Salamar Builders Corp. v. Tuttle

• Decision Date: 21 October 1971
• Citation: 29 N.Y.2d 221,275 N.E.2d 585,325 N.Y.S.2d 933
• Parties: , 275 N.E.2d 585, 3 ERC 1267 SALAMAR BUILDERS CORP., Respondent, v. Edward S. TUTTLE et al., Individually and Constituting the Town Board of the Town of Southeast, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 933

325 N.Y.S.2d 933

29 N.Y.2d 221, 275 N.E.2d 585, 3 ERC 1267

SALAMAR BUILDERS CORP., Respondent, v. Edward S. TUTTLE et al., Individually and Constituting the Town Board of the Town of Southeast, et al., Appellants.

Court of Appeals of New York.

Oct. 21, 1971.

Charles H. Velardi, Brewster, for appellants.

Stuart R. Shamberg and John Arons, Mount Kisco, for respondent.

SCILEPPI, Judge.

In January, 1968, plaintiff, a real estate developer, took title to some 70 or more acres in the northeastern part of the Town of Southeast for a purchase price of $84,000. At that time, the zoning ordinance classified the district R-2, and sanctioned the construction of residences on plots containing 40,000 square feet of land, provided that each be 'of such a shape that a square with 150 feet on each side will fit on the lot and shall have a frontage of 150 feet or more on a street'. Pursuant to these requirements, plaintiff prepared a subdivision map dividing the property into 44 separate building lots, and applied to the Planning Board of the Town of Southeast for approval. The board rejected the initial application and the plaintiff, conforming the subdivision application to stated board requirements, renewed the application. The board deferred action upon the second application on the ground that the town board was presently considering an amendment of the zoning ordinance which would affect the area in which the plaintiff's land was situated. During the pendency of the application, the town adopted the proposed amendment which provided that each parcel be upzoned to an R-1 classification which would require that 'each lot shall have a minimum area of 60,000 square feet and shall have a frontage of 175 feet or more on a street, each lot shall be of such a shape that a square of 200 feet on each side will fit on the lot, and some portion of such square shall be within 50 feet of a street line'.

Subsequently, on May 13, 1968, the effective date of the new ordinance, the plaintiff moved that the preliminary application be reconsidered and approved on the basis of the former zoning regulation. Preliminary approval was denied for failure to conform to the minimum requirements of the amended ordinance. Plaintiff thereupon commissioned its licensed surveyor to prepare a second subdivision application conforming to the new requirements which reduced the number of available lots to 31. That application was never submitted; instead, plaintiff, alleging that the ordinance was confiscatory, and bore no reasonable relation to the public welfare, commenced this action seeking to declare the zoning ordinance unconstitutional.

In support of the alleged confiscation, plaintiff introduced expert testimony, including that of real estate brokers and a builder, that under one-acre zoning the cost of land would be approximately $8,700 per lot, while under the 1 1/2-acre zoning it would approximate some $12,354 per lot--an increase of some $3,650 per lot; that in order to render construction on a lot costing in excess of $12,000, economically feasible homes would run in excess of $48,000; that the average price of subdivision homes in the area was approximately $30,000, and, finally, that the highest selling price of such homes would be about $40,000, more than $8,000 less than was economically feasible. The town, producing no contrary proof, introduced expert testimony to the effect that the topography and soil conditions were such as to inhibit the installation of central sewer and water systems, so that any present residential development would necessarily be limited to the use of wells and septic tanks; and that, in turn, largely because of the area's topography, its location within or contiguous to the New York City watershed, and drainage difficulties, the area would best be zoned for residences on two-acre plots in order to provide ample space for drainage and thus minimize the danger of water pollution. Additional testimony was adduced which established that the rezoning was initiated as part of a well-co-ordinated and comprehensive land use scheme for the Town of Southeast generally, which was designed to reflect local land conditions and local development policies with respect to such factors as population growth, economic activity, the availability of transportation and communications facilities, as well as public utilities generally, profile and tax base.

