Lead Opinion

Chief Judge Desmond.

On alleged constitutional grounds (Civ. Prac. Act, § 588, subd. 1, par. [a]) petitioner appeals from a unanimous affirmance by Appellate Division, Fourth Department, of a Special Term order confirming a determination of the Zoning Board of Appeals of the Town of Greece, Monroe County. The toAvn board had upheld a denial by the town’s Building Inspector of petitioner’s application for a building permit, and the denial had been on the ground that the dAvelling which petitioner proposed to build violated a setback provision of the local zoning ordinance. Petitioner’s application, filed April 8, 1961, Avas for permission to erect a residence building on a subdivision lot (one of a number it owned) fronting on Mt. Bead Boulevard, the particular lot being 95 feet Avide by 150 feet deep. The difficulty was that the filed plans described a house, the front of which Avould be distant 67.5 feet from the nearest edge of Mt. Bead Boulevard. Building so near the street was a violation of the setback provisions of the applicable town zoning ordinance AA7hich had become effective March 7, 1961 and which in addition to requiring a minimum 60-foot setback in the particular area in Avhich petitioner’s lot is located contained this also:

“ a. Setback Exceptions.

“ (1) When any building is hereafter erected, constructed or built within a residential district on a road or street on the same side of Avhich buildings or structures are located within three hundred (300) feet on either side, the line or setback shall be hot less than the average setback of all such buildings for a distance of three hundred (300) feet on each side of said proposed new building.”

At the time of the permit application there were, immediately south of the lot on which petitioner proposed to build and within *82300 feet therefrom, four residences each of which was set hack 82 feet from the easterly line of Mt. Bead Boulevard. The Building Inspector, therefore, refused to issue the requested permit unless and until petitioner should comply with the setback exception above quoted, that is, locate its house not less than 82 feet from the street line.

It is clear that an ordinance provision requiring setbacks conforming to the siting of existing nearby houses is not unconstitutional. All setback zoning ordinances are presumed to be valid as proper applications of the police power (Goreib v. Fox, 274 U. S. 603; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Village of North Pelham v. Ohliger, 245 N. Y. 593; Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167). Statutes mandating setbacks in line with existing buildings are numerous in this State and elsewhere and their general validity has many times been recognized (see Goreib v. Fox, 274 U. S. 603, supra; Matter of Olsen v. Simkins, 204 Misc. 412, 414; Boudreau v. Albanese, 36 Misc 2d 1051; Matter of Gitlin v. Rowledge, 36 Misc 2d 933 ; City of Little Rock v. Southwest Bldrs., 224 Ark. 871; Alker v. Collins, 2 N. J. Super. 11; State ex rel. McKusick v. Houghton, 171 Minn. 231; Harris v. State ex rel. Ball, 23 Ohio App. 33; Rabalais v. Hillary Bldrs., 62 So. 2d 846 [La. App.]; Phelan v. Zoning Bd. of Review of City of Warwick, 170 A. 2d 289 [R. I.] [1961]; see discussion in Zoning in New York State [Handbook of N. Y. State Dept. of Commerce, 1958 ed.], p. 28). Petitioner argues that Eubank v. Richmond (226 U. S. 137) declares such provisions to be unconstitutional delegations of legislative power but such is not the meaning of Eubank, as the United States Supreme Court itself has so clearly explained in Goreib v. Fox (supra). The Eubank case was one of actual and direct surrender by a legislative body of its zoning power to individuals. It certainly did not outlaw all front-yard requirements based on existing setbacks, otherwise the Goreib case itself would have been differently decided. There was no 1 ‘ delegation ’ ’ here. The ordinance here under scrutiny comes within the general rule permitting setbacks to be controlled by the locations of buildings already in place.

Since, therefore, the particular provision of the Town of Greece statute is not unconstitutional on its face, petitioner could overcome the presumption of constitutionality only by a factual *83showing that it is confiscatory as to petitioner’s particular situation (Headley v. City of Rochester, 272 N. Y. 197; Shepard v. Village of Skaneateles, 300 N. Y. 115, 118; Rodgers v. Village of Tarrytown, 302 N. Y. 115, 121; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493, 499; see Householder v. Town of Grand Island, 36 Misc 2d 862, affd. 280 App. Div. 874, affd. 305 N. Y. 805). “ To sustain an attack upon the validity of the ordinance an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions upon his property preclude its use for any purpose to which it is reasonably adapted ” (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 226). Petitioner makes no such claim. Indeed, it could not since the map which is in evidence shows that if the dwelling were to be built on petitioner’s lot with the required setback, that is, lined up with the other houses, there would be on petitioner’s 150-foot-deep lot plenty of room for a back yard and no apparent disadvantage or inconvenience of any kind.

