Town of Islip v. F.E. Summers Coal & Lumber Co.

• Citation: 177 N.E. 409,257 N.Y. 167
• Court: New York Court of Appeals
• Decision Date: 15 July 1931
• Parties: TOWN OF ISLIP v. F. E. SUMMERS COAL & LUMBER CO., Inc. F. E. SUMMERS COAL & LUMBER CO., Inc., v. HAFF, Town Clerk.

257 N.Y. 167

177 N.E. 409

TOWN OF ISLIP

v.F. E. SUMMERS COAL & LUMBER CO., Inc.

F. E. SUMMERS COAL & LUMBER CO., Inc.,

v.HAFF, Town Clerk.

Court of Appeals of New York.

July 15, 1931.

Action by the Town of Islip against the F. E. Summers Coal & Lumber Company, Inc., impleaded with other defendants, to restrain defendant named from proceeding with the erection of its building, and proceedings by the F. E. Summers Coal & Lumber Company, Inc., for peremptory writ of mandamus against Warren C. Haff, as Town Clerk of the Town of Islip, for permit to erect such building. Cases were consolidated and tried together, and the Special Term gave judgment for the Town. The Appellate Division reversed the judgment on the law and facts, dissolved the injunction, and granted a peremptory order of mandamus (232 App. Div. 701, 247 N. Y. S. 986), and the Town appeals.

Appeal from Supreme Court, Appellate Division, Second department.

Judgment of Appellate Division reversed, and that of trial court affirmed.

Robert H. Koehler, of New York City, for appellant.

Guy O. Walser, of Sayville, for respondent.

POUND, J.

The question is whether the zoning ordinance of the town of Islip is unconstitutional in so far as it requires a setback of ten feet from the street on that part of Montauk avenue which is zoned for business purposes. The court below has held that such ordinance is detrimental and prejudicial to the use of the premises for building purposes, and unconstitutional as a taking of private property for public purposes without just compensation.

Can it be said that the ordinance in this respect on its face ‘passes the bounds of reason and assumes the character of a merely arbitrary fiat?’ Village of Euclid, Ohio, v. Ambler Realty Co., 272 U. S. 365, 389, 47 S. Ct. 114, 119, 71 L. Ed. 303, 54 A. L. R. 1016. ‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.’ Village of Euclid, Ohio, v. Ambler Realty Co., supra, page 388 of 272 U. S., 47 S. Ct. 114, 118;Wulfsohn v. Burden, 241 N. Y. 288, 296, 150 N. E. 120, 43 A. L. R. 651.

In the light of these rulings, how can a court say upon mere inspection of the zoning ordinance that the end in view is not reasonably pursued by its adoption in order to lessen congestion in the streets and thereby to promote the public safety? Town Law, Consol. Laws, c. 62, § 349- o.

In the monograph entitled ‘Buildings: Their Uses and Spaces about Them,’ in ‘Regional Survey of New York and its Environs' (vol. VI, at page 135) we find the suggestion that: ‘One of the most simple and necessary preventives of overbuilding of business blocks is to require that when blocks occupied by dwellings are converted into business or apartments, the original setback of the residences, up to 25 feet at least, should be retained. The space that the private residence has for purposes of amenity is usually no more than business or apartment buildings occupying the same block need for purposes of access,’ and at page 136 appears the following: ‘When we come to consider the need of adequate space about stores for purposes of access and parking of vehicles we will find that what are wanted are wider streets and deeper lots rather than increased frontage. But the really important questions are...