91 Misc. 2d 80 | N.Y. Sup. Ct. | 1977
In this State, persons who lack a legal or equitable interest in real property have never been granted standing to attack a zoning ordinance. Alleging that their constitutional and statutory rights are being violated by exclusionary zoning practices of the Town of Brookhaven, a number of such unpropertied individuals plus a few taxpayers and
THE PARTIES
The plaintiffs are comprised of four categories of individuals and three organizations. The individual plaintiffs are low-income residents of Brookhaven, both black and white, who live in overcrowded or otherwise inadequate rented quarters; homeowning Brookhaven taxpayers, both black and white, who allege that the defendants’ exclusionary zoning practices deprive them of the opportunity of living in a racially and economically balanced community; a white graduate student and his wife and a black graduate student at the Stony Brook campus of the State University who allege that they cannot find adequate housing which is within their economic means; a nonresident black woman who was forced to leave Brookhaven because she could not locate adequate housing for herself and her two children and who now lives on public assistance with them in inadequate housing in Riverhead; and the president of the Borough of Manhattan who claims to represent minority citizens living in the city’s "slum ghetto” who cannot relocate in Brookhaven because affordable housing is unavailable. The organizations are Suffolk Housing Services, a nonprofit agency established to assist low-income and minority citizens to obtain decent housing in Suffolk County; the Brook-haven Housing Coalition, an association of religious and community organizations which have joined together to work for a racially and economically integrated community; and the Patchogue-Brookhaven Branch of the National Association for the Advancement of Colored People which seeks solutions for the lack of adequate housing for low-income and minority citizens in the Town of Brookhaven. Each of these organizations avers that its clients or members are directly injured and aggrieved by the defendants’ zoning practices. The plaintiffs sue individually and on behalf of all others similarly situated.
The defendants are the Town of Brookhaven, its supervisor, its planning board, and the chairman of the planning board.
The plaintiffs plead, inter alia, that despite Brookhaven’s population increase of 123% during the decade 1960-1970 its black population was reduced from 3.4% to 2.6% and that 97% of the growth was white; that most of the minority population lives in racial enclaves of deteriorating housing located in North Bellport, Gordon Heights, Patchogue and Center Moriches; that it is town policy to exclude multifamily development as of right and most of the 60,300 acres of vacant privately owned land is currently zoned for single-family development; that an excessive amount of vacant land is zoned for commercial and industrial uses; that where multifamily housing has been permitted, the town has imposed covenants or obtained the agreement of the developer to limit the number of bedrooms; and that the zoning ordinance requires an additional 1,000 square feet per bedroom where more than one bedroom is proposed in the MF-1 zoning district and an additional 1,000 square feet of site for each additional bedroom in the MF-2 district. All of these restrictions on multifamily development are alleged to have a disproportionately harsh impact on low-income persons — and particularly minority groups — who must rent rather than purchase. The town has no housing authority, it has refused to support privately sponsored federally subsidized housing, and it has refused to apply for Federal grants for community development. According to plaintiffs, these policies preclude town residents and others in the metropolitan area from obtaining decent housing in the community.
In their first cause of action plaintiffs maintain that the zoning policies described violate the requirement in section 261 of the Town Law that zoning be in furtherance of the general welfare; in the second cause of action that it deprives plaintiffs of equal protection of the law as secured by section 11 of article I of the New York State Constitution; in the third that it violates the requirement of section 272-a of the Town Law that zoning be in accordance with a master plan designed to promote the general welfare; and in the fourth that it constitutes a violation of the Thirteenth and Fourteenth Amendments to the Federal Constitution and of sections 1981, 1982, 1983 and 3601 et seq. of title 42 of the United States Code. The plaintiffs seek a declaration of the invalidity of the zoning ordinance and "land use mapping” policies of the town, further relief enjoining the defendants from pursuing policies
THE MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION
On a motion to dismiss for failure to state a cause of action, all of the allegations of the complaint are deemed to be true (Rainbow Shop Patchogue Corp. v Roosevelt Nassau Operating Corp., 34 AD2d 667), and, together with all reasonable inferences, must be viewed in a light most favorable to plaintiffs. The concern is not whether plaintiffs can prove a cause of action but whether they have alleged one (Sanchez v Village of Liberty, 49 AD2d 507). If any one of plaintiffs’ four causes of action can be sustained as a matter of pleading, the instant motion must be denied in its entirety since it is addressed to the complaint as a whole (Matter of Smith v Lavine, 44 AD2d 570).