Petitioner tries to avoid all this by reliance on language in section 26 of the 1961 town zoning ordinance reading as follows: “ If by this ordinance or any subsequent amendment or change thereof, any area is transferred from one district to another district of more restricted use, any non-conforming use then existing within said area may be continued. Any lot or plot of land for which a map has been officially filed prior to the enactment of this ordinance may be used and built upon in accordance with the restrictions and limitations as prescribed in the Zoning Ordinance for the Town of Greece adopted November 20, 1945, which is by this ordinance repealed and supplanted.” Petitioner would read this quoted language to mean that, since its subdivision map was filed in 1959 while a 1945 town zoning ordinance was in effect, its lots are not affected by the 1961 requirement of conformity of setback with that of existing residences. No such reading or effect is possible. The ordinance language which we have quoted in the first paragraph of this opinion, requiring a setback as deep as that of existing houses, was in the earlier or 1945 ordinance as well as in the 1961 enactment. The subdivision map showing petitioner’s lots was not filed until July 5, 1960, two years after the nearby houses had been constructed 82 feet from the street. Thus, even when petitioner’s subdivision map was first filed there was already in *84effect, under the 1945 ordinance, a requirement that any building to be erected on petitioner’s plot must stand back at least 82 feet from the street edge. In other words, the fact that the subdivision map was filed before the 1961 ordinance came into being could not possibly be of any assistance to petitioner since at the time of the map’s filing the existing law because of already existing facts required an 82-foot setback for any house to be built on petitioner’s lot.

There is another — and more complete and satisfying— answer to petitioner’s assertion that section 26 of the 1961 ordinance (quoted in the paragraph next above) means that petitioner’s subdivision lots are protected from zoning changes of any sort since its subdivision map was on file before the 1961 law took hold. The answer is that on its face and by any reasonable intendment section 26’s protection for subdivisions with earlier filed maps is against those changes only which restrict use by up-zoning, that is, by putting the land in a more restricted use zone. Section 26 simply means that when land has been subdivided by a filed and approved map, future-enacted and more restrictive limitations on permissible kinds of use do not apply to lots as shown on such a subdivision map. The purpose and the justice of this are clear but have no relevance to mere changes in setback provisions which in no way affect or change anything shown on, or accomplished by the filing of, a residential subdivision map. The same answer suffices for petitioner’s argument from section 265-a of the Town Law which, assuming it is otherwise applicable, could be in point here only if there was language in the 1961 ordinance to “ increase ” the “ set back requirements ” of the 1945 Town of Greece ordinance.

The order should be affirmed, with costs.

Dissenting Opinion

Van Vooehis, J. (dissenting).

Petitioner-appellant erected a house set back 67.5 feet from the east edge of Mt. Read Boulevard in the Town of Greece, County of Monroe. This was in accordance with the 60-foot minimum setback requirement of the zoning ordinance, unless a larger minimum setback is compelled by a clause in the ordinance providing that the setback line shall be not less than the average setback of all other buildings on the same side of a street within 300 feet on either side of the proposed building site. When this building permit was applied for in 1961, four houses had been built within 300 feet which *85were set back 82 feet from the east edge of Mt. Read Boulevard. For that reason a building permit was refused by the Town Building Inspector and Board of Appeals. This article 78 proceeding was instituted to annul these determinations and to compel the issuance of a permit for the erection of this house at a distance of 67.5 feet from the street.

The following time sequences are important. The applicable zoning ordinance, as appellant contends, was adopted in 1945. No buildings had then been erected within 300 feet of the present building site. During 13 years after the adoption of that ordinance the area remained vacant land. Not until 1958 were the buildings constructed which had been held to impose an 82-foot minimum setback line in the area in question. Those houses were built on lots set forth on a map described as section 1 of the subdivision. The subject parcel is known as lot 5 as shown on section 2 of the subdivision, according to a map approved by the Planning Board of the town which was filed in the County Clerk’s office in 1960. A new zoning ordinance was adopted in 1961 containing the same language regarding setbacks which was in the zoning ordinance of 1945. In express terms the new ordinance rendered the 1945 ordinance applicable to lots in subdivisions for which maps had been previously filed, in these words: “ Any lot or plot of land for which a map has been officially filed prior to the enactment of this ordinance may be used and built upon in accordance with the restrictions and limitations as prescribed in the Zoning Ordinance for the Town of Greece adopted November 20, 1945, which is by this ordinance repealed and supplanted.”

Under this language no greater minimum setback distance than in the 1945 ordinance is to be imposed by the 1961 ordinance in the case of lots designated upon subdivision maps filed prior to its enactment. The result is that if the 60-foot minimum setback requirement of the 1945 zoning ordinance was applicable to the lot of petitioner-appellant when the map on which it appears was filed in the County Clerk’s office in 1960, nothing contained in the 1961 ordinance would establish the setback line at 82 feet or at any greater distance than 60 feet from the street line.

