Opinion
March 9, 1981
In an action, inter alia, to declare unconstitutional a zoning ordinance of the defendant City of Yonkers, defendant appeals from an order of the Supreme Court, Westchester County, entered April 18, 1980, which, inter alia, granted plaintiff's motion for summary judgment on the second and third causes of action. Order modified, on the law, by deleting from the fourth decretal paragraph all words after "the subject property." As so modified, order affirmed, with $50 costs and disbursements to the respondent. In a previous action involving the same parties and the same parcel of land (H. Dev. Corp. v. City of Yonkers, 64 A.D.2d 690), this court affirmed so much of a judgment of the Supreme Court, Westchester County, as declared unconstitutional a zoning ordinance which changed the status of the parcel from an MG district (apartment houses, low density) to an S-100 district (residential use, minimum of 10,000 square feet per plot). This court held that the effect of its decision was to restore the subject parcel to MG zoning. Immediately after this decision was handed down, the Yonkers City Council passed, without debate, another ordinance, zoning the subject parcel as S-50 (residential use, minimum of 5,000 square feet per plot). This ordinance was contrary to the city's comprehensive development plan and had been disapproved by the city planning board. The ordinance was declared unconstitutional as discriminatory by the order herein appealed. We affirm that part of the order. We note, further, that the parcel is herewith once again restored to its MG zoning status and defendant is directed to issue construction permits to respondent for the appropriate number of units in conformance with MG zoning. Mollen, P.J., Hopkins, Titone and Weinstein, JJ., concur.