8 A.D.2d 962 | N.Y. App. Div. | 1959
— Action to declare unconstitutional and void an amendment to the Zoning Ordinance of the Town of Islip, Suffolk County, under which the zoning district of the subject parcel of land was changed from residence “A” to business. The resolution adopting the amendment also provides that the change is conditioned upon the executing and recording of a deed subjecting the land to limited areas of building occupation and an agreement that a fence be erected and a hedge be planted. The appeal is from a judgment entered after trial before an Official Referee which declares the amendment unconstitutional and void and enjoins the use of the land for purposes other than those permitted in a residence “A” district. The Referee found the amendment to be the result of (1) illegal “spot zoning ”, not part of any comprehensive plan of orderly zoning but based upon a capricious and arbitrary determination, and (2) illegal “zoning by contract”. Judgment reversed on the law and the facts, without costs, and judgment directed declaring the amendment herein to be constitutional and valid. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. The Referee’s finding that no public need or convenience has been indicated is contrary to the evidence, and in any event the Town Board’s finding thereon is conclusive, inasmuch as a factual basis existed to support the finding. (Shepard v. Village of Skaneateles, 300 N. Y. 115.) The evidence shows that the Town Board considered that the subject parcel is located on a main traffic artery, that the community is growing, and that the pressures of growth are forcing changes in the zoning districts. In view of that and other evidence, it may not be held that the Town Board’s determination was arbitrary and without support in reason. We find no illegality in the fact that the Town Board conditioned the use of the new district upon the subjecting of the land to a more restricted use than is permitted in a business district. We are aware of the principles set forth in the article entitled “ Zoning by Contract With Property Owner ” by Ralph W. Crolly and C. MeKim Norton (N. Y. L. J., April 6, 1955, p. 4). However, we take notice of the fact that the population and development of Nassau and Suffolk Counties have increased enormously in recent years and that such growth is continuing. We take notice also of