This brings us to the question whether the construction of houses on the neighboring lots in 1958 imposed an 82-foot set*86back line on petitioner-appellant’s lot. Since the 1945 zoning ordinance governs which is continued in force in case of this property in lieu of the 1961 ordinance, the 60-foot setback prescribed by the 1945 ordinance controls and the extra requirement prescribing a greater minimum setback than 60 feet is invalid as applied to this situation. The Appellate Division recognized that “ If the ordinance were construed as allowing the first builders in the future, in an undeveloped area, to establish a setback line which would thereafter be binding upon others building within 300 feet of the first buildings, it would be subject to very grave constitutional doubts ”. That these doubts are well founded readily appears from Eubank v. Richmond (226 U. S. 137) which holds it to be an invalid delegation of legislative power to private individuals to assume to authorize two thirds of the property owners in a block to establish building lines without the approval of any public authority. An ordinance of the City of Richmond, Virginia, was held to be unconstitutional on this ground for the reason that it left no discretion to the public officials whose action “ is determined by two-thirds of the property owners. In other words, part of the property owners fronting on the block determine the extent of use that Other owners shall make of their lots, and against the restriction they are impotent ” (p. 143). The opinion of the United States Supreme Court continues (pp. 143-144): ‘ ‘ The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the proper rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest or even capriciously. Taste (for even so arbitrary a thing as taste may control) or judgment may vary in localities, indeed in the same locality. There may be one taste or judgment of comfort or convenience on one side of a street and a different one on the other. There may be diversity in other blocks; and viewing them in succession, their building lines may be contiguous or staggering (to adopt a word of the mechanical arts), as the interests of certain of the property owners may prompt against the interests of others. The only discretion, we have seen, which exists in the Street Committee or in the Committee *87of Public Safety, is in the location of the line, between five and thirty feet. It is hard to understand how public comfort or convenience, much less public health, can be promoted by a line which may be so variously disposed.”

Eubank v. Richmond (supra) was thus characterized by the Supreme Court in the later case of Gorieb v. Fox (274 U. S. 603, 610): ‘1 The ordinance there considered required the committee on streets to fix a building line upon the request of the owners of two-thirds of the property abutting on any street. The ordinance was held bad by this court (p. 143) because it left no discretion in the committee ” (italics from original).

In deciding Gorieb v. Fox (supra) the Supreme Court manifestly did not consider that it was overruling Eubank v. Richmond (supra). The opinion shows that not only was the complaining property owner held not to have been a party aggrieved, since he had been excepted from the operation of the ordinance, but also that the building line was established by reference to houses existing at the time of adoption of the ordinance.

It thus appears that when the zoning ordinance of the Town of Greece was adopted in 1945, section 10 thereof purported to empower private property owners within 300 feet on each side to establish a setback line imparting to it the force of law. When the neighboring houses were constructed in 1958, 13 years after the ordinance was passed, the legal effect as a delegation of legislative power was not different from the situation presented in the Eubank case. It was as though the neighboring property owners had filed an instrument, as in the Eubank case, prescribing as private individuals the building line for the block. There is no constitutional difference in whether their action is manifested by filing a paper in a public office or by the actual construction of buildings which, under this town ordinance, would have precisely the same effect.

Other cases in which delegation of legislative authority to private individuals was held to be unconstitutional are Washington ex rel. Seattle Tit. Trust Co. v. Roberge (278 U. S. 116) and Matter of Concordia Collegiate Inst. v. Miller (301 N. Y. 189).

The consequence might be otherwise if these buildings had been erected prior to the adoption of this zoning ordinance in *881945. In that event the town board in enacting the ordinance might be deemed to have acted with reference to structures in existence when it was passed, so that, for present purposes, it might be as though the ordinance had stated that in this area the minimum setback was to be 82 feet (1 Yokley Zoning Law and Practice [2d ed.], § 164, p. 406; Phelan v. Zoning Bd. of Review of City of Warwick, 170 A. 2d 289 [R. I.]; Flinn v. Treadwell, 120 Col. 117; see, also, State ex rel. McKusick v. Houghton, 171 Minn. 231).

If the subdivision map on which the subject lot is designated had been filed after the adoption of the 1961 ordinance, the result might have been as the Appellate Division held. What appears to have been overlooked is that the 1961 ordinance excepted from its setback requirements lots shown on subdivision maps which had been officially filed prior to its enactment, as to which the provisions .of the former ordinance were continued in force and effect.

Even if by the terms of the 1961 ordinance the subject property were not controlled by the 60-foot setback of the ordinance of 1945, section 265-a of the Town Law would require that plaintiff’s house be allowed to remain where it is. This statute, effective April 30,1960, states that the provisions of the zoning ordinances thereafter adopted, which increase setback requirements in excess of those applicable to building lots under the provisions of the zoning ordinance in force and effect at the time of the filing of a subdivision plat approved by the town planning commission (as this subdivision plat was), shall not be applicable to or in any way affect any of the lots shown and delineated on such subdivision plat for a period of three years. The building permit for this house has been filed, the house has been constructed and this article 78 proceeding instituted well within that period of time. Consequently section 265-a of the Town Law, even irrespective of section 26 of the 1961 zoning ordinance* requires granting the relief applied for.

Nobody questions the power of municipalities to prescribe setback lines in zoning ordinances nor their presumption of validity (Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167) but that has nothing to do with this situation for the reasons mentioned.

*89The order of the Appellate Division should be reversed and appellant’s petition for an order compelling the Building" Inspector to issue it a building permit in accordance with its application should be granted.

Judges Dye and Burke concur with Chief Judge Desmond ; Judge Fuld concurs in result; Judge Van Voorhis dissents in an opinion in which Judges Froessel and Foster concur.

Order affirmed.