Levitt v. Incorporated Village of Sands Point

• Citation: 189 N.Y.S.2d 212,160 N.E.2d 501,6 N.Y.2d 269
• Parties: , 160 N.E.2d 501 William J. LEVITT et al., Appellants, v. INCORPORATED VILLAGE OF SANDS POINT et al., Respondents.
• Decision Date: 08 July 1959
• Court: New York Court of Appeals

Page 212

189 N.Y.S.2d 212

6 N.Y.2d 269, 160 N.E.2d 501

William J. LEVITT et al., Appellants, v. INCORPORATED VILLAGE OF SANDS POINT et al., Respondents.

Court of Appeals of New York.

July 8, 1959.

Ward R. Burns, Mineola, for appellants.

Jackson A. Dykman, Brooklyn, J. Oakey McKnight, Mineola, and Ralph W. Crolly, Brooklyn, for respondents.

Philip Huntington, Glen Cove, for Incorporated Village of Lattingtown and others, amici curiae, in support of respondents' position.

FROESSEL, Judge.

The enactment of a two-acre minimum lot area requirement is, in an appropriate case, a legitimate exercise of the police power (Village Law, Consol.Laws, c. 64, § 89, subd. 30; §§ 175, 177; Dilliard v. Village of North Hills, 276 App.Div. 969, 94 N.Y.S.2d 715; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, appeal dismissed 344 U.S. 802, 73 S.Ct. 41, 97 L.Ed. 626; Senior v. Zoning Comm. of Town of New Canaan, 146 Conn. 531, 153 A.2d 415; Fischer v. Township of Bedminster, 11 N.J. 194, 93 A.2d 378; see Franmor Realty Corp. v. Village of Old Westbury, 280 App.Div. 945, 116 N.Y.S.2d 68, motion for leave to appeal dismissed 304 N.Y. 843, 109 N.E.2d 714; Elbert v. Village of North Hills, 262 App.Div. 856, 28 N.Y.S.2d 172). The evidence in this record as to the character and location of the Village of Sands Point, with its isolated geographical position in a fringe area on the northern tip of a peninsula, and of the Residence 'A' District therein, consisting of rolling and partly wooded land in an attractive rural residential community, supports the finding of the Appellate Division on the factual issue of the reasonableness of the zoning ordinance.

Even if the validity of the regulation were 'fairly debatable', as plaintiffs' expert at the trial conceded it was, 'the legislative judgment must be allowed to control' (Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303). The presumption of validity is not changed by the fact that an amendment to a zoning ordinance is here involved (Rodgers v. Village of Tarrytown, 302 N.Y. 115, 121-123, 96 N.E.2d 731, 733-734; Shepard v. Village of Skaneateles, 300 N.Y. 115, 117-118, 89 N.E.2d 619, 620).

Considering the zoning ordinance in its particular application to plaintiffs' property, we agree with the finding of the learned Referee, affirmed by the Appellate Division, that the ordinance does not preclude the use of plaintiffs' property for any purpose for which it is reasonably adapted (Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 226, 15 N.E.2d 587, 589, 117 A.L.R. 1110). Mere lessening of profits as here, or even economic loss to an affected property owner, does not render a zoning ordinance confiscatory and thus unconstitutional in its application (Wulfsohn v. Burden, 241 N.Y. 288, 302, 150 N.E. 120, 124, 43 A.L.R. 651).

We disagree, however, with the opinion of the Appellate Division insofar as it held that plaintiffs were precluded from raising the issue of confiscation by their failure to apply for a variance under the provisions of the ordinance. The theory of this action is that plaintiffs are entitled as a matter of right to a judgment declaring the unconstitutionality of the ordinance; they do not ask for the relaxation of an assumedly valid regulation (Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 501, 121 N.E.2d 517, 521; Dowsey v. Village of...