Northern Westchester Professional Park Associates v. Town of Bedford

• Citation: 458 N.E.2d 809,470 N.Y.S.2d 350,60 N.Y.2d 492
• Parties: , 458 N.E.2d 809 NORTHERN WESTCHESTER PROFESSIONAL PARK ASSOCIATES, Appellant, v. TOWN OF BEDFORD, Respondent.
• Decision Date: 20 December 1983
• Court: New York Court of Appeals Court of Appeals

Page 350

470 N.Y.S.2d 350

60 N.Y.2d 492, 458 N.E.2d 809

NORTHERN WESTCHESTER PROFESSIONAL PARK ASSOCIATES, Appellant, v. TOWN OF BEDFORD, Respondent.

Court of Appeals of New York.

Dec. 20, 1983.

Stuart R. Shamberg and Robert F. Davis, Mount Kisco, for appellant.

James F. Donohue, Town Atty., White Plains (Henry J. Smith and James G. Fine, White Plains, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

In an action to have a zoning ordinance declared unconstitutional as applied to plaintiff's property, the issue is not whether other zoning would be appropriate or whether the property is zoned for its highest and best use but whether the existing zoning classification deprives the owner of any use to which it is reasonably adapted. To be successful in such an action, the property owner must overcome the presumption of constitutionality of the ordinance by establishing beyond a reasonable doubt that he cannot obtain a reasonable return on the property under any of the uses, other than public or quasi-public uses, permitted by the ordinance. Because plaintiff's proof was insufficient, under that standard, to establish that the present zoning of plaintiff's property is confiscatory, the order of the Appellate Division 92 A.D.2d 267, 460 N.Y.S.2d 112 should be affirmed, with costs.

I

Plaintiff owns an irregularly shaped 12.6-acre parcel of land which bridges the line between the Town of Bedford and the Town/Village of Mount Kisco. The Mount Kisco portion is along part of the western edge of the tract, is .9 acres in size, is undeveloped and is zoned Research-Office (R-O). The 11.7 acres in the Town of Bedford fronts on Route 172 for 218.47 feet of its southerly perimeter and on McLain Street for 970.79 feet of its easterly perimeter. It is zoned two-acre residential (R-2A) and is improved by a large two-story residence and a smaller dwelling.

To the west and south of the Bedford portion lies another parcel, also owned by plaintiff, which fronts on Route 172, which is zoned Planned Business-Office (PB-O) and on which are situated two medical buildings and two office buildings. Opposite those buildings on the south side of Route 172 is land within Mount Kisco which is zoned for limited office use and on which there are two commercial office buildings. Opposite the plaintiff's property on the south side of Route 172, also in Mount Kisco, the land is zoned for multifamily residential use and a marsh preserve.

To the north of the plaintiff's property on the west side of McLain Street the land is zoned for, and has been developed as, two-acre residential use. Along the east side of McLain Street and running north from Route 172 is a 296-acre estate, zoned for two-acre and four-acre residential use on which is situated a large mansion presently occupied by a charitable foundation, under a five-year special use permit granted by the Town of Bedford in 1979, as a study center.

The property was acquired by plaintiff in 1978 for $265,000. In February, 1979, plaintiff petitioned the Town Board of the Town of Bedford to rezone the property as a new planned business-office park district, similar to the town's PB-O classification, but including as a permissible use a conference center and incidental service businesses, access to the property to be from Route 172 only. The Bedford Planning Board recommended rezoning as PB-O rather than plaintiff's proposed new park district, on condition that a buffer of not less than 100 feet be provided adjacent to adjoining residential property. After two public hearings held by the town board, at which, among other objectants, the Mount Kisco Planning Board and the Westchester County Planning Board objected that the traffic impact of rezoning would be greater than Route 172 could accommodate and that the proposed buffer zone was inadequate, the town board on November 28, 1979 denied the request for rezoning.

Plaintiff then commenced the instant action for a declaratory judgment and for damages, alleging that because of the development of abutting lands its property cannot be used for any purpose permitted by R-2A zoning and that, therefore, continuation of that zoning classification denied it due process of law and entitled it to damages for the denial of its constitutional and civil rights. After trial Supreme Court in an opinion which noted that development of plaintiff's property for office use would have no significant traffic effect on Route 172, that plaintiff had demonstrated significant economic injury, and that the town had failed to establish that R-2A zoning was required by public interest, declared the zoning unconstitutional. It held, however, that plaintiff was not entitled to damages. The judgment entered dismissed plaintiff's cause of action for damages but on the due process causes of action declared the zoning unconstitutional as applied to plaintiff's property.