On the basis of the evidence adduced, the trial court found that the ordinance had rendered plaintiff's property, under existing conditions, unmarketable; had inflicted 'significant economic injury' by increasing its per lot cost by $3,650; and, in the absence of any showing of countervailing considerations on the part of the municipality, was unconstitutional as applied to plaintiff's property. On appeal, the Appellate Division affirmed, without opinion, Justice Benjamin dissenting.

We have long recognized that '(w)ithout zoning restrictions, the self-interest of the individual property owners will almost inevitably dictate the form of the development (within a particular) district' (Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 228, 15 N.E.2d 587, 590); and we have defined the police power to include all reasonable restrictions upon the use of property in the hope of promoting urban and rural development according to plans calculated to advance the public welfare generally (Matter of Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120; Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 229, 15 N.E.2d 587, 590, Supra, see, also Hesse v. Rath, 249 N.Y. 436, 438, 164 N.E. 342; Stevens v. Town of Huntington, 20 N.Y.2d 352, 359, 283 N.Y.S.2d 16, 21, 229 N.E.2d 591, 595 (dissenting opn. Bergan, J.)). Nevertheless, though long-range planning for zoning purposes may be a valid exercise of the police power, that power, broad though it may be (Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 373, 184 N.Y.S.2d 640, 641, 157 N.E.2d 626, 627, cert. den. 360 U.S. 902, 79 S.Ct. 1286, 3 L.Ed.2d 1255), is not plenary and must, characteristically, reasonably relate to the promotion of the health, comfort, safety and general welfare of the community (Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 322 N.Y.S.2d 696, 271 N.E.2d 537; Nettleton Co. v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625, 264 N.E.2d 118; Contino v. Incorporated Vil. of Hempstead,27 N.Y.2d 701, 314 N.Y.S.2d 15, 262 N.E.2d 221, revg. 33 A.D.2d 1043, 309 N.Y.S.2d 130 on the dissenting opn. at the Appellate Division; Stevens v. Town of Huntington, 20 N.Y.2d 352, 283 N.Y.S.2d 16, 229 N.E.2d 591, Supra; Barrett v. State of New York, 220 N.Y. 423, 116 N.E. 99): "The ordinance * * * must find (its) justification in some aspect of the police power, asserted for the public welfare" (Dowsey v. Village of Kensington, 257 N.Y. 221, 228, 177 N.E. 427, 429; Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 498--499, 121 N.E.2d 517, 519--520; Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 228, 15 N.E.2d 587, 590, Supra). Undoubtedly, every restriction upon the unencumbered use of property, quite apart from its professed purposes, will have an adverse effect upon its market value. That hardship is inevitably the product of police regulation and the pecuniary rights of the individual, of necessity, must be subordinate to those of common weal. Yet, no matter how pressing a problem may be, private property may not be so interfered with as to amount to a taking without compensation, even for a public purpose or to advance the general welfare: 'and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted' (Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 499, 121 N.E.2d 517, 519, Supra; Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 230, 231, 15 N.E.2d 587, 591, Supra; Dowsey v. Village of Kensington, 257 N.Y. 221, 229--230, 177 N.E. 427, 430, Supra; see, also, Summers v. City of Glen Cove, 17 N.Y.2d 307, 309, 270 N.Y.S.2d 611, 612, 217 N.E.2d 663, 664). That the ordinance be 'reasonably related', therefore, requires not only that the regulation itself relate to the purpose to be effected, but that it does so in a manner so as not to deprive the individual property owner 'of all beneficial use of his property' (Matter of Eaton v. Sweeny, 257 N.Y. 176, 182--183, 177 N.E. 412, 414; see, also, Shepard v. Village of Skaneateles, 300 N.Y. 115, 89 N.E.2d 619), and also that it does so without imposing upon him a 'special hardship unnecessarily and unreasonably' (Dowsey v. Village of Kensington, 257 N.Y. 221, 226, 177 N.E. 427, 429, Supra).

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