Baddour v. City of Long Beach

• Citation: 18 N.E.2d 18,279 N.Y. 167
• Parties: BADDOUR v. CITY OF LONG BEACH.
• Decision Date: 29 November 1938
• Court: New York Court of Appeals

279 N.Y. 167

18 N.E.2d 18

BADDOUR

v.CITY OF LONG BEACH.

Court of Appeals of New York.

Nov. 29, 1938.

Action by Marie K. Baddour, as administratrix c.t.a. of Raschid S. Baddour, deceased, against the City of Long Beach seeking a judgment declaring that the zoning ordinances of defendant do not prohibit the use of certain premises as a rooming and boarding house and that, if they do, the ordinances are beyond the power of the city to enact and enforce. From a judgment of the Appellate Division, 251 App.Div. 834, 297 N.Y.S. 796, unanimously affirming a judgment of the Trial Term dismissing the complaint, plaintiff appeals.

Affirmed.

LOUGHRAN, J., CRANE, C.J., and LEHMAN, J., dissenting. Appeal from Supreme Court, Appellate Division, Second Department.

Winifred Sullivan and Charles C. Clark, both of New York City, for appellant.

Bernard H. Reich, of New York City, for respondent.

RIPPEY, Judge.

Plaintiff asks for judgment in this action declaring that the zoning ordinances of the city of Long Beach do not prohibit the use of the premises at 116 Magnolia boulevard as a rooming and boarding house, but, if they do, that the ordinances are beyond the power of the city to enact and enforce. The expressly declared and ultimate purpose of the action is to restrain the city from interfering with the use of the premises in question for the purpose of operating thereon a rooming and boarding house as a business. We limit our decision, as we must, to the issue as framed and to the relief desired.

The territory now embraced within the city of Long Beach, a well-known and popular summer resort, was laid out in 1907 and developed by two real estate development corporations known as The Estates of Long Beach and West End Seashore Bungalows, Inc. It is recited in the zoning ordinance adopted by the city on August 18, 1922, to which later reference is made, that ‘a uniform scheme and plan of development and beautification of said properties was adopted and adhered to by said companies, with wide Boulevards running North and South from the Channel to the Ocean, in which said Boulevards parkings were provided for grass and flowers and shrubs, and uniform East and West Streets were laid out, with thoroughfares approximatinga City block in width, similarly parked and beautified,’ and that ‘said development companies in sales of lots and plots in said properties to individual purchasers restricted certain sections and streets and portions of streets to residential structures of high class and costly type and other sections and streets and portions of streets to residences of a less costly type and other sections and streets and portions of streets to business structures and uses.’ A boardwalk many miles in length was constructed along the ocean front. All apartments, hotels, places of amusement, boarding houses and business establishments of every nature were generally and principally limited to an area immediately adjacent to this boardwalk along Broadway and facing the ocean and to both sides of another street (Park avenue) several blocks to the north. The territory between the rear line of lots facing on Broadway and West Park avenue to the north was limited to highly restricted residential use, where singleunit one-family detached dwellings were constructed, each for one housekeeping unit only, ranging in cost from twelve thousand to twenty-five thousand dollars each.

The property in question is located within that highly restricted residential area. It was originally conveyed from the Estates of Long Beach to one Gillespie on July 28, 1908. The deed contained, among other restrictions relating to location, size, character and cost of buildings, a covenant binding upon the heirs and assigns of the grantee and similar in wording to similar covenants in all deeds to property within this area, reading as follows: ‘That neither the said party of the second part nor his heirs or assigns shall or will manufacture or sell or cause to be manufactured or sold on any portion of the premises hereby conveyed any goods or merchandise of any kind and will not carry on, or permit to be carried on, on any part of said premises any trade or business whatsoever or any boarding house.’ This covenant, it was provided, should run with the land until January 1, 1930, although it might be annulled by agreement between the grantor and the grantee, his heirs or assigns, prior to that time.

