25 A.D.2d 97 | N.Y. App. Div. | 1966
Defendant City of Rochester appeals from a judgment which declared that section 35 of the General City Law, the Official Map or Plan of the City of Rochester and the ordinances establishing it are unconstitutional and void to the extent that their application prevents the plaintiffs Rochester Business Institute, Inc. (hereinafter referred to as R. B. I.) and Franldin-Andrews Corporation (hereinafter referred to as Franldin-Andrews) from constructing a building within the area of the proposed Court Street widening. The judgment further directed the city, upon presentation of plans for the building described in the complaint, which otherwise comply with the ordinances and regulations, to issue to the plaintiffs the necessary permits for construction.
Plaintiff R. B. I. in 1962 leased from plaintiff FranldinAndrews property located on the south side of Court Street extending from Chestnut to Cortland Streets in the City of Rochester, which property adjoined a parcel owned by R. B. I. to the south, the combined plot having an area of approximately 40,000 square feet. The lease provided for a term of 50 years, annual net rental of $15,000 and included a five-year option to purchase for $300,000.
In 1930, pursuant to article 3 of the General City Law (Cons. Laws, ch. 21), the Rochester City Council adopted an ordinance (No. 2174), commonly known as the Bartholomew Major Street Plan, which provided for the widening of certain streets and the future construction of proposed streets. The Official Map
Section 35 of the General City Law provides that no permit shall be issued to build in the mapped bed of a proposed street as laid out on the official map or plan of a city, such as provided for in the Bartholomew Major 'Street Plan. This legislation recognized that there may be instances where an exception should be made for it provided: “ that if the land within such mapped street or highway is not yielding a fair return on its value to the owner, the board of appeals or other similar board in any city which has established such a board having power to make variances or exception in zoning regulations shall have power in a specific case — to grant a permit for a building in
Assuming, however, that the setback requirement would cause some injury to the plaintiffs, we are confronted with the ques
It is clear that ‘1 the issue as to whether a particular governmental restriction amounted to a constitutional taking * * * [is] a question properly turning upon the particular circumstances of each case ” (United States v. Central Eureka Min. Co., 357 U. S. 155, 168) and requires balancing the interests between the general public welfare and the extent of the diminution of the property value. Thus, constitutionality of the statute depends upon the substantiality of damage as compared with the effect upon public, purpose and the advancement of the general welfare (Pennsylvania Coal Co. v. Mahon, 260 U. S.
The plaintiffs’ “ Compensation for such interference with and restriction in the use of [their] property is [not only] found in the share that the owner enjoys in .the common benefit secured to all ” (People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126, 131) but also in the case at bar in the fact that reasonable and profitable use of their property, in the form of the proposed building, can be made. The increase of 6% in the construction cost, which will give plaintiff R. B. I. the full use it intends to make of the property, with little or no loss in rental income, is truly trivial damage when compared to the great injury to the general welfare which will result if the city is prevented from planning for this essential improvement of traffic conditions. If the minimal damage to plaintiffs involved here by enforcement of the setback restriction renders the specific application of the Rochester Plan unconstitutional, then the public is in grave danger of being deprived of the very valuable tool of city planning for the future. Furthermore, the negotiations of plaintiffs’ attorney with the City Manager in an effort to sell the 14 feet to the city negate any reasonable claim that plaintiffs cannot make profitable use of the parcel without building in the reserved portion.
We recognize that the ordinance and statute cannot be used as a substitute for condemnation proceedings to defeat payment of just compensation by depressing values and thus reducing the amount to be paid for the 14 feet when actually taken. It requires no clairvoyance or great real property expertise to deduce from this record that the delay of the city in appropriating this property will result in a greater cost to it of the land. The erection of the Xerox complex almost directly across the street from the subject property should greatly enhance land values in the vicinity.
As in all matters dealing with ordinances and statutes, the court must so construe the official map law as to sustain its constitutionality in a given situation if it is possible to do so. This principle of law is well stated in the recent case of De Sena v. Gulde (24 A D 2d 165, 169): “ When a municipal legislative body enacts an ordinance, a presumption of validity attaches to its resolution (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Shepard v. Village of Skaneateles, 300 N. Y. 115). The presumption of validity has the effect of (1) imposing the burden of proof on the party questioning the ordinance; and (2) sustaining the ordinance if the propriety of its enactment is fairly debatable. The content of the burden on the assailant is sometimes said to extend further than a mere preponderance of the evidence to proof beyond a reasonable doubt (Wiggins v. Town of Somers, 4 N Y 2d 215; but, see, Thomas v. Town of Bedford, 29 Misc 2d 861, 866, affd. 15 A D 2d 573, affd. 11 N Y 2d 428). Still, the presumption is not irrebuttable (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222), and perhaps we may best rationalize the presumption as a reminder of the force of legislative judgment which must be supported by the courts if there is 1 any state of facts either known or which could reasonably be assumed ’ on which the ordinance could be based (United States v. Carolene Prods. Co., 304 U. S. 144, 154; cf. Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167).” In our judgment, plaintiffs’ evidence fails to rebut the presump
The judgment should be reversed upon the law and the facts and defendant city is entitled to judgment declaring that section 35 of the General City Law, the Official Map and Plan of the City of Rochester and the ordinances establishing it are valid and constitutional; all of which shall be without prejudice to plaintiffs, if so advised, to make a new application to the Zoning Board of Appeals for a permit to construct a building which complies with the ordinances of the City of Rochester.
Judgment unanimously reversed, on the law and facts, without costs of this appeal to either party and declaratory judgment directed in favor of defendant in accordance with the opinion.