Opinion
July 6, 1970
In a proceeding pursuant to article 78 of the CPLR (1) to annul a resolution of the Town Board of the Town of Clarkstown, dated January 3, 1970, which rescinded its prior resolution increasing the membership of the Planning Board of the Town from five to seven, and (2) to reinstate petitioners as members of the Planning Board, with back compensation, the Town Board and the Town of Clarkstown appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County, entered April 13, 1970, as, on reargument, granted the petition. Judgment reversed insofar as appealed from, on the law, with costs, and proceeding dismissed on the merits. Petitioners, former councilmen of the Town of Clarkstown and former members of its Town Board, as constituted up to December 31, 1969, were defeated in their bid for re-election as councilmen of Clarkstown in the November, 1969 elections. On December 29, 1969 they met with the other three members of Clarkstown's former Town Board, at which meeting three resolutions were adopted, i.e., (1) The Planning Board of Clarkstown was enlarged from five to seven members; (2) petitioner Damiani was appointed as one of the new members of the Planning Board for a period of six years at a salary of $2,000 annually, effective January 1, 1970 (the day after his tenure as councilman ceased); and (3) petitioner Brenner was appointed as the other new member for seven years at the same salary, also effective January 1, 1970, when his tenure as councilman ceased. In our opinion these resolutions were illegal and improper (cf. People v. Dethloff, 283 N.Y. 309, 313, 314; People v. Fitzgerald, 180 N.Y. 269, 274; Milk v. Gottschalk, 29 A.D.2d 698; People ex rel. Smith v. Kenyon, 241 App. Div. 177, affd. 265 N.Y. 537; Wood v. Town of Whitehall, 120 Misc. 124, affd. 206 App. Div. 786; Macrum v. Hawkins, 261 N.Y. 193, 201). On January 3, 1970 the new Town Board of the Town of Clarkstown duly convened a meeting and at that meeting duly passed a resolution rescinding the above-mentioned December 29, 1969 resolutions. In our opinion a public hearing was unnecessary as a condition precedent to the January 3, 1970 resolution ( Milk v. Gottschalk, supra; Town Law, § 93). Christ, P.J., Rabin, Hopkins, Brennan and Benjamin, JJ., concur.