120 Misc. 485 | N.Y. Sup. Ct. | 1923
The plaintiff asks equitable relief restraining the defendants from enforcing a zoning ordinance which by its terms prevents her from using certain real property which she owns in the village of Hempstead for the business purposes for which she purchased it.
The action came on for trial at the Nassau Special Term in February. Evidence was offered on behalf of the plaintiff, but none on behalf of the defendants.
The complaint alleges in substance and the evidence showed the following facts: Mrs. Willerup, the plaintiff, entered into a contract on the 15th day of March, 1922, with the executors of the will of Henry E. Cornwell, deceased, for the purchase of the premises described in the complaint, intending to use the property for public garage purposes and the vending of automobile supplies. At that time there was in force no restriction, covenant, resolution or ordinance which would operate to prevent her from building and maintaining a public garage upon the property. Immediately thereafter she employed one of the title guarantee companies to examine the title; and, the company having reported that the premises were free of incumbrances and unrestricted as to use, she completed her purchase, receiving a deed conveying the title to her on April 14, 1922, which deed was thereupon recorded in the office of the clerk of Nassau county. She paid for the property the sum of $8,500. Thereupon she began preparations for the construction of a business building on the premises and made certain contracts connected with such a building and with the business which she proposed to carry on on the property. These contracts were made between April 21 and 29, 1922, and were as follows:
A contract for general automobile supplies to the amount of $2,896, which she agreed to purchase and accept by May 15, 1922, and she paid on account therefor in cash $434.48. On the same date she made a contract with the Hempstead Contracting Company for the removal of trees and stumps, grading the driveway, excavating of pits for four gasoline tanks, laying of foundation and covering the surface of the driveway, for the price of $2,776 and paid on account thereof the sum of $400. On April 22, 1922, she made a contract with the Gulf Refining Company for motor lubricating oil and grease, wherein she agreed to purchase between the 22d day of April, 1922, and the 21st day of April, 1923, not less than 3,500 gallons of oil at prices therein stated. On April 27, 1922, she made a contract with C. E. Kairn, an architect, to draw plans and specifications and to supervise the construction of buildings to be erected on the premises so purchased, the esti
The action against this plaintiff brought by Edith M. Armstrong came on for trial on the 27th day of November, 1922, and resulted in a decision in favor of the plaintiff in this action on the ground of the illegality of the said resolution of May 2, 1922. Thereupon on the 5th day of December, 1922, judgment was entered dismissing the complaint in the Armstrong action and vacating the injunction above mentioned as having been granted and continued during the pendency of that action.
Because of the facts which I have referred to and the pendency of such injunction, the plaintiff ivas prevented from proceeding with the erection of the building on her property and from engaging in business as she had contemplated; and, moreover, the zoning ordinance having been passed while the plaintiff was still prevented from proceeding with the erection of the building on her property, she could not so proceed in violation of the express terms of said Building Zone Resolution if the same were to be held applicable to her property, because the said building, which she had obtained the consent of the building department of the village of Hempstead to erect, would violate the Building Zone Resolution, preventing the plaintiff from making use of her said property for the business purpose for which she had purchased it. Thereupon the plaintiff requested the trustees, in writing, to enter upon their records an appropriate resolution that the plaintiff’s premises were not subject to the provisions of the Building Zone Resolution, which request the board declined to grant.
It will be observed upon inspection of the zoning ordinance referred to that it contains no provision whereby any person whose property is affected by the terms of the ordinance may appeal
" There should be an administrative board with power under
State law:
“ * * *
ÍÍ g * * *
“ C. To vary the literal requirement of the law in individual cases of buildings where unnecessary and excessive hardship is caused and the intention of the law is equally accomplished by an alternative method to be prescribed. Not only should the powers of such a Board be specified in the ordinance, but the State Legislature should authorize a municipal authority to create such a Board and to provide in the ordinance what borderline and exceptional cases it may decide. * * * Decisions of the Board should be subject to Court review.”
He further says at pages 330 and 331:
“ Another provision that should be supplied by the state legislature is to empower the city to create a board of appeals. The city without such a grant cannot endow a board of appeals with power to decide certain borderline cases of buildings which will be enumerated in the ordinance itself, or to make variations in the provisions of the law to carry out the spirit of the law and prevent unnecessary hardship. It is a safeguard in the administration of the law to have a board of appeals. The letter of the ordinance and maps may be the extreme of hardship. No words can be used in the ordinance that will provide for the multitudinous contingencies of new buildings. If there is no board of appeals to apply the spirit of the law and vary its letter, the exercise of the police power may in certain cases be arbitrary and incur the criticism of the courts. Moreover it is a great safeguard to preserve-that elasticity which a board of appeals can give to a zoning plan in order to minimize the danger of a pronouncement of unconstitutionality by the courts. It is a well-recognized rule of the law that before an aggrieved owner can obtain a writ of mandamus from the court against a building superintendent to compel him to file plans and issue a permit, he must exhaust all of the remedies afforded him by the city. This means that before he can bring up the question of unconstitutionality he must bring his plans before the board of appeals. Experience has shown that a wise board of appeals can practically always mitigate the unfairness involved in the letter*491 of the law if the applicant has a sound and deserving case. If, however, the board of appeals will not adjust his case to suit him, he goes before the courts with all of the chances against him, for the courts will say that his plans run counter to an impartial plan covering the entire city and that in addition a fair board of appeals having the power of adjustment in cases of unnecessary hardship decided against the applicant.”