The Appellate Division held that plaintiff had failed to sustain its burden of proof in a number of respects, that the Trial Judge had incorrectly applied the area variance standard of proof stated in Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272, and that his traffic finding was unsupported by the record. It, therefore, modified, on the law and the facts, struck from the judgment everything other than the denial of damages, added a provision declaring the zoning as applied to plaintiff's property not unconstitutional, and, as so modified, affirmed.

Plaintiff appeals as of right on both constitutional (CPLR 5601, subd. [b], par. 1) and modification (CPLR 5601, subd. [a], par. [iii] ) grounds. It argues that the Appellate Division, not the Trial Judge, applied the wrong standard of review, that it sufficiently demonstrated both the value of the property at time of purchase and the fact that the property cannot be used for any purpose permitted by the present classification, that the confiscatory nature of the present zoning and the town board's refusal to rezone entitle it not only to a declaration of unconstitutionality but also to damages, and that the Trial Judge erred in denying plaintiff an additional allowance under CPLR 8303. The last is not reviewable by our court (Abbott v. Page Airways, 23 N.Y.2d 502, 515, 297 N.Y.S.2d 713, 245 N.E.2d 388) and the damage issue need not be reached in view of our conclusion that the present zoning is constitutional. On the other questions, we agree essentially with the reasoning of the Appellate Division but write to emphasize that agreement and in the interest of clarifying the applicable rules.

II

Concerning standard of review, plaintiff argues first that on evidence which conflicts or from which conflicting inferences may be drawn, the Appellate Division cannot reverse unless the trial court's decision is so clearly erroneous that it can be said that it is not supported by the evidence. For more than 50 years, however, since the 1925 amendment to the Constitution (art. VI, § 5), the rule has been that the power of the Appellate Division is not so limited, that its authority is as broad as that of the trial court (Jacques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 471, 334 N.Y.S.2d 632, 285 N.E.2d 871; O'Connor v. Papertsian, 309 N.Y. 465, 471-472, 131 N.E.2d 883) and that as to a bench trial it may render the judgment it finds warranted by the facts, taking into account in a close case "the fact that the trial judge had the advantage of seeing the witnesses" (York Mtge. Corp. v. Clotar Constr. Corp., 254 N.Y. 128, 133-134, 172 N.E. 265; accord Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Bernardine v. City of New York, 294 N.Y. 361, 366-367, 62 N.E.2d 604; People ex rel. MacCracken v. Miller, 291 N.Y. 55, 62, 50 N.E.2d 542; see Miller v. Merrell, 53 N.Y.2d 881, 883, 440 N.Y.S.2d 620, 423 N.E.2d 43; Siegel, N.Y.Prac., § 529, pp. 731-732; Cohen and Karger, Powers of the New York Court of Appeals, § 112).

The second branch of the argument is that the trial court referred to Matter of Fulling v. Palumbo, 21 N.Y.2d 30, 286 N.Y.S.2d 249, 233 N.E.2d 272, supra only as to the sequence of going forth with the evidence in the case, not in contravention of the reasonable doubt standard and that, in any event, what the courts really do is balance the interests of the public against the interests of the property owner. The Trial Judge's decision refutes the argument for its conclusion that the zoning classification is confiscatory turned not on plaintiff's demonstration that it could not obtain a reasonable return on the property under the present zoning but on "the defendant's inability to demonstrate that the public health, safety and welfare of the community is threatened if existing zoning regulations fall".

Nor should our affirmance in Socha v. Smith, 26 N.Y.2d 1005, 311 N.Y.S.2d 306, 259 N.E.2d 738, or our decisions in Salamar Bldrs. Corp. v. Tuttle, 29 N.Y.2d 221, 325 N.Y.S.2d 933, 275 N.E.2d 585 or Stevens v. Town of Huntington, 20 N.Y.2d 352, 283 N.Y.S.2d 16, 229 N.E.2d 591 be read as revising the burden-of-proof rules applicable to a claim of confiscatory zoning or adopting a balancing test for such cases. A zoning ordinance may be an invalid exercise of the police power because not reasonably related to the public health, safety, morals or general welfare or because, even though reasonably related to a legitimate public purpose, it renders the property affected by it so unsuitable for any purpose for which it is reasonably adapted as effectively to destroy its economic value (French Investing Co. v. City of New York, 39 N.Y.2d 587, 596, 385 N.Y.S.2d 5, 350 N.E.2d 381). In the first situation diminution in value is of limited significance; in the second it is crucial. In either case, however, the burden is upon the property owner seeking to have an ordinance declared unconstitutional as applied to his property to overcome the presumption of constitutionality which...