At page 433 Mandamus not lying to compel legislative zoning action3 citing cases“It is well settled that the type of mandamus sought here lies only to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (see Klostermann v Cuomo, 61 NY2d 525, 539 [1984]).”
- Matter of WKP, LLC v. Town of Lancaster, 2026 NY Slip Op 04630 (N.Y. App. Div. 4th Dep't 2026).published We conclude that the court erred in denying respondents' motion with respect to the second cause of action inasmuch as mandamus to compel does not lie in this case ( see Matter of Wolff v Town/Village of Harrison , 30 AD3d 432, 433 [2d Dep…
- Hudson View Park Co. v. Town of Fishkill, 234 A.D.3d 40 (N.Y. App. Div. 2d Dep't 2024).publishedCorp. v City of New York , 96 NY2d 91, 96 ). "[A]mendment of a zoning ordinance is a purely legislative function, and the applicable statute vests in the Town Board broad legislative power, in its discretion, to amend its zoning ordinance,…
- Home Depot U.S.A., Inc. v. Town Bd. of Se., 70 A.D.3d 824 (N.Y. App. Div. 2d Dep't 2010).publishedMoreover, even if correctly characterized as a CPLR article 78 proceeding in the nature of mandamus to compel and therefore timely, the petitioners nevertheless failed to demonstrate that they have a clear legal right under Transportation…
816 N.Y.S.2d at 187 noting that the town board is not “duty-bound” to act upon a petitioner’s application because amendment of a zoning ordinance is a purely legislative function2 citing cases
- Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, NY, No. 7:20-cv-06158 (S.D.N.Y. Sept. 24, 2021).(noting that the town board is not “duty-bound” to act upon a petitioner’s application because amendment of a zoning ordinance is a purely legislative function)
- Catcove Corp. v. Patrick Heaney, 685 F. Supp. 2d 328 (E.D.N.Y. 2010).published(zoning changes)
At page 432 In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Town/Village of Harrison, New York, and the Town/Village Board of Harrison,…1 citing case
- Gonzalez v. Vill. of Port Chester, 109 A.D.3d 614 (N.Y. App. Div. 2d Dep't 2013).published However, mandamus will not lie to compel the performance of a purely legislative function (see Matter of Structural Tech., Inc. v Foley, 56 AD3d 677 , 678 [2008]; Matter of Wolff v Town/Village of Harrison, 30 AD3d 432, 432-433 [2006]). “[…
v.
Town/Village of Harrison
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Town/Village of Harrison, New York, and the Town/Village Board of Harrison, New York, to reach a determination on the petitioner’s application for a zoning change, the appeal is from an order and judgment (one paper) of the Supreme Court, Westchester County (Alessandro, J.), entered July 26, 2005, which denied the motion to dismiss the petition, granted the petition, and directed the Town/Village of Harrison, New York, and the Town/Village Board of Harrison, New York, to reach a determination on the petitioner’s application for a zoning change as soon as reasonably possible.
Ordered that the order and judgment is reversed, on the law, with costs, the motion is granted, and the proceeding is dismissed.
In 2002 the petitioner filed an application with the appellant Town/Village Board of the Town of Harrison (hereinafter the Town Board) to change the zoning of a certain parcel of real property from zone classification. B (two-family residential) to zone classification MF (multi-family residential). Nearly three[*433] years later, the Town Board had still not reached a determination on the application. The petitioner then commenced this CPLR article 78 proceeding, in the nature of mandamus, to compel the Town/Village Board to make a determination either granting or denying his application. The Supreme Court granted the petition. We reverse.
It is well settled that the type of mandamus sought here lies only to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought (see Klostermann v Cuomo, 61 NY2d 525, 539 [1984]). Mandamus may be used “to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so” (Klostermann v Cuomo, supra at 540). However, the Town Board in this case is not “duty-bound” to act upon the petitioner’s application, because the amendment of a zoning ordinance is a purely legislative function (see Matter of Neddo v Schrade, 270 NY 97, 103 [1936]; Matter of Southern Dutchess Country Club v Town Bd. of Town of Fishkill, 25 AD2d 866 [1966], affd 18 NY2d 870 [1966]; see also New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 203-204 [1994]), and the applicable statute vests in the Town Board broad legislative power, in its discretion, to amend its zoning ordinance, and does not require it to consider and vote upon every application for a zoning change (see Town Law § 265; cf. Matter of Society of N.Y. Hosp. v Del Vecchio, 70 NY2d 634, 636 [1987]). Accordingly, the motion is granted and the proceeding is dismissed (see Matter of Davis v Pomeroy, 283 AD2d 874 [2001]).
In light of our determination, we do not reach the appellants’ remaining contention. Schmidt, J.E, Spolzino, Fisher and Lifson, JJ., concur.