicated how a declaratory judgment action seeking a determination that Local Law #4 is invalid because it was not property enacted is an action in equity. Moreover, even if petitioners misled the Planning Board, such actions have no impact on whether a particular statute was property adopted.

To the extent respondents raise any constitutional arguments, all constitutional claims have been removed to the US District Court and are pending before Judge Kenneth Karas.

With respect to respondents' claims that this matter in not ripe for adjudication, in Red Wing Props., Inc. v Town of Milan, (71 AD3d 1109, 898 N.Y.S.2d 593 [2nd Dept 2010]), the Second Department held "[i]n determining whether an agency action is ripe for review, a pragmatic evaluation [must be made] of whether the decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury' (Matter of Gordon v Rush, 100 NY2d 236, 242 [2003], quoting Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998])." Here, respondents have arrived at a definitive determination in enacting Local Law # 4 which prevents plaintiffs from erecting two-family residences on their property; therefore, this matter is ripe for review. [*11]

Respondents also argue that this Court does not have authority to direct the Building Official to issue building permits to petitioners because the approved subdivision does not confer upon petitioners a legal right to use their property. However, since this Court has determined that Local Law #4 is invalid the property is restored to its pre-zoning amendment status. Therefore, petitioners' subdivision which was approved with B-Two Family and NB Neighborhood zoning reverts back to that status. (See EMB Enterprises, LLC v. Town of Riverhead, 2007 WL 4367147 [Sup Ct 2007] affirmed as modified by 70 AD3d 689, 893 N.Y.S.2d 621, 2010 NY Slip Op. 00849 [2nd Dept 2010]).

Moreover, it is noted that in 2008, respondents acknowledged the following in opposition to petitioner's petition:

Petitioners ague that because Petitioners received the permission to subdivide, they had an automatic right to use. In fact, all that happened upon subdivision is that the Petitioners had the right to have three lots instead of two and to use the property in accordance with the zoning regulations. The zoning regulations changed but the Petitioners still had the right to use the three lots. The only difference was that the three lots could be improved by a one-family dwelling only and not the two family dwelling that Petitioners seek to erect.

It is noted that the subdivision of 2 to 3 lots is actually neutral' in that the lots were granted in the subdivision are 50' by 100' and that under the B one and the R-50 zone, a one family dwelling is able to be constructed on each of the lots.

Having previously taken the position that the subdivision was approved, respondent cannot now argue that it was not approved or that the subdivision was invalid.

Conclusion

In view of the foregoing, Local Law #4 is hereby declared void. The Court finds that its violates the requirements of General Municipal Law § 239-m GML and Town Law § 264, and of the mandate for environmental review imposed upon zoning amendments by SEQRA and its regulatory framework at 6 NYCRR Part 617. The effect of this judicial annulment of said resolution is to restore said premises to its pre-amendment status. This matter is remitted to the respondents which shall, within one hundred twenty (120) days from the date of this decision, re-zone of record, the plaintiff's property, in its entirety, in a manner consistent with the B-Two Family and NB Neighborhood Business zoning classification so as to permit development of said premises in accordance with the petitioners' approved subdivision, and the Building Official is directed to issue building permits to petitioners in compliance with the approved subdivision.

Dated: White Plains, New York

March 24, 2014

__________________________

WILLIAM J. GIACOMO, J.S.C.

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