Quick v. Town of Owego

Bergan, P. J. A zoning ordinance of the appellant Town of Owego has been declared invalid by the court at Special Term on the ground that the map which implements the ordinance was not “ entered ” in the minute book of the Town Board in pursuance of section 264 of the Town Law. The words of the statute (Town Law, § 264) which underlie the controversy are these: 1 ‘ Every zoning ordinance 8 * * (including any map incorporated therein) adopted pursuant to the provisions of this chapter shall be entered in the minutes of the town board ”. It will be noted that the main thrust of the legislative mandate is to require the entry of the ordinance itself 6 ‘ in the minutes [286] of the town hoard The words “ including any map incorporated therein ’ ’ are parenthetical and additional; and if it would not be reasonable to expect that a map would be “ entered ” in a minute book in the same way that the words of an ordinance or resolution would be entered, a reference to the map in the entry would be a sufficient compliance with the purpose and intent of the statute in this respect. The official map, as adopted, was 7 by 4 feet in size; it is difficult to see how it could be put into an ordinary minute book ; and, indeed, it is not easy to understand how any map could be “ entered ” in any minute book in the sense in which entry in minutes is usually understood; or was intended by the Legislature. We thus reach a result which differs from the court at Special Term. We think the zoning ordinance is valid. In the usual law sense, as well as by dictionary definition, “ entry ” in a minute book means to make a written note of a transaction or event. The dictionary’s evaluation of the word meaning is that it is “ to inscribe, enroll; record ” (Webster, Collegiate Dictionary [5th ed.]). All this suggests writing Something down in words. The Legislature could not, therefore, have meant in its parenthetical reference that maps of whatever size or material had to be physically glued into the minute book; or that if the board and its clerk made other practical arrangements for keeping the map safe in a public place for public reference, the whole ordinance would be deemed invalid. The Owego ordinance itself adopted the zoning map and reference to this is made in the minutes which reflect the whole text of the ordinance. The affidavit of the Town Clerk shows clearly why the map was not placed in the minute book. He said: “ First, it was so large that its size practically prohibited affixing it to the minutes. Secondly, a physical affixing to the minutes would require folding of the map and * * * might well result in displacement of the plastic like designs ” on the map “ denoting ” specific zoned districts “ as defined by the Zoning Ordinance ”. The map was placed on public display in the clerk’s office; it was fully accessible; anyone reading the ordinance in the town minutes would look for it in the clerk’s office and would find it. The conjectured and abstract difficulty in looking for the map after having read the ordinance, which plaintiffs urge upon us, seems a chimerical difficulty, but not a real one. The ordinance itself, “ entered ” in the minutes as the statute says it must be, states that the board adopted and enacted the “ Zoning map, Town of Owego ” which would take effect the “ tenth day after publication and posting thereof as required [287] by the Town Law ”. The zoning ordinance (§ 301), referring to the map, stated that it was “ certified by the Town Clerk There was due and proper publication of the ordinance in a newspaper in May, 1956. Publication of the map in a newspaper is not required by statute. The certificate of the Town Clerk accompanying the publication of the ordinance is entered in the minute book. The map was duly posted in the clerk’s office as part of the process of publication. It was too large for the clerk’s bulletin board; but, during the process of publication, it was displayed on an easel immediately adjoining and the ordinance was on the bulletin board. Thus, if plaintiffs were relying, in the first place, on the publication of the ordinance in May, 1956 and the map, to be advised of their scope and operation, they would have had no difficulty either in finding and reading the ordinance or in finding or examining the very large map on public display in the proper office and at the time required by statute. Nor would there be any conceivable difficulty in finding the map on their later (Oct. 7, 1959) examination of the clerk’s records. The minutes showed a reference to the map; the ordinance referred to it and stated in very explicit language that it was “ certified by the town clerk ”. The necessary effect of reading these words is to know that the Town Clerk had the original to certify; the statute (Town Law, § 30) provides he is the custodian of all records, books, and papers of the town; if the plaintiffs had looked up from the minute book they would have seen on the wall of the clerk’s office the 7 by 4 foot zoning map. The references to the map by both ordinance and resolution in our view constitute a sufficient “ entry ” in the minutes to meet the statute. The cases cited by plaintiffs do not require us to hold the zoning ordinance invalid. It is a “ departure in substance ” from the formula prescribed by law that results in judicial interdiction of such an ordinance (Merritt v. Village of Portchester, 71 N. Y. 309, 312). The proceedings considered in Village of Williston Park v. Israel (301 N. Y. 713) in a number of respects, including publication, failed to follow the appropriate statute and the case is not analogous to the one before us. (Cf. Village of Northport v. Walsh, 265 N. Y. 458.) The judgment should be reversed, on the law and the facts and judgment directed for defendant, with costs.