Kurlander v. Incorporated Village of Hempstead

• Decision Date: 10 August 1961
• Citation: 224 N.Y.S.2d 461,31 Misc.2d 121
• Parties: Erwin H. KURLANDER and Jacob Leftoff, Plaintiffs, v. INCORPORATED VILLAGE OF HEMPSTEAD, Defendant.
• Court: New York Supreme Court

Page 461

224 N.Y.S.2d 461

31 Misc.2d 121

Erwin H. KURLANDER and Jacob Leftoff, Plaintiffs, v. INCORPORATED VILLAGE OF HEMPSTEAD, Defendant.

Supreme Court, Special Term, Nassau County.

Aug. 10, 1961.

Milton Pinkus, Hempstead, for plaintiffs.

Saul Horowitz, Hempstead, for defendant.

WILLIAM R. BRENNAN, Jr., Justice.

This action tried before me without a jury, seeks a declaratory judgment to the effect that professional office use is permissible in a Residence B zone under the zoning ordinance of the Village of Hempstead without such use being accessory to a dwelling in which the practitioner resides, or, if not so permitted, that the ordinance is unconstitutional as applied to plaintiffs' properties as bearing no substantial relationship to public health, safety, morals or welfare. The sufficiency of the complaint has been upheld. Kurlander v. Hempstead, N.Y.L.J., 8/4/60, Sup.Ct., Nassau Co. (Meyer, J.).

Plaintiffs, one a physician and the other a dentist, are, with their respective wives, owners of two separate dwellings and premises situated on the south side of Front Street, between Kernochan Avenue and Broadfield Road in a Residence B district in the Village of Hempstead. Each plaintiff practiced his profession from a portion of these premises and utilized the balance as his home for some years prior to July 12, 1955, the date on which the applicable zoning ordinance of the Village was adopted. Subsequent thereto both plaintiffs continued to practice their professions at the same locations but moved their families to new dwellings, renting the living quarters of their former homes to tenants.

The first question to be decided is whether, under the proper construction of the ordinance, the plaintiffs had the right to continue their professional practice at these premises which they no longer occupied as residences, or whether such practice was limited under the ordinance to premises actually occupied by them as living quarters.

The ordinance divides the Village into ten districts, six of which are Residence districts, three of which are Business districts and one of which is an Industrial district. Residence AAA is limited to single family dwellings with 75 foot frontage, Residence AA to single family with 50 foot frontage, Residence A to single family with 40 foot frontage, Residence BB to two family dwellings with 40 foot frontage, Residence B to multiple dwellings and Residence C to all uses in more restricted districts as well as public or private parking fields. Some of these districts, of course, have additional distinctive attributes which are not relevant to the question presented here. In Residence AAA, AA and A districts, there are permitted accessory uses by professional persons, but these uses are limited in each instance to dwellings '* * * in which practitioner resides.' In the Articles of the ordinance pertaining to Residence BB and B districts no mention is made of accessory uses. General language is employed permitting a building to be used '* * * for any purpose permitted in a more restricted district * * *.' Such language is sufficiently broad to include all such uses, whether principal or accessory, permitted in any of the 'A' districts. Indeed any other construction would authorize more extensive use in the more restricted zones, an obviously unintended result. The absence of any words of limitation, however, raises the question as to whether professional use was to be authorized in these 'B' districts unfettered by the restrictions imposed in the 'A' districts, or whether, on the other hand, the uses were carried over into the 'B' districts subject to the limitations previously imposed.

Neither possibility would appear to be inconsistent with the overall purpose of a valid zoning ordinance. Thus, a local legislative body might well differentiate between accessory uses for multiple dwelling districts and single family residence districts. An accessory use entirely proper for one might be utterly inappropriate for the other. See Dellwood Dairy Co., Inc. v. City of New Rochelle, 7 N.Y.2d 374, 197 N.Y.S.2d 719, 165 N.E.2d 566. There would appear to be no innate inconsistency in permitting professional offices in multiple dwellings without the necessity of requiring the practitioner to reside in the apartment while requiring professional residency in a single family zone. Indeed a far less obvious distinction appeared in the ordinance construed in Town of North Hempstead v. White, 1 Misc.2d 228, 144 N.Y.S.2d 358, aff'd 1 A.D.2d 781, 148 N.Y.S.2d 461. Thus any argument based upon consistency of accessory uses in all six residential districts must fall. There is no logical need for such consistency.

If not for consistency that, why should not court read into the statute the missing words of limitation? We are told by the defendant Village that since the Residence B district section of the ordinance permits all uses allowed in more restricted districts, and since the only professional uses allowed in these latter districts are accessory, that we...