67 Misc. 2d 642 | N.Y. Sup. Ct. | 1971
Within the context of an action for a declaratory judgment the plaintiff moves for summary judgment. The defendants cross-move both to dismiss the complaint (CPLR 3211) and for summary judgment on undisputed facts (CPLR 3212). The facts are as follows:
On August 5, 1969 the Village of Wurtsboro in Sullivan County enacted an ordinance known as the “ Village of Wurtsboro Trailer and Trailer Park Ordinance”. Plaintiff made application for a trailer permit on May 22, 1970. The application was denied. On July 28, 1970 the Village Board of Wurtsboro passed a “ Revised Trailer and Trailer Park Ordinance ”, part II of which makes it ‘ ‘ unlawful for a corporation, business or individual to set up or erect on private property for public use within the incorporated limits of the Village of Wurtsboro, a campsite which is to be used as temporary residences for the transient public ’ ’. Plaintiff, owner of a large 30-acre tract of land in the village, applied anew, and the denial of that application was received after the commencement of the action for declaratory judgment but before the return date of this motion.
Plaintiff seeks judgment summarily determining that part II of the revised ordinance is unconstitutional. His attack is predicated on two grounds: (1) that part II of the ordinance is prohibitory in effect in violation of the dicta in Matter of Mid-State Adv. Corp. v. Bond (274 N. Y. 82), and (2) section 89 (subd. 69) of the Village Law grants only regulatory authority to village boards in the State of New York with respect to house trailer camps, tourist camps and house trailers.
First, I know of no case in this State, nor has any been drawn to my attention, that specifically deals with tenting on private property by people other than the owners or their guests. Subdivision 69 of section 89 of the Village Law relates solely
In 1937 the Court of Appeals, reversing the Appellate Division, held (Matter of Mid-State Adv. Corp. v. Bond, 274 N. Y. 82, supra) an ordinance of the City of Troy prohibiting the erection of billboards any place within the city to be unconstitutional. Since this decision reinstated the opinion of Special Term which struck down the law because it prohibited rather than regulated the erection of billboards, the maxim that regulatory authority does not include prohibitory power entered into the dicta of law concerning the exercise of police powers by municipalities taking their powers as grants from a larger governmental sovereign. This maxim or rule, always more proverbial than real, gradually eroded over the years as populations expanded and individual citizens came into greater conflict with the government nearest them and gave vent to their displeasures with ingenious demonstrations of protest. In People v. Stover (12 N Y 2d 462) the City of Eye, New York adopted an ordinance prohibiting the erection of clotheslines or other similar devices on a front or side yard abutting a street. Admittedly, the law was enacted in response to the conduct of a citizen who erected a single clothesline in each of five consecutive years in his front yard, from which he hung tattered clothing, rags and other unsightly objects, as a “peaceful protest”
From all of this it can be concluded that the exercise of the police power by a village is not, generally, or by the language of section 89 (subd. 69) of the Village Law, limited to mere regulation. Within the general authority to regulate may exist the power to prohibit in the furtherance of aesthetic values or the public well-being, provided, however, that the exercise of that power is not arbitrary, capricious or irrational.
In this case we are concerned with a village with a permanent population, according to the 1970 Federal Census, of 686 inhabitants. Plaintiff’s papers include an exhibit showing 104 tent sites and an area marked for future campsites that would contain half again the number proposed. Obviously, if not prohibited, plaintiff could construct and conceivably populate his campsite with approximately 300 people, all living under canvas,
Clearly, the ordinance under attack, albeit prohibitory in nature, is not an irrational or arbitrary exercise of police power. Bather, it is a reasonable exercise of the municipal police power essential to the safety, health, peace and good order of the community.
Next, the restriction imposed on the use of plaintiff’s property does not constitute a taking of his property in violation of the due process clause of the Federal and State Constitutions. No rule in constitutional law is better settled than the principle that all property is held subject to the right of the sovereign to reasonably regulate its use under the police power in the interest of general safety and welfare. The restriction imposed on plaintiff’s property is not a taking. The plaintiff is restrained in the use of his acreage not because the public is taking it for its use but because the proposed use is noxious and contrary to the public good. Such a restriction on private property is constitutionally permissible. (See dissent in Matter of Mid-State Adv. Corp. v. Bond, supra.)
The plaintiff’s motion for summary judgment is denied. The defendants’ cross motion to dismiss the complaint (CPLR 3211) and for summary judgment (CPLR 3212) is granted. A complaint in an action for declaratory judgment may be dismissed upon granting defendant’s motion for summary judgment where the matter is determined solely as a matter of law and there are no factual issues to be resolved.