27 Misc. 2d 844 | N.Y. Sup. Ct. | 1961
Fundamental to the declaration of the invalidity of a zoning ordinance as it applies to a particular parcel of property are the principles that complainants must establish such invalidity not merely by a preponderance of evidence but beyond a reasonable doubt, and that the court’s function is limited to the declaration of what the zoning classification may not be and does not extend to fixation of the proper zoning classification. The present action concerns an irregularly shaped parcel of approximately two and one-quarter acres located at the northeast corner of South Oyster Bay Road and the Long Island Expressway service road. The parcel is zoned Residence “ D ”, which requires a minimum plot of 7,000 square feet. Complainants contend that that classification is invalid because (1) it bears no relation to the public health, safety or general welfare; (2) it does not conform to a comprehensive plan and to the zoning purposes fixed by section 263 of the Town Law; and (3) it is confiscatory. Complainants demand judgment (a) declaring the ordinance invalid insofar as it restricts the parcel to Residence “ D ”; (b) declaring the ordinance invalid insofar as it prevents the development of the parcel for business purposes; and (c) declaring that the failure of the town to grant complainants’ application for rezoning from Residence “ D ” to Business “ F ” was unconstitutional. Since there is evidence that the property would be suitable for an apartment, a permissible Residence “ E ” use, and the evidence does not show that the general welfare mandates its use for business, the last two declarations requested could not, in any event, be made. Nor on the whole case, have complainants sustained their burden of proving the Residence “ D ” zoning of the parcel invalid. The complaint is, therefore, dismissed, without costs.
With the consent of both parties the court has viewed the subject property, the shopping areas to the north and south of it and the properties between the subject property and those shopping areas. The parcel in question, together with the property of the Syosset Fire District, form, roughly, a trapezoid, the Fire District owning a plot 100 by 175 feet in the northwest corner of the trapezoid, the entire trapezoid bounding for 250 feet on the north and 362 feet on the east by property presently used for residences, for 360 feet on the south on the Expressway service road and for 345 feet on the west on South Oyster Bay Road. At the present time the Expressway ends at South Oyster Bay Road, but eventually the exit for westbound traffic from the Expressway to the service road will enter the service road a short distance from the southeast corner of the subject parcel.
Complainants’ case is based on the contentions that the public welfare requires available neighborhood shopping facilities within a half-mile of a residential area, that a comprehensive zoning plan requires neighborhood shopping facilities on the parcel in question, and that the traffic on South Oyster Bay Road and the Expressway service road, the location of and noises emanating from the firehouse, the location of and light and noises emanating from the car sales agency opposité the subject parcel and the fact that there is too little shopping area in relation to the residences now in existence make it impossible to sell houses built on the property at a price that would include any return for the land. The court rejects the town’s argument that, because complainants sold to the fire district the property on which the firehouse is located, any hardship resulting from its location must be considered self-imposed. It is not disputed that the fire district has the power of eminent domain. Complainants may not be penalized because they negotiated the taking price rather than require that a condemnation proceeding be instituted. It rejects also complainants’ attempt to bolster their case by pointing to the facts that on subdivision maps covering the 40 acres developed by them and their predecessors, the entire trapezoid was shown as ‘ ‘ Future Proposed Business, ’ ’ and that contracts entered into with purchasers contained similar notice. While those facts could have bearing in litigation between complainants and the purchasers, they are totally irrelevant to the present determination. Zoning is a legislative
Oases such as Dowsey v. Village of Kensington (257 N. Y. 221); Matter of Isenbarth v. Bartnett (206 App. Div. 546, affd. 237 N. Y. 617), and Evanns v. Gunn (177 Misc. 85, affd. 262 App. Div. 865), which have upset residential zoning classifications because of insufficient relationship to public health, safety, morals and general welfare have involved situations in which the development of the surrounding area was contrary to the zoning imposed on the parcel in question and in which it appeared the zoning classification was fixed “ in order that the beauty of the village as a whole may be enhanced.” In each a general pattern contrary to residential zoning was clearly established ; in Dowsey for apartments and business; in Isenbarth for business, no residences having been built for more than 20 years; in Evanns by rezoning a single parcel residential, leaving it entirely surrounded by business. In the instant case much of the development on which complainants rely is for professional use, a use permitted by Residence “ D ” zoning. Only the automobile sales agency and the real estate office are contrary to that zoning. It cannot be said, therefore, that the zoning of complainants’ property is arbitrary in its relation to the police power (see Gardner v. Le Boeuf, 24 Misc 2d 511, 516).
Complainants strenuously argue, however, that the distance of other shopping facilities from the subject parcel and from the many homes in the vicinity of subject parcel mandate, as part of comprehensive planning, the use of the property for neighborhood shopping. They rely on the last sentence of section 263 of the Town Law, which provides: “ Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality ”, on the testimony of their experts that neighborhood shopping is ‘ ‘ the most appropriate use of ” this land, and on the fact that the town’s zoning expert has testified in another proceeding that “ Generally the standard of one-half mile [distance within which a neighborhood shopping facility should be from the entire residential area] is used in suburban areas where there is a lesser density of population.” The statutory provision that the regulations ‘ ‘ be made with * * * a view to * * * encouraging the most appropriate
Nor does the proof establish that the ordinance precludes the use of the property for any purpose for which it is reasonably adapted. Such a demonstration is made only when it is shown that the property is not adapted to any use either absolutely or conditionally permitted (Matter of Forrest v. Evershed, 7 N Y 2d 256, 262; Attoram Realty Corp. v. Town of Greenburgh, 8 A D 2d 937, motion to dismiss appeal denied 7 N Y 2d 919; Gardner v. Le Boeuf, supra, p. 517). While each of complainants’ experts testified that in his opinion the present Residence “D” zoning does not permit any reasonable use of the property, that conclusion was not substantiated by showing that effort had
It follows that the complaint must be dismissed, but dismissal will be without costs. The foregoing constitutes the decision of the court pursuant to section 440 of the Civil Practice Act and all motions on which decision was reserved are decided accordingly. Of the findings and conclusion submitted by complainants, only those findings numbered 1, 2, 4, 5, 6, 7,11,12,13,14,15, 17, 20, 21, 22 and 26 are made by the court.
Settle on notice.