Following a moratoria so that the Town could conduct a land use study, the Town Board enacted a local law that rezoned the Plaintiff’s property from a Business District to a Limited Business District. The Plaintiff challenged the rezoning, alleging that the Town failed to provide proper notice of the public hearing. The appeals court said that the court below properly dismissed the Plaintiff’s claim for summary judgment since the Town Code explicitly provides the Town Board must cause a notice of public hearing to be made on its own proposal to change zoning pursuant to provisions of the Town Law. The Court said that the Town Board’s interpretation that it was required to give notice pursuant to Town Law secs. 264 and 265 was neither arbitrary nor capricious, nor was it contrary to law. Further, the Court concluded that since the Plaintiff received actual notice of the hearing and since the Plaintiff appeared at the hearing, the public hearing constitute a waiver of the requirement that notice be given in strict accordance with the Town Code.
Krupski & Bros. v. Town Board of Town of Southold, 2008 WL 4356095 (N.Y.A.D. 2 Dept. 9/23/2008).
The opinion can be accessed at: http://www.nycourts.gov/reporter/3dseries/2008/2008_07089.htm