40 Misc. 2d 259 | N.Y. Sup. Ct. | 1963
Involved in this declaratory judgment action is the constitutionality of the zoning of a three-acre parcel fronting on Middle Neck Road in the Village of Kensington. The parcel is bounded on the north by a six-foot reserve strip which is the northern boundary of the village. It fronts on Middle Neck Road for approximately 554 feet, being bounded on the south by the ornamental wall at the Beverly Road entrance to the village. It is zoned in the Residence District, in which the only permitted uses are for one-family dwellings (including
The parcel involved in this action encompasses 134,000 square feet. It was purchased by plaintiff in March, 1961. It has been zoned “ Residence ” since prior to 1931, and the only change in the ordinance affecting it since that time deleted certain permitted uses (churches, libraries, roomers). From Northern Boulevard to Steamboat Boad, a distance of two and one-half miles, all of the properties facing on Middle Neck Boad other than the subject property and the Dowsey parcel are zoned for commercial or apartment house use. In the area above Schenck Lane there are but three vacant parcels other than the subject property, one on the opposite side of Middle Neck Boad just above Embassy Court on which a commercial building is to be erected, the other two on the same side of Middle Neck Boad more than a half mile north of the subject property. In that entire area there are only three houses, two of which are used for business purposes, and only one of which is still used as a residence. Middle Neck Boad is the principal north-south street on the Great Neck peninsula and is heavily travelled. Subject property was acquired by plaintiff’s predecessor in 1932. She lived in it for about three years and thereafter sought to dispose of it. The residence was first boarded up and finally, after it fell into disrepair was torn down at the insistence of the village.
Plaintiff’s treasurer acknowledged that though plaintiff paid $175,000 for the property, its fair market value was not more than $87,500 and the balance was a premium which plaintiff paid in the expectation that an apartment house could be erected, its officers having been advised that residential zoning was invalid. The experts who testified for plaintiff put the fair market value of the property zoned “Residence ” at not more than $50,000. The village, citing Dilliard v. Village of North Hills (276 App. Div. 969), argues that since plaintiff bought the property with knowledge of its zoning and with the intention of making a profit, it cannot prevail. While one who knowingly acquires land for a prohibited use cannot obtain a variance of the zoning ordinance on the ground of hardship (Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86, 89) he is not thereby
Plaintiff’s expert testified that, zoned for apartment house use, the property is worth $5 per square foot, or a total of $670,000. The village asks that this testimony be stricken in view of the rule that ‘‘ even economic loss to an affected property owner, does not render a zoning ordinance confiscatory” (Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269, 273; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 302; Matter of Setauket Development Corp. v. Romeo, 18 A D 2d 825, 826). Zoning is an exercise of the police power. Against an otherwise valid exercise of the police power the due process clause is not an absolute protection. “ As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act ” (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413). “ There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant * * * it is by no means conclusive ” (Goldblatt v. Hempstead, 369 U. S. 590, 594). Implicit in the reference to “ the extent of
Nonetheless, the residential zoning of plaintiff’s property cannot be sustained. Involved in the determination whether the zoning precludes the use of the property for any use for which it is reasonably adapted are at least the following factors: the character of the neighborhood, the zoning and use of properties
There is no demand for the property for school or public building use, and the court is satisfied that, even considering possible professional accessory use, the influence of the surrounding entirely commercial and apartment house area would make impossible the sale of residences along Middle Neck Road, however the property were to be subdivided, at a price compatible with the applicable tax rates. The last single-family residence built between Northern Boulevard and Steamboat Road was constructed in 1924. Under residential zoning plaintiff’s predecessor could, prior to plaintiff’s purchase, obtain no offer higher than $40,000 notwithstanding the fact that there has been great demand for single-family residential land in the Great Neck Peninsula area. While the property is physically usable for the erection of one-family residences, such residences are not economically feasible in view of the use of the surrounding property and the character of the area on which the subject property borders. The sales offered by the village’s expert to prove otherwise are not, in the court’s estimation (after a view as stipulated by the parties), persuasive. The only one really comparable as to environs is 211 East Shore Road and it maybe differentiated from the residences that could be put on subject property in terms of the size and wooded character of its plot. The Embassy Court development is on the northern border of the village near plaintiff’s property but it is separated from Middle Neck Road by a 400-foot parking lot and the few residences in the development that abut the parking lot are screened from it. While it is true, as the village argues, that it cannot control the use of land outside its borders, it cannot in zoning land within its borders ignore the outside uses, as the Dowsey, Rochdale, Isenbarth and Brandmeier cases (supra) all show.
In balancing the public welfare against the rights of the private owner it is, thus, aesthetic considerations alone that weigh on the public side. The village points to People v. Stover (12 N Y 2d 462, 467) as recognizing “ that aesthetics is a valid subject of legislative concern” and “that reasonable legislation designed to promote that end is a valid and permissible exercise of the police power.” What was there under consideration, however, was an ordinance proscribing conduct offensive to visual sensibilities; what is here involved is a regulatory ordinance which, as has been demonstrated, causes hardship to the property owner. On balance, the court deems this a case “in which the legislative body goes too far in the name of aesthetics ” (ibid., p. 468).
It follows that defendants’ motions at the end of plaintiff’s case and of the whole case, on which decision was reserved, must