Bon-Air Estates, Inc. v. Building Inspector of Town of Ramapo

• Decision Date: 07 April 1969
• Docket Number: BON-AIR
• Citation: 31 A.D.2d 502,298 N.Y.S.2d 763
• Parties: In the Matter ofESTATES, INC., Respondent, v. The BUILDING INSPECTOR OF the TOWN OF RAMAPO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 763

298 N.Y.S.2d 763

31 A.D.2d 502

In the Matter of BON-AIR ESTATES, INC., Respondent, v. The BUILDING INSPECTOR OF the TOWN OF RAMAPO, Appellant.

Supreme Court, Appellate Division, Second Department.

April 7, 1969.

Robert H. Freilich, Spring Valley, (Bernard E. Stanger, New York City, of counsel), for appellant.

David Coral, and Reuben Ortenberg, Suffern, for respondent.

Before CHRIST, Acting P.J., and BRENNAN, RABIN, MUNDER and MARTUSCELLO, JJ.

SAMUEL RABIN, Justice.

The basic problem presented on this appeal is whether the Town of Ramapo had authority to enact the local legislation stuck down by the Special Term (Local Laws, 1967, Nos. 4 and 5 of the Town of Ramapo), which legislation imposed upon builders of one- and two-family homes in Ramapo the obligations of (1) holding in escrow, until transfer of title to the purchaser, the contract down payment received on the sale of any such premises and (2) depositing cash or an undertaking in the amount of $1,000 upon applying for a certificate of occupany, to insure good workmanship and compliance with the applicable building codes and local regulations.

In an earlier and kindred case, involving the same local legislation, this court did not pass upon the constitutionality thereof. It was merely held that the granting of an injunction Pendente lite restraining the enforcement of this legislation, was warranted upon the filing of a suitable undertaking (Rockland County Bldrs. Ass'n v. McAlevey, 29 A.D.2d 975, 289 N.Y.S.2d 452).

At bar, the parties have principally addressed themselves to the constitutionality of the municipal legislation, with petitioner seeking a CPLR article 78 review of the validity thereof by direct attack. While an article 78 proceeding is not available to review the propriety or wisdom of a legislative act, such proceeding is a proper vehicle to challenge the constitutional power of a local legislative body to enact municipal legislation on subject matters unauthorized by the common law, the constitutions of the State an the Nation, or the statutes (see Matter of Policemen's Benevolent Ass'n of Westchester County v. Board of Trustees of Vil. of Croton-on-Hudson, 21 A.D.2d 693, 695, 250 N.Y.S.2d 523, 527, and cases there cited).

In our opinion, the argument that the local laws here assailed were sanctioned by the general police powers vested in the Town of Ramapo under common law doctrine is without merit. The residual police power reposes in the State, not in any of its political subdivisions; and a municipality can only exercise police power when it has specifically or impliedly received a delegation of such power from the State (Wells v. Town of Salina, 119 N.Y. 280, 287, 23 N.E. 870, 871, 7 L.R.A. 759; Incorporated Vil. of Brookville v. Paulgene Realty Corp., 24 Misc.2d 790, 793, 200 N.Y.S.2d 126, 131, affd. 14 A.D.2d 575, 218 N.Y.S.2d 264, affd. 11 N.Y.2d 672, 225 N.Y.S.2d 750, 180 N.E.2d 905; William Mullare, Inc. v. Town of Hempstead, 11 Misc.2d 245, 246, 176 N.Y.S.2d 55, 56). At bar, these local laws are not validated by any express or implied grant of general police power to the municipality.

Apart from the lack of general police power as a validating source, it is our further opinion that the State Constitution and pertinent statutes do not in any event authorize the local laws here involved. Subdivision 15 of section 130 of the Town Law authorizes local legislation:

'Promoting the health, safety, morals or general welfare of the community, including the protection and preservation of the property of the town and of its inhabitants, and of peace and good order, the benefit of trade and all other matter related thereto, insofar as the same shall not be inconsistent with existing law.'

New article 9 of the State Constitution establishes a bill of rights for local governments (§ 1) and authorizes the Legislature to grant to municipalities the authority to legislate with respect to:

'The government, protection, order, conduct, safety, health and well-being of persons or property therein' (§ 2, subd. (c), par. (10)).

In pursuance of this constitutional addition, effective on January 1, 1964, the Legislature adopted the Municipal Home Rule Law, effective the same date (L.1963, ch. 843). Subdivision 1 of section 10 thereof provides that each town may adopt local laws, not inconsistent with the Constitution or general laws, relating to certain matters, including the following (in par. a, subpar. (11)):

'The government, protection, order, conduct, safety, health and well-being of persons or property therein. This provision shall include but not be limited to the power to adopt local laws providing for the regulation or licensing of occupations or businesses * * *.'

It is argued that the learned Special Term was in error in holding that the Town had no power to enact these Local Laws 4 and 5, since they were specifically authorized by both article 9 of the State Constitution and section 10 of the Municipal Home Rule Law. In part proof of this last assertion, it is pointed out that the Governor's veto message on 1966 Assembly Bill, Introductory Number 4985, Print Number 6309, suggests, by reference to an expression of opinion by The Office for Local Government, that the police power delegated to towns is sufficient to authorize the adoption of local laws to require the posting of payment and performance bonds by builders. We note that the constitutionality of the bill vetoed was not discussed.

We are of the opinion that the specific legislation here under consideration, namely, Local Law No. 4 as enacted and as superseded by Local Law No. 5, is unconstitutional and invalid on its face. It is in excess of any delegated power reposed in a town by the cited sections of the Constitution, the Town Law and the Municipal Home Rule Law. That portion of this local law which purports to indemnify purchasers from builders of one- and two-family houses against damage from improper construction by the escrow deposit of the contract down payment and the posting of cash or a bond with the application for a certificate of occupancy is unconstitutional, as an unnecessary infringement on the right of contract between individuals. These provisions are also discriminatory, in that they are restricted to builders of one- and two-family homes on land held primarily for resale, while exempting from their operation other builders, either of multiple dwellings or commercial properties, who ostensibly require no further supervision and who may build free of the requirements to deposit down payments or to post maintenance security upon application for building permits or certificates of occupancy.

Whatever may be the power of a municipality to regulate a particular business, occupation or trade, it does not include the power to abolish a lawful trade (62 C.J.S. Municipal Corporations § 237, p. 598). Where the business, if honestly and properly conducted, inflicts no public injury, the conduct of a few 'is no justification for a law which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public' (Tolliver v. Blizzard, 143 Ky. 773, 776, 137 S.W. 509, 511, 34 L.R.A., N.S., 890). Where the business...