On August 18, 1922, in accordance with chapter 635, section 74, subd. 3, of the Laws of 1922, a zoning ordinance for the city of Long Beach was duly adopted. The ordinance recites that the original owners of the property embraced within the territory of the city had ceased to be the owners of any property within such territory and that the ordinance was adopted ‘to maintain the beauty and symmetry of development of business and residential properties within the City of Long Beach, and in order to protect the citizens of the City of Long Beach who have invested in substantial homes and in business properties on the faith of the maintenance and control over the restrictions hereinbefore referred to and the control of said development companies over the character and form of residential and business structures to be erected within the City and in order to protect the City of Long Beach and its inhabitants against the hazards of fire, and in order to provide for the health, comfort and welfare of the people of the City of Long Beach.’ It was an interim ordinance supplemental to the covenants contained in the deeds to the property and designed to effect compulsory obedience to the restrictive covenants in the grants from the original owners ordained to be in the interests of the health, safety and the general welfare, convenience and common good of the people and to make permanently effective the design and purpose with which the whole area of the city was laid out and developed. Restrictive covenants in grants as to use may be enforced. Baumert v. Malkin, 235 N.Y. 115, 139 N.E. 210;Levy v. Schreyer, 177 N.Y. 293, 69 N.E. 598. Ordinances to compel obedience to such covenants, when non-discriminatory and applicable to all alike within a given area, even though they involve incidental aesthetic considerations, may be adopted and enforced. Lincoln Trust Co. v. Williams Bldg. Corporation, 229 N.Y. 313, 128 N.E. 209;Wulfsohn v. Burden, 241 N.Y. 288, 299-302, 150 N.E. 120, 43 A.L.R. 651.

On July 8, 1930, the city adopted a permanent zoning ordinance in which was carried forward the substance of the provisions of the interim ordinance. The territory was divided, according to the ordinance and the zoning map attached, into nine residential districts, three business districts, and industrial districts. The property in question was located in ‘Residence A’ district, which has the highest restrictions of all districts shown on the zoningmpa. The ordinance restricts the use of buildings in this district, so far as material here, to ‘a one-family detached house for one housekeeping unit only’ with ‘accessory uses customarily incident to any use permitted by the provisions of this section,’ but such accessory uses referred to in the section had to do entirely with a garage located at the rear of the principal building. The building on the land in which plaintiff is interested was designed, used and occupied exclusively as a one-family private residence from the time of its construction to the time of the adoption of this ordinance. It never had been used for a boarding or rooming house. Plaintiff's use of the property is subject to any applicable restriction. Baddour acquired the property which is the subject-matter of this action on January 26, 1934. Whatever may be the form of conveyance by which he acquired title, it was acquired subject to the restrictions as to use contained in the Gillespie deed and carried forward in the interim and subsequent zoning ordinances adopted by the city. Lincoln Trust Co. v. Williams Bldg. Corporation, supra.

Fundamentally, zoning ordinances arise out of and are sustained by considerations of the health and welfare of the community. On that basis we have sustained use regulations for the segregation in residential districts of detached, one-family houses from multi-family houses and dwellings ( Fox Meadow Estates, Inc., v. Culley, 233 App.Div. 250, 252 N.Y.S. 178, affirmed 261 N.Y. 506, 185 N.E. 714) and of business from residential districts. If the zoning regulations are reasonable and substantially related to the health, safety, morals, the common good and general welfare of the community, they will be upheld (Lincoln Trust Co. v. Williams Bldg. Corporation, supra; Village of Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016), but the police power for the enactment of zoning regulations has been extended beyond strict considerations of health and safety (Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120, 43 A.L.R. 651) and ‘aesthetic considerations are, fortunately, not wholly without weight in a practical world’ (Dowsey v. Village of Kensington, 257 N.Y. 221, 230, 177 N.E. 427, 430, 86 A.L.R. 642). No question is here raised as to the regularity of the adoption of the zoning ordinances. The power to adopt them, within constitutional limitations, cannot be...