Vernon Park Realty, Inc. v. City of Mount Vernon , 307 N.Y. 493 ( 1954 )

Dye, J.

The City of Mount Vernon appeals as of right on constitutional grounds from a judgment declaring invalid and void, insofar as they affect the plaintiff’s property, the City Zoning Ordinance and Zoning Map of the City of Mount Vernon, enacted and adopted March 22, 1927, as amended March 9, 1949, and the amendment thereto, chapter 4A, enacted and adopted January 16, 1952.

The subject premises are known locally as the “Plaza”, consisting of an open area containing approximately 86,000 square feet adjacent to the New York, New Haven & Hartford Railroad station. It is in the middle of a highly developed Business “ B ” district (Zoning Ordinance, 1927, ch. 12) and as such constitutes an island completely surrounded by business buildings. It has always been used by the patrons of the railroad and others for the parking of private automobiles. "When the city first enacted a zoning ordinance, the Plaza was placed in a Business “ B ” district (Zoning Ordinance adopted 1922), later being changed without objection to a Residence “ B ” district (Zoning Ordinance adopted 1927), following which the parking of automobiles was continued as a valid nonconforming use. In 1932, upon the application of the railroad and its then tenant, the city granted a variance to permit the installation of a gasoline filling station. Later and in 1951 the railroad sold the premises to the plaintiff, the title being closed June 21, 1951. The purchaser applied without success for a variance to permit the erection of a retail shopping eenler, a prohibited use as the zoning ordinance then read (Zoning Ordinance adopted 1927, ohs. 9-10).

The plaintiff then commenced this action for a judgment declaring the 1927 ordinance unconstitutional, unreