Berenson v. Town of New Castle

• Citation: 38 N.Y.2d 102,341 N.E.2d 236,378 N.Y.S.2d 672
• Parties: , 341 N.E.2d 236 Mitchell BERENSON et al., Appellants, v. TOWN OF NEW CASTLE et al., Respondents.
• Decision Date: 02 December 1975
• Court: New York Court of Appeals

Page 672

378 N.Y.S.2d 672

38 N.Y.2d 102, 341 N.E.2d 236

Mitchell BERENSON et al., Appellants, v. TOWN OF NEW CASTLE et al., Respondents.

Court of Appeals of New York.

Dec. 2, 1975.

Stuart R. Shamberg, Mount Kisco, for appellants.

Arden H. Rathkopf and Daren A. Rathkopf, Glen Cove, for respondents.

JASEN, Judge.

The plaintiffs in this declaratory judgment action attack the validity of the Zoning Ordinance of the Town of New Castle in its entirety on the ground that the ordinance excludes multifamily residential housing from the list of permitted uses.

The Town of New Castle is a relatively quiet and undeveloped suburban community nestled in the hills of northern Westchester County. The town is but 35 miles north of New York City, and this close proximity to a major metropolitan center has placed it directly in the path of the post-World War II rush to suburbia. Since 1950, New Castle has experienced a three-fold increase in population, growing from 5,312 inhabitants to over 17,000. The town fathers, anxious to preserve as much of the rustic township as they could, took steps to prevent the construction of both apartment houses and small one-family homes in the town. Ever since the first zoning ordinance was adopted by New Castle, the town has refused to authorize or permit the development of any multiple-family dwellings within the boundaries of the town. A few older apartment buildings were built prior to the enactment of the ordinance and exist as nonconforming uses.

The present zoning ordinance, which was enacted in 1971 to replace a 1945 version, provides for 12 types of districts. Four districts are restricted to residential use based on minimum lot size. Districts R--2A and R--1A mandate two-acre and one-acre minimum lot sizes respectively, while the other two residential classes call for one-half and one-quarter acre lot development. Six districts are set aside for business development and another two are earmarked for industrial uses. However, in terms of surface area, most of the town is restricted to one-and two-acre residential development. In none of the 12 districts would the development of multiple-family dwellings be permitted.

The plaintiffs, either individually or through corporations, had controlled or owned since 1955 a parcel of 50 acres situated on the southern end of New Castle. Their land fronts on Bedford Road to the west and Old Farm Road to the southwest and is zoned for one-acre residences. Indeed, the plaintiffs originally owned more land in the same parcel but subdivided it and constructed one-family houses, in conformity with existing zoning requirements. The properties adjoining the plaintiff's parcel on the west and east are zoned for one-half acre development. The property on the northern boundary is set aside for one-quarter acre lots. Just beyond the one-half acre zone to the west of the plaintiffs' property lies a relatively large retail, commercial and industrial zone.

In early 1972, the plaintiffs planned the construction of a large condominium development on their remaining property. The proposed improvements would include public water and sanitary sewers, a five-acre lake, and a recreational area (including swimming pools and tennis courts) of seven or eight acres. The condominium's community would be 'age-oriented' and, with respect to married couples, either the husband or the wife would have to be at least 50 years of age. Mitchell Berenson, one of the plaintiffs, was informed by town officials that the requested zoning changes would not be made. Thereupon, this action was brought to declare the town's zoning ordinance unconstitutional. In denying cross motions for summary judgment, Special Term found that triable issues of fact existed--the principal question being whether the need for multiple-family housing in New Castle 'is so compelling as to amount to a deprivation of the constitutional rights of those people, who are presently, or would if economically feasible, become residents of the Town.' On cross appeals to the Appellate Division, that court stated its agreement with Special Term's delineation of factual issues and affirmed the order denying summary judgment. The Appellate Division granted leave to appeal to our court upon a certified question as to the correctness of its order of affirmance. We agree that factual issues remain to be resolved upon a plenary trial and that the motions for summary judgment were properly denied. Accordingly, we would affirm the order of the Appellate Division and answer the certified question in the affirmative. However, we disagree with the formulation of the issues by the lower courts. In view of the highly significant public policy considerations involved, it is necessary that we set forth our own views at some length in order that, upon the trial to be had in this case, the proper factual issues will be considered. ¹

In determing under what circumstances, if at all, a zoning board may adopt a regulation that would prohibit entirely the construction of any new multiple residential housing within its borders, a review of the legislative and judicial history of zoning would be instructive.

The Legislature has authorized town zoning boards, '(f)or the purpose of promoting the health, safety, morals, or the general welfare of the community,' to adopt zoning ordinances regulating and restricting, among other things, 'the height, number of stories and size of buildings and other structures,' the size of building lots, and the over-all population density. (Town Law, § 261.) Zoning ordinances are susceptible to constitutional challenge only if 'clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.' (Euclid v. Ambler Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 522, 154 N.Y.S.2d 849, 858, 136 N.E.2d 827, 834.) Thus, it necessarily follows that the validity of a zoning ordinance depends on the facts of the particular case and whether it is 'really designed to accomplish a legitimate public purpose.' (Matter of Wulfsohn v. Burden, 241 N.Y. 288, 299, 150 N.E. 120, 123.)

In 1931, our court struck down a village ordinance which, with the exception of a small plot of land at the end of the village, placed the entire village into one 'use' district. (Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, Supra.) Buildings in the district were restricted to one-family dwellings, church structures and public buildings, such as libraries, schools and police stations. (257 N.Y., at p. 225, 177 N.E., at p. 428.) The court said that 'the zoning ordinance has been framed for the purpose of excluding (apartment) buildings from the village in order to preserve it as a secluded quiet community of one-family detached homes.' (257 N.Y., at pp. 229--230, 177 N.E., at p. 430.) As such, the restrictions imposed were 'patently unreasonable.' (257 N.Y., at p. 230, 177 N.E., at p. 430.)

Shortly after the Dowsey decision was handed down, the Appellate Division, Second Department, upheld a Scarsdale ordinance which restricted the area of the village where apartment buildings might be constructed. (Matter of Fox Meadow Estates v. Culley, 233 App.Div. 250, 252 N.Y.S. 178, affd. without opn. 261 N.Y. 506, 185 N.E. 714.) The village already had a number of business establishments and apartment houses which, by a natural process of site selection, were located in the vicinity of the local railroad stations. The zoning ordinance limited business and apartment house districts to the territory adjacent to the areas where such development had already occurred. The remainder of the village was zoned for single-family homes. The ordinance was held valid since a locality 'may adopt plans suitable to its own peculiar location and needs, acting reasonably.' (233 App.Div. at p. 252, 252 N.Y.S. at p. 180.)

In 1959, we sustained the validity of a village minimum lot requirement. (Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269, 189 N.Y.S.2d 212, 160 N.E.2d 501.) The court ruled that a reasonableness requirement was satisfied since the village was in an 'isolated geographical position in a fringe area on the northern tip of a peninsula'. Moreover, the district itself consited of 'rolling and partly wooded land in an attractive Rural residential community.' (6 N.Y.2d, at p. 272, 189 N.Y.S.2d, at p. 214, 160 N.E.2d, at p. 502 (emphasis in original).) We stated that the enactment of a two-acre minimum lot requirement might, in an appropriate case, be a legitimate exercise of the police power. Significantly, the lot size requirement did not extend throughout the village itself, but only applied within one residential district. (See, also, Hopewell Gardens v. Town of East Fishkill, 76 Misc.2d 234, 349 N.Y.S.2d 481; Gignoux v. Village of Kings Point, 199 Misc. 485, 99 N.Y.S.2d 280 (two other instances where exclusive zoning ordinances were upheld).)

More recently, we ruled that a town may permissibly adopt a program providing for phased growth. (Matter of Golden v. Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 376, 334 N.Y.S.2d 138, 150, 285 N.E.2d 291, 300, app. dsmd. 409 U.S. 1003, 95 S.Ct. 436, 34 L.Ed.2d 294, Supra.) However, we were careful to note that 'community efforts at immunization or exclusion' would not be countenanced. (30 N.Y.2d, at p. 378, 334 N.Y.S.2d, at p. 152, 285 N.E.2d, at p. 302.)

New York is not the only urban State to confront the issue presented here. As in our own State, however, the results have been mixed. The Supreme Courts of Pennsylvania and New Jersey have struck down exclusionary zoning ordinances. (Appeal of Girsh, 437 Pa. 237, 263 A.2d 395; Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713, app. dsmd. 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28, 44 U.S.Law Week 3181.) A Michigan court has taken a similar...