JEM REALTY COMPANY v. TOWN BOARD OF THE TOWN OF SOUTHOLD

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Supreme Court, Appellate Division, Second Department, New York.

JEM REALTY COMPANY, Respondent, v. TOWN BOARD OF THE TOWN OF SOUTHOLD, etc., Appellant.

Decided: August 05, 2002

A. GAIL PRUDENTI, P.J., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ. Gregory F. Yakaboski, Town Attorney, Southold, NY, for appellant. Pachman & Pachman, P.C., Commack, N.Y. (Howard E. Pachman and Matthew E. Pachman of counsel), for respondent.

In a hybrid action for a judgment declaring, inter alia, that a rezoning resolution adopted by the Town Board of the Town of Southold rezoning certain property owned by the plaintiff violated Town Law § 263, and a proceeding pursuant to CPLR article 78, among other things, to review the rezoning resolution, the Town Board of the Town of Southold appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Werner, J.), dated December 11, 2000, which denied its motion for summary judgment dismissing the hybrid action and proceeding, and granted the plaintiff's motion for summary judgment on the second cause of action in the complaint.

ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, the motion of the Town Board of the Town of Southold for summary judgment dismissing the action and hybrid proceeding is granted, the plaintiff's motion is denied, and it is declared that the rezoning resolutions adopted on December 7, 1993, and July 26, 1994, are invalid.

 The rezoning resolutions adopted on December 7, 1993, and July 26, 1994, were ineffective to amend the changes to the Zoning Code of the Town of Southold which were enacted by Local Law No. 1 in 1989.   The doctrine of legislative equivalency requires that existing legislation be amended or repealed by the same procedure as was used to enact it (see Naftal Assocs. v. Town of Brookhaven, 221 A.D.2d 423, 633 N.Y.S.2d 798;  Noghrey v. Town of Brookhaven, 214 A.D.2d 659, 625 N.Y.S.2d 268).   The procedure for the passage of the resolutions in question failed to comply with the requirements for the passage of a local law.   As a result, the motion of the Town Board of the Town of Southold (hereinafter the Town) for summary judgment should have been granted on the ground of legislative equivalency, and a judgment should have been entered declaring that the December 7, 1993, and July 26, 1994, rezoning resolutions were invalid.

 We reject the argument that 1989 Local Law No. 1 was never properly filed pursuant to Municipal Home Rule Law § 27, and that this alleged procedural misstep is fatal to the Town's argument.   Municipal Home Rule Law § 27 requires that the “text” of the law be filed with the Department of State and the record clearly reveals that this requirement was complied with by the Town. Thus, 1989 Local Law No. 1 was validly enacted.

The remaining contentions of JEM Realty Company are without merit.

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