Morrison v. Pettigrew

• Decision Date: 02 September 1926
• Parties: MORRISON et al. v. PETTIGREW et al.
• Court: U.S. District Court — Eastern District of New York

14 F.2d 453 (1926)

MORRISON et al. v. PETTIGREW et al.

District Court, E. D. New York.

September 2, 1926.

Oscar B. Bergstrom, of New York City (E. A. Brown, of New York City, of counsel), for plaintiffs.

Van Doren, Conklin & McNevin, of New York City, for defendants.

INCH, District Judge.

This is a motion by plaintiff to strike out the defendant's answer, in an equity suit, commenced by plaintiff against defendants, having for its object the restraining of the defendants (who are the board of trustees and the clerk of the village of the Great Neck Estates) from interfering with the construction by plaintiff of a number of buildings, proposed to be constructed by her, in said village, and that the clerk of said village be enjoined from enforcing a certain zoning ordinance of said village, which affects the construction and occupancy of said buildings.

The bill of complaint was filed in the clerk's office of this court May 27, 1926. The defendants filed their verified answer on June 16, 1926. The answer contains denials and certain defenses. It appears, from the papers submitted, that in 1923 the Legislature of the state of New York duly passed a law by which, among other things, a grant of power was given to villages in the state of New York, such as the village of Great Neck Estates. This grant of power was substantially as follows:

"Sec. 175. Grant of Power. For the purpose of promoting the health, safety, morals, or the general welfare of the community, the board of trustees of a village is hereby empowered, by ordinance, to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes. Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained.

"Sec. 176. Districts. For any or all of said purposes the board of trustees may divide the village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district but the regulations in one district may differ from those in other districts.

"Sec. 177. Purposes in View. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."

Article VI-A of the Village Law (Consol. Laws, c. 64), entitled "Building Zones," as added by chapter 564 of the Laws of 1923, McKinney's Village Law, vol. 63, Supplement 1925, page 29.

The real purpose of this suit, and the sole basis of jurisdiction claimed to be in this court, is the claim that this ordinance of the board of trustees of said village, passed pursuant to their understanding of this granted power by the state of New York, as well as the statute, offends the Constitution of the United States, in that either the ordinance represents a misconception of this granted power, and is thus ultra vires, or, if such ordinance is within said grant of power, the said statute then so offends.

There is no diversity of citizenship. While the real estate is within the Eastern district, it is also within the state of New York, and governed by its laws, and the said state of New York has apparently provided ample statutory procedure to prevent injustice caused by arbitrary and unlawful ordinances (see Village Law, supra), including the opportunity to apply to a state court, and, of course, the door is open to apply from such state court to the Supreme Court of the United States, should a proper case be found by the latter court requiring such step.

At the outset, therefore, it appears that the plaintiff does not desire to test this village ordinance and state statute in the state courts, and, in case she is aggrieved, then apply to said federal court, but prefers, in the first instance, to commence her suit in a federal court. The excellent and thoughtful argument made by the counsel for plaintiff, as well as the equally able argument made by counsel for defendant, present a number of points which, in view of my decision, it is unnecessary to go into at this time. They may or may not arise at the trial.

I agree with counsel for the plaintiff that, where such a suit is brought, this court has jurisdiction, not only to decide the question of jurisdiction (Flanders v. Coleman, 250 U. S. 223, 39 S. Ct. 472, 63 L. Ed. 948), but also this motion (New Orleans M. & T. R. Co. v. Mississippi, 102 U. S. 135, 26 L. Ed. 96). However, it should not be overlooked that this is a motion to "strike out," and is not a trial of the issues.

The complaint would seem to set up allegations based on important facts, which, with the inferences therefrom, may become very material to a proper decision of the issues. The answer, by denials, etc., makes it equally important that these facts be decided at a trial. The plaintiff contends, however, that this answer is insufficient, to such an extent, as a matter of law, that it should be stricken out.

The undisputed facts are that in the months of April and June, 1925, plaintiff purchased some real estate in the village of Great Neck Estates suitable for residential purpose. One plot is said to have 22,000 square feet; the other plot 5,500 square feet. About a year later, to wit, March, 1926, the board of trustees and the clerk of the said village (the defendants, who appear to be named individually, but no point is made of that by defendants) passed a "zoning" ordinance, which plaintiff claims not only restricts or regulates the use to be made by her of this property, but constitutes a "taking" without due process of law.

The use of the words "square feet" would impress one, at first, in a large sense. If one realizes, however, that this may be a plot 220 feet front, along a street, with a depth of 100 feet, the size of the plot does not remain so impressive, especially in a village, and adjoining a golf links. The same reasoning applies to the smaller plot of 5,000 feet. I do not mean by this to even remotely intimate that the size of a plot has anything to do with the rights of its owner to object to an unlawful taking, by the village, of even a foot of her ground; but I do mean to indicate that very possibly the actual use by plaintiff, and the regulation thereof by the village, of such a sized plot, may on a trial be shown to be, not only an ordinary, but exceedingly sensible, one. Whether or not this is so would seem to be something that should be left to the trial.

The fact is, and I mention it, not because such may be found to be the case here, but simply as a matter of which this court can take judicial notice in this Eastern district, in which the said village is, that the growth of this great city and the activity of those interested in real estate development has brought about a situation, in all towns and villages reasonably near the city proper, whereby a condition has arisen, and...