Dowsey v. Village of Kensington

• Decision Date: 15 July 1931
• Parties: DOWSEY v. VILLAGE OF KENSINGTON et al.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 221

177 N.E. 427

DOWSEY

v.VILLAGE OF KENSINGTON et al.

Court of Appeals of New York.

July 15, 1931.

Action for a declaratory judgment by Corrie M. Dowsey against the Village of Kensington and others. From a judgment of the Appellate Division, Second Department (231 App. Div. 746, 245 N. Y. S. 819), reversing on the law and facts a judgment of the Special Term entered on the report of a referee in favor of the defendant, dismission the complaint, the Appellate Division having reversed and directed a judgment for the plaintiff, defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Edward M. Bassett and August C. Flamman, both of New York City, for appellants.

James L. Dowsey and G. Burchard Smith, both of Mineola, and Lawrence R. Condon, of New York City, for respondent.

LEHMAN, J.

The village of Kensington is situated in a territory known as the Great Neck section of Long Island. In that section, contiguous to the city of New York, homes have been built by many who sought there a grace and dignity of life difficult to attain in or near great urban industrial centers. The village communities scattered through that section are almost completely residential. Mercantile, industrial, and social activities there serve, almost exclusively, the wants of the residents of the section. The village of Kensington is coterminous with a plot of land which was originally developed as a single residential unit. On the original plan, the streets were laid out in a manner calculated to secure an atmosphere of dignified, quiet retirement, and the lost fronting on those streets were sold subject to drastic restrictions. The village has a frontage of about one-fifth of a mile on one side of Middle Neck road, the most active thoroughfare of that district, and extends from that road nearly a mile to Manhasset bay. Four streets running from east to west converge, or end, at a village street called Park lane, near Middle Meck road, and there is only one entrance to the village from that public thoroughfare. Near the opposite end of the village the streets again converge to form a single entrance from Shore road. On the opposite side of Shore road there is a small plot of land running to the water, which in large part is used for a private park and swimming pool by some of the village residents. The plaintiff's land includes the whole Middle Neck frontage of the village south of the entrance to the village and runs back to Park land, one of the village streets. Its area is about 76,000 square feet.

The village of Kensington in 1926 passed a zoning ordinance. With the exception of the small plot of land at the opposite end of the village, extending from the Shore road to Manhasset Bay, the entire village, including the plaintiff's land, had been placed in one ‘use’ district, and in that district the ordinance provides that ‘no buildings shall be erected other than a building with its usual accessories, arranged, intended or designed exclusively for one or more of the following uses: 1. A dwelling for not over one family or for one housekeeping unit only: * * * 2. Churches. 3. Schools, libraries or public museums. 4. Buildings for the Village Fire and Police Departments and such other buildings as may be necessary for Village purposes.’ The plaintiff, claiming that the attempted restriction of the use of her land is unreasonable and beyond the power of the village authorities, has brought this action to obtain a declaratory judgment that the zoning ordinance is to that extent ineffective and void. Judgment in favor of the defendant was reversed by the Appellate Division, which adjudged that the zoning ordinance ‘in so far as it restricts the use of the premises in the village of Kensington on the easterly side of Middle Neck road to residential purposes only is legally unreasonable and therefore invalid.’

The evidence presented upon the trial leaves no doubt that the market value of the land owned by the plaintiff is greatly diminished by the restrictions upon its use. There are one hundred and seventy-eight one-family detached residences in the village, and very little undeveloped land. The zoning ordinance is intended to prevent the intrusion of business or apartment buildings and to preserve the rural quiet of the village. The plaintiff's land is at the edge of the village, fronting on a frequented highway. The village has no power to restrict the land on the opposite side of that highway, nor the land to the north or south of the narrow strip of land embraced in the village. The township in which the village is situated has adopted zoning regulations for lands not within any incorporated villages. Other villages have also adopted zoning regulations. All these regulations permit the erection of business or apartment buildings, or both, along Middle Neck road. For several years no one-family dwelling has been erected upon that highway. While less frequented roads are suitable for the erection of homes for those who seek seclusion and quiet, the main highway of the section is better suited for the erection of business or apartment buildings. Concededlyit is more valuable for that use and less valuable for use for one-family detached dwellings.

Residence districts into which business may not intrude must have definite boundaries, and the Legislature has left to the local authorities the decision where those boundaries should be placed ‘for the purpose of promoting the health, safety, morals, or the general welfare of the community.’ Village Law (Consol. Laws, c. 64) § 175. Business buildings just beyond the residence district may render the land just within the residence district less desirable for residential use. Special hardship to an individual owner must at times be suffered for the general welfare, but neither the Legislature nor the local authorities acting under power delegated by the Legislature may impose such special hardship unnecessarily and unreasonably. Such special hardship may at times be avoided or mitigated by a special variation of a general zoning regulation. The zoning ordinance which the plaintiff attacks has made provision for such variation in particular cases by the board of appeals. The plaintiff has not seen fit to apply for such a variation. The defendant urges that, until such an application has been made and refused, the plaintiff has not exhausted the remedies afforded by the ordinance, and anaction in equity to declare the zoning ordinance unreasonable and void as to her is premature. Until then it is said, there is no controversy between the parties.

Doubtless it is difficult, perhaps impossible, for a legislative body enacting a zoning regulation to envisage the result of its regulation upon each piece of property which may be affected, or to weigh and adjust each private and public interest that may be involved. The exclusion of business from a particular district may promote the general welfare of the district, yet may destory the value of a particular plot therein which cannot reasonably be used for residence purposes. In the...