Exclusionary zoning has been defined as land use control regulations which singly or in concert tend to exclude persons of low or moderate income from the zoning municipality (2 Anderson, American Law of Zoning [2d ed], § 8.02). As early as 1924 the exclusionary impact of comprehensive zoning was recognized at the Federal District Court level when in the course of nullifying the zoning ordinance of the Village of Euclid, Ohio, Judge Westenhaver observed that "[I]n the last analysis, the result to be accomplished [by zoning] is to classify the population and segregate them according to their income or station in life.” (Ambler Realty Co. v Village of Euclid, 297 F 307, 316).
The Euclid ordinance had been attacked because it excluded, inter alia, business uses and apartment houses from a residential district. When the case reached the Supreme Court the ordinance was sustained (see Euclid v Ambler Co., 272 US 365) on the theory that it served the general welfare of the public because it tended to improve fire protection, reduce street congestion, decrease noise which produces or intensifies nervous disorders, and preserve a more favorable environment for the raising of children. Euclid was the first action involving comprehensive zoning regulations ever to reach the Supreme Court and, in the decades which followed, the court’s
In New York, minimum lot area restrictions (Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269), restrictions on apartment buildings in residential districts (Matter of Wulfsohn v Burden, 241 NY 288, 301; Matter of Fox Meadow Estates v Culley, 233 App Div 250, affd 261 NY 506), and even aesthetic considerations (see People v Stover, 12 NY2d 462; Chusud Realty Corp. v Village of Kensington, 40 Misc 2d 259, affd 22 AD2d 895) have been upheld as reasonably related to the public welfare where they do not impose too great a hardship on the individual property owners. Traditionally, litigation contesting the validity of zoning regulations has involved competition between the general welfare concept— characterized by the perception of certain types of exclusionary restrictions as beneficial — and the rights of landowners to obtain a reasonable return on their property (see Matter of National Merritt v Weist, 41 NY2d 438) or to prevent its devaluation as a consequence of spot zoning to enhance the value of the property of others (Buckley v Fasbender, 1 NY2d 681). Within this narrow framework, the right of individuals to obtain adequate affordable housing in any particular community remained unrecognized until the relatively recent past.
The defendants concede that exclusion is at the core of comprehensive zoning, but they deny that plaintiffs’ housing difficulties are its consequence. Plaintiffs’ problems, they contend, result from their economic plight and not municipal zoning restrictions. In defendants’ view, zoning regulations beneficial to the Brookhaven majority should not be annulled because of the financial exigencies of a comparative few. Undoubtedly, Euclidian zoning has served as a significant device in the molding of suburban communities satisfactory to the great majority of residents. However, the ongoing deterioration of the inner cities and the concomitant population and industrial flight have intensified the exclusionary effect of zoning restrictions upon members of the lower economic strata and racial minorities (see Symposium, Exclusionary Zoning, 22 Syracuse L Rev 465; 2 Anderson, American Law of Zoning [2d ed], § 8.01). Pressure for relaxation of such restrictions and challenges to their validity have inevitably followed.
In this republic, invidious legal classifications ultimately
Although a large lot ordinance was struck down as exclusionary in the Virginia Supreme Court in 1959 (Board of County Supervisors of Fairfax County v Carper, 200 Va 653) and by the Pennsylvania Supreme Court in 1965 (National Land & Inv. Co. v Easttown Twp. Bd. of Adg., 419 Pa 504) and 1970 (Concord Twp. App., 439 Pa 466), invalidation of an exclusionary zoning ordinance aimed at preventing multifamily development did not occur until 1970 when the Supreme Court of Pennsylvania decided Girsh App. (437 Pa 237). A series of similar determinations in both Federal and State courts followed (see Southern Burlington County NAACP v Township of Mount Laurel, 67 NJ 151, cert den 423 US 808; Oakwood at Madison v Township of Madison, 72 NJ 481; United States v City of Black Jack, 508 F2d 1179, cert den 422 US 1042, reh den 423 US 884; Ybarra v City of Town of Los Altos Hills, 503 F2d 250). Nonetheless, apart from a strong dictum to the effect that it would not "countenance * * * under any guise * * * community efforts at immunization or exclusion” and some further discussion of regional housing problems in Matter of Golden v Planning Bd. of Town of Ramapo (30 NY2d 359, 378, app dsmd 409 US 1003), the Court of Appeals of this State rendered no determination relative to exclusionary zoning until its landmark decision in Berenson v Town of New Castle (38 NY 102) at the end of 1975.
Berenson involved an attack on the validity of the entire New Castle zoning ordinance because it excluded multifamily housing throughout the town. The case was traditionally postured with landowning plaintiffs who had failed to obtain approval for a multifamily condominium development—
Disagreeing with this formulation of constitutional issues and relying upon the general welfare provision of section 261 of the Town Law, the Court of Appeals enunciated a two-tiered doctrine under which the New Castle Town Board was held obligated: (1) to provide a properly balanced and well-ordered plan for the community which meets its present and future needs; and (2) to consider regional needs and requirements in view of the needs of Westchester County and New York metropolitan region residents who require multifamily housing in the New Castle area to be near their employment or for a variety of other social and economic reasons. The court stopped far short of the "fair share” doctrine posited by the New Jersey Supreme Court to the effect that each municipality must provide the opportunity to meet a fair share of regional requirements (Oakwood at Madison v Township of Madison, 72 NJ 481, supra; Southern Burlington County NAACP v Township of Mount Laurel, 67 NJ 151, supra) and declared instead that there is no municipal obligation to provide for local or regional needs if those needs already are being met by other nearby communities. As in Pennsylvania, where the plaintiffs also have been landowners and developers, the constitutional question of equal protection was avoided (see e.g., Girsh App., 437 Pa 237, supra; Concord Twp. App., 439 Pa 466, supra; National Land & Inv. Co. v Easttown Twp. Bd. of Adj., 419 Pa 504, supra) by the Court of Appeals.
When the instant complaint is tested against applicable law as stated in Berenson, plaintiffs adequately plead that the town’s zoning policies contravene the general welfare requirements of section 261 of the Town Law and (even if somewhat obtusely) that the town has not provided a properly balanced, well-ordered plan for the community which meets its present and future needs. Therefore, the first cause of action of the complaint is legally stated and the entire complaint survives (see Matter of Smith v Lavine, 44 AD2d 570, supra).
The gravamen of the assault on plaintiffs’ standing to bring this action is the claim that they have failed to allege that the offending ordinance has caused any pecuniary damage to real property in which they have an interest or that they have any affiliation with a specific project prohibited by the ordinance which might otherwise serve to alleviate their housing difficulties. Under the traditional rule, only those who assert pecuniary or economic loss and who have a legal or equitable interest in land have standing to challenge a zoning restriction (see, e.g., Marcus v Village of Mamaroneck, 283 NY 325; Matter of Haber v Board of Estimate of City of N. Y., 33 AD2d 571; Matter of Manor Woods Assn. v Randol, 29 AD2d 778; Brechner v Incorporated Vil. of Lake Success, 25 Misc 2d 920, affd 14 AD2d 567, mot to dismiss app den, 11 NY2d 875, app dsmd 11 NY2d 929; cf. Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1). The rule was fashioned in the context of challenges to the validity of zoning ordinances by landowners who alleged deprivation of due process by virtue of pecuniary loss and it simply omits the interests of those excluded by such ordinances (see Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stanford L Rev 767; see 11 Urban L Ann 223; 22 Syracuse L Rev 598; Ann 48 ALR3d 1210).
The defendants argue further, however, that if the old precepts are to be relaxed for impecunious plaintiffs, their appropriate replacement is the Federal rule enunciated in Warth v Seldin (422 US 490). In Warth, the Supreme Court made standing contingent upon proof that a contested zoning restriction harms the plaintiffs in a personal way and that relief would confer a tangible benefit such as approval of a specific project in which they have an interest. It denied standing to all of the plaintiffs, consisting of a variety of low and moderate income nonresidents as well as nonresident taxpayers and organizations, but distinguished those cases where low income minority group plaintiffs have been found to have standing to challenge zoning restrictions as applied to particular projects (see, e.g., Park View Hgts. Corp. v City of Black Jack, 467 F2d 1208; Kennedy Park Homes Assn. v City of Lackawanna, 436 F2d 108, cert den 401 US 1010).
The Federal standing law responds "to concerns that are peculiarly federal in nature” (Arlington Hgts. v Metropolitan Housing Corp., 429 US 252, 262, n 8, supra) and is not binding
Warth (422 US 490, supra) graphically illustrates that it is the policy of the United States Supreme Court to restrict access to the Federal judicial process under the case and controversy clause and the prudential limitation doctrine. The unmistakable current trend relative to standing in this State, however, is to depart from the harsh requirements of the past which limited access to the judicial forum of those seeking to redress the illegality of legislation and official action (Phelan v City of Buffalo, 54 AD2d 262), particularly where issues of great public significance are involved which are likely to recur (National Organization for Women v State Div. of Human Rights, 34 NY2d 416; Blye v Globe-Wernicke Realty Co., 33 NY2d 15; East Meadow Community Concerts Assoc. v Board of Educ., 18 NY2d 129) or where adherence to the traditional rules would effectively insulate a challenged action from judicial review (Boryszewski v Brydges, 37 NY2d 361; Matter of Burke v Sugarman, 35 NY2d 39; Bloom v Mayor of City of New York, 35 AD2d 92, affd 28 NY2d 952).
Boryszewski v Brydges (supra), involved the standing of a citizen taxpayer to contest the validity of a State statute which provided for legislative and executive retirement plans as well as legislative "lulus.” Abandoning the old "personally aggrieved” rule last restated in St. Clair v Yonkers Raceway (13 NY2d 72, cert den 375 US 970), the court declared (37
The opinion in Berenson v Town of New Castle (38 NY2d 102, supra), did not address the question of standing generally, although it sustained the plaintiff’s standing and contained a cryptic reference to the standing of nonresidents. Berenson did, however, accord recognition to the zoning interests of individuals engaged in the search for housing not only in their own or nearby municipalities but throughout an entire metropolitan region. That recognition vitiates the exclusivity of the former rules of standing in zoning cases because enforcement of the newly recognized rights cannot be deemed dependent upon the availability and good will of property owners willing to intercede for less fortunate persons whose rights have been violated. Basic to the judicial process is the concept that the existence of a statutory or common-law right implies the existence of an appropriate remedy (see 1 CJS, Actions, § 4; Sullivan v Little Hunting Park, 396 US 229; Bolivar v Monnat, 232 App Div 33) and that redress may be sought for every substantial wrong (Battalla v State of New York, 10 NY2d 237). To require those who plead violation of constitutional or statutory rights by virtue of illegal exclusion based upon "racial or economic discriminatory practices” (see Marcus Assoc. v Town of Huntington, 57 AD2d 116, 120) to demonstrate pecuniary damage related to real estate in which they
Ultimately, the traditional rules also run counter to the strong trend in New York not to exclude from the judicial process those most likely to challenge the validity of legislation or official conduct. The necessity of obtaining the intervention of propertied surrogates to enforce the constitutional or statutory rights of those not possessed of property is an outmoded concept more befitting some past era than the current State of New York jurisprudence. "The tests of 'suable interest’ in modern society cannot rest with archaic rules of property law. If law is to fulfill its role of relieving social tension, there must be recognition of reasonable relationship to a happening” (New York State School Bus Operators Assn. v County of Nassau, 79 Misc 2d 352, 355).
Whether the changes wrought by Berenson and Boryszewski have made New York’s "liberal” law of standing in zoning cases (see Campbell v Barraud, 58 AD2d 570) equivalent to the rule in the American Law Institute’s Model Land Development Code — that any person who claims that a zoning ordinance deprives him of a constitutional or statutory right has standing to challenge it judicially (see American Law Institute Model Land Development Code, § 9-104[5]; see, comment in, Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, 7, 8, supra; and Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 370-375, supra) remains for future adjudication. Nevertheless, it is difficult now to discern how the New York rule differs from the code provision.
The low-income residents Gloria Young, Deborah Clark,
Of the organizational plaintiffs, the Patchogue-Brookhaven Branch of the NAACP is part of a bona fide and nationally-recognized organization dedicated to eliminated discriminatory practices against black persons. In the second and fourth causes of action of the complaint, the claim is made that Brookhaven’s zoning policies violate the Federal and State equal protection clauses as well as particular statutes in
The motion to dismiss is denied except as to the named taxpayer plaintiffs and Percy Sutton.