In view of the fact that the ordinance of the village of Hempstead does not provide for any board having the powers just enumerated, it seems to me that the court is required to consider the facts involved in the case with greater care to see that no injustice has been attempted, than if the property owner were in a position where she might appeal to a local board having power to vary the literal requirement of the law in individual cases of buildings, where unnecessary and excessive hardship is caused. I do not mean to be understood by this as holding that the right of review by the court is conferred in all cases where no other appellate tribunal is provided for, but only that the court, when the issue is presented, ought to look with great care into the surrounding facts and see that justice is done both to the property owner immediately affected and to the other property owners within the provisions of the Building Zone Resolution.
I think it is clear in this case that the plaintiff has suffered an individual hardship through official action which has resulted in financial loss to her and without any material benefit to the public and other property owners of the village of Hempstead. It seems to me that the line of demarkation between the “ residence district ” and the “ business district ” has been drawn with undue severity by the village authorities, so as to prevent the plaintiff from making reasonable use of her property.
The exercise of the police power in the creation of zoning districts wherein the character of the buildings or their use is provided for by ordinance is of comparatively recent origin. Its benign purpose in the protection of real property has been recognized by the courts in many states, and the statutes of this state permitting their application to the municipalities within the state have received the support of our courts as being a constitutional exercise of the police power. In the present case, however, it appears as though there has been a deliberate effort to prevent the plaintiff from making reasonable use of the property which she had purchased and which she had started to use in a legitimate business. This property is situated near the outer limits of the village of Hempstead. There are other garages and automobile supply stations in its immediate vicinity. It was not a case where
The learned counsel for the plaintiff lays great stress upon the fact that before the passage of the first resolution, and before the first injunction had been granted to enforce it, and before the passage of the Building Zone Resolution, the plaintiff had in fact begun the erection of a building for the purpose of conducting her business and had made the contracts to which I have heretofore referred, and for these reasons he argues that she was not within the provisions of the Building Zone Resolution because she was engaged in business before the passage of the ordinance. He does not contend that the Building Zone Resolution itself was not legally adopted under the provisions of the Village Law, but only that good faith required that the plaintiff’s property should not have been included within the limits of the residence district. With this contention I am inclined to agree, because it seems to me that under the circumstances developed by the evidence, the plaintiff has sustained a wrong which is unnecessary, and that the enforcement of the ordinance against her will cause injustice without any resultant benefit to the defendant, the village of Hempstead, and its inhabitants. I think that the court in the exercise of the power to apply the principles of equity and fair dealing ought not to stand idly by and see injustice accomplished, even though it be done under the forms of law. The position which the trustees of the village have taken in this matter does not commend itself to the court. They were advised in writing on June 5, 1922, by plaintiff’s application for a permit, of the plaintiff’s action and purpose, and they subsequently permitted the clerk of the village to grant her a permit for the erection of the building, and then a few days later they passed the Building Zone Resolution
It is well settled that an ordinance enacted by a municipality in pursuance of implied powers or of general legislative authority must be reasonable and not opporessive, and that unless ordinances comply with such requirement the courts will declare them void or inoperative. 2 Dillon Mun. Corp. § 589 et seq.; 28 Cyc. 368 et seq.; Village of Carthage v. Frederick, 122 N. Y. 268, 271; Fougera & Co. v. City of New York, 224 id. 269, 281; Haynes v. Cape May, 50 N. J. Law, 55, 57; Park Hill Devel. Co. v. Evansville, 130 N. E. Rep. (Ind.) 645; Koy v. City of Chicago, 263 Ill. 122, 127; Murphy v. C., R. I. & P. Ry. Co., 247 id. 614, 618. The unreasonableness need not appear on the face of the ordinance, but may be shown by evidence. Fougera & Co. v. City of New York, supra; People ex rel. Knoblauch v. Warden, 216 N. Y. 154, 162. On the other hand, where the ordinance is enacted pursuant to “ specific legislative authority defining its details and mode of enforcement ” (216 N. Y. 162), or where it has been ratified by the legislature” it is treated as a statute, and evidence is not admissible to show its unreasonableness or invalidity. Matter of Stubbe v. Adamson, 220 N. Y. 459; People ex rel. Doyle v. Atwell, 232 id. 96.
In my opinion, the zoning regulations involved in the present case were enacted pursuant to general authority and not pursuant to specific legislative authority defining the details and mode of enforcement. The power to enact such regulations was conferred on village trustees by Laws of 1921, chapter 464, adding subdivision 30 to section 89 of the Village Law. This subdivision authorizes the trustees among other things to “ regulate and restrict the location of trades and industries and the location of buildings, designed for specified uses, and for such purpose ” to “ divide the village into districts, and prescribe for each such district the trades and industries that shall be excluded or subjected to special regulation and the uses for which buildings may not be erected or altered.” It is further provided that the regulations
The unreasonable and oppressive character of the zoning regulations as applied to plaintiff's premises is made manifest by the
The only question remaining is whether the ordinance must be declared wholly void, or whether it can be declared valid in general but inoperative so far as it affects plaintiff with respect to the premises in question. For myself, I can see no insuperable objection to the latter view, and there are authorities in other states which tend to sustain it. North Jersey St. Ry. Co. v. Jersey City, supra; Mader v. Topeka, supra. Our Court of Appeals in the Fougera & Co. v. City of New York case, supra, held that the regulation there under consideration could not be declared void as applicable to parties in the situation of the plaintiff in that case, and valid as applied to those in different situations. In the present case, however, where the regulations are applicable territorially, so to speak, I can see no reason why they cannot be declared void as applied to plaintiff’s property, without affecting their validity otherwise.
Judgment for the plaintiff in accordance with the prayer of her complaint, without costs, enjoining the defendants from enforcing the zoning regulations as against her premises. Let
Judgment accordingly.