McDonough v. Apton

• Decision Date: 30 May 1975
• Citation: 368 N.Y.S.2d 603,48 A.D.2d 194
• Parties: Peter J. McDONOUGH et al., Respondents, v. Vincent P. APTON and H. Virginia Apton, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 603

368 N.Y.S.2d 603

48 A.D.2d 194

Peter J. McDONOUGH et al., Respondents, v. Vincent P. APTON and H. Virginia Apton, Appellants.

Supreme Court, Appellate Division, Fourth Department.

May 30, 1975.

Johnson, Reif & Mullan, P.C., Rochester, for appellants; George A. Schell, Rochester, of counsel.

Easton, Bittker & Wolf, Rochester, for respondents; George T. Wolf, Rochester, of counsel.

Before MOULE, J.P., and CARDAMONE, SIMONS, GOLDMAN and DEL VECCHIO, JJ.

MOULE, Justice.

The primary issue presented on this appeal concerns the validity of a zoning ordinance which prohibits the display of goods for sale in yard areas and the use of a building located within an industrial zone for residential purposes.

Respondents Apton have resided at 62 North Main Street in the Village of Fairport since November, 1968 as tenants and since September 25, 1970 as owners. They also have operated a wholesale and retail antique business on the premises. Respondent Kiefer holds the mortgage. Under a village zoning ordinance adopted on November 28, 1966 and a similar successor ordinance adopted on August 14, 1972, the area on which the Aptons' building was located was designated as an M--1 industrial district. These ordinances prohibited residential use of property within the district and the outdoor display of goods for sale along public streets within established setback boundaries. On corner lots, such as respondents', the setback lines were established at 30 feet for the front yard, 25 feet for the street side yard and 15 feet for the interior side yard.

The Village of Fairport commenced a special proceeding seeking a permanent injunction prohibiting respondents from violating the zoning ordinances. As part of its direct case the Village introduced into evidence a number of photographs showing respondents' yard cluttered with the type of merchandise generally sold at their North Main Street location. There was a wide variety of items pictured including furniture, benches, wooden barrels, wagon wheels, a used station wagon and a 16-foot high mock-up beer bottle. Respondents contended, however, that the photographs were taken shortly after a shipment of goods was received and that the items pictured either were to be brought into the store or were personal property, not offered for sale, and that the beer bottle was an advertising display. Respondents also argued that the Village discriminated against them in the enforcement of its ordinances and introduced evidence to show that other antique dealers on Main Street displayed merchandise in their yards.

No evidence was introduced by the Village that respondents resided upon the premises in violation of the zoning regulations since respondents admitted their residence. With regard to this point, respondents produced evidence that a majority of the land area in the M--1 zone was used for residential purposes. They also contended that the Village should have granted them a special permit to reside above their store and that its failure to do so was also discriminatory. Evidence was introduced to show that another merchant was granted a permit to construct an apartment above a marina. The trial court found that respondents were violating both prohibitions of the ordinance and a permanent injunction was issued.

Consequently, we have for consideration, first, whether the Village presented a prima facie case that respondents were displaying merchandise for sale in their yard in violation of zoning regulations; second, whether the Village enforced the setback ordinance in a discriminatory manner; third, whether the setback ordinance was constitutional and, fourth, whether the Village's prohibition of residential uses in an industrial zone was within permissible constitutional limitations.

Section 55--16(g) of the Zoning Ordinance of the Village of Fairport provides '(b)usiness structures or uses shall not display goods for sale purposes * * * in any location which would infringe upon the required yard areas specified in this ordinance.' The photographs introduced as evidence presented ample prima facie proof upon which the court could determine that respondents had displayed goods for sale in their yard. Respondents admitted that the merchancise pictured was of the type offered for sale at their premises and the station wagon depicted in one photograph had a 'For Sale' sign in its window.

With respect to respondents' contention that the ordinance was enforced discriminatorily, the evidence showed that other antique dealers on Main Street displayed goods in their yards and even on sidewalks; but it was clear that none did so in as pervasive a manner as did respondents. Whereas the other owners only displayed goods during the day on weekends, the respondents kept merchandise in their yard on a continuous basis. The record thus reveals that the respondents have failed to carry the heavy burden which the law places upon them to show that 'a pattern of discrimination has been consciously practiced' against them 'and that the law has been administered 'with an evil eye and an unequal hand. '' (People v. Goodman,31 N.Y.2d 262, 269, 338 N.Y.S.2d 97, 104, 290 N.E.2d 139, 144; see Yick Wo v. Hopkins, 118 U.S. 356, 373--374, 6 S.Ct. 1064, 1072--1073, 30 L.Ed.2d 220; People v. Friedman, 302 N.Y. 75, 81, 96 N.E.2d 184, 186; People v. Utica Daw's Drug Co., Inc., 16 A.D.2d 12, 225 N.Y.S.2d 128.)

On the subject of whether the setback provisions of the ordinance are constitutional, it must first be noted that zoning is a legislative enactment and is entitled to the strongest possible presumption of validity (Rodgers v. Village of Tarrytown, 302 N.Y. 115, 96 N.E.2d 731; Shepard v. Village of Skaneateles, 300 N.Y. 115, 89 N.E.2d 619). Further, if the validity of a zoning ordinance is fairly debatable, the judgment of the legislative body which enacted it must prevail (Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303, 310; Thomas v. Town of Bedford, 29 Misc.2d 861, 214 N.Y.S.2d 145, affd. 15 A.D.2d 573, 222 N.Y.S.2d 1021, affd. 11 N.Y.2d 428, 230 N.Y.S.2d 684, 184 N.E.2d 285). Of course, the zoning power may not be exercised unreasonably or arbitrarily (People v. Goodman, 31 N.Y.2d 262, 266, 338 N.Y.S.2d 97, 101, 290 N.E.2d 139, 141, Supra; Vernon Park Realty, Inc. v. City of Mount Vernon, 307 N.Y. 493, 498--499, 121 N.E.2d 517, 519--520; Cowan v. City of Buffalo, 247 App.Div. 591, 593, 288 N.Y.S. 239, 242).

The Village presented evidence which showed that the setba prohibitions were intended to prevent vandalism, fire and traffic hazards as well as to preserve the appearance of the community. These are areas that a municipality may properly regulate under its police power in order to promote the general health, welfare and safety of the community (Village Law, § 7--704; see People v. Goodman, 31 N.Y.2d 262, 265, 338 N.Y.S.2d 97, 100, 290 N.E.2d 139, Supra; Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749; People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272; Town of Islip v. F. E. Summers Coal and Lumber Co., Inc., 257 N.Y. 167, 177 N.E. 409; Matter of Wulfsohn v. Burden, 241 N.Y. 288, 297--298, 301, 150 N.E. 120, 122--123, 123). Respondents, however, contend that the setback provision which establishes yard areas is arbitrary since it includes uncovered porches as part of the yard but excludes covered porches from the definition of that term. Much of the merchandise located outside of respondents' premises was situated on an uncovered porch.

Testimony by Village officials was that the Village considers uncovered porches as more a part of a yard than a part of a building since these are generally nothing more than a concrete foundation that does not rise in height from the level of the ground. Covered porches, on the other hand, it regards as structures in themselves since they are attached to a building at a point well above ground level and actually serve to extend the sheltered perimeter of the structure beyond its original boundaries. The village zoning ordinance recognizes such a distinction by considering covered porches to be a part of a building for purposes of setback requirements while uncovered porches are not so considered (§ 55--4, Zoning Ordinance of the Village of Fairport,...