Friedland v. Diamond
| Citation | 67 Misc.2d 642,324 N.Y.S.2d 578 |
| Parties | Sol FRIEDLAND, Plaintiff, v. Michael DIAMOND, As Mayor, et al., Defendants. |
| Decision Date | 15 September 1971 |
| Court | United States State Supreme Court (New York) |
Weinsoff, Weinsoff & Weinsoff, Ellenville, for plaintiff (Herbert Weinsoff, Ellenville, of counsel).
Samuel W. Eager, Jr., Village of Wurtsboro Atty., for defendants.
Within the context of an action for a declaratory judgment the plaintiff moves for summary judgment. The defendants cross-move both to dismiss the complaint (CPLR § 3211) and for summary judgment on undisputed facts (CPLR § 3212). The facts are as follows:
On August 5, 1969 the Village of Wurtsboro in Sullivan County enacted an ordinance known as the 'Village of Wurtsboro Trailer and Trailer Park Ordinance'. Plaintiff made application for a trailer permit on May 22, 1970. The application was denied. On July 28 1970 the Village Board of Wurtsboro passed a 'Revised Trailer and Trailer Park Ordinance', Part II of which makes it 'unlawful for a corporation, business or invidiaual to set up or erect on private property for public use within the incorporated limits of the Village of Wurtsboro, a campsite which is to be used as temporary residences for the transient public * * *' Plaintiff, owner of a large 30 acre tract of land in the Village, applied anew and the denial of that application was received after the commencement of the action for declaratory judgment but before the return date of this motion.
Plaintiff seeks judgment summarily determining that Part II of the Revised Ordinance is unconstitutional. His attack is predicated on two grounds; (1) that Part II of the Ordinance is prohibitory in effect in violation of the dicta in (Matter of Mid-State Adv. Corp. v. Bond, 274 N.Y. 82, 8 N.E.2d 286), and (2) Section 89, subdivision 69 of the Village Law grants only regulatory authority to Village Boards in the State of New York with respect to house trailer camps, tourist camps and house trailers.
First, I know of no case in this state, nor has any been drawn to my attention, that specifically deals with tenting on private property by people other than the owners or their guests. Section 89, subdivision 69 of the Village Law relates solely to 'house trailer camps, tourist camps and house trailers'. Clearly, 'house trailer camps' and 'house trailers' are moveable, semi-moveable or permanent structures or mobile homes on wheels or foundations and the right of municipalities to regulate them is too well recognized a principle to require discussion here. Does the nomenclature or verbal classification 'tourist camps', however, embrace tenting on private property by the transient public so as to bring the proposed construction of a temporary tent campsite by plaintiff within those activities over which the local municipality has only regulatory powers pursuant to section 89 (subd. 69) of the Village Law? And, if it does, does overall regulatory powers include the power to prohibit, if such prohibition promotes aesthetic values and the public welfare? If the first question were answered in the negative the problem at hand would be greatly simplified and the conclusion that the Village, under its police powers, could proscribe the subject activity on aesthetic and public welfare grounds, could be easily reached. Such an answer, however, would avoid the critical issue implicit in plaintiff's first ground, i.e., that the authority to regulate precludes, absolutely, the power to prohibit. Therefore, I shall discuss this issue as if tenting were an included subject of section 89 (subd. 69) of the Village Law.
In 1937 the Court of Appeals, reversing the Appellate Division, held (Matter of Mid-State Adv. Corp. v. Bond, 274 N.Y. 82, 8 N.E.2d 286) an ordinance of the City of Troy prohibiting the erection of billboards anyplace within the city to be unconstitutional. Since this decision reinstated the opinion of Special Term which struck down the law because it prohibited rather than regulated the erection of bill-boards, the maxim that regulatory authority does not include prohibitory power entered into the dicta of law concerning the exercise of police powers by municipalities taking their powers as grants from a larger governmental sovereign. This maxim or rule, always more proverbial than real, gradually eroded over the years as populations expanded and individual citizens came into greater conflict with the government nearest them and gave vent to their displeasures with ingenious demonstrations of protest. In (People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272) the City of Rye, New York adopted an ordinance prohibiting the erection of clothes lines or other similar devices on a front or side yard abutting a street. Admittedly, the law was enacted in response to the conduct of a citizen who erected a single clothes line in each of five consecutive years in his front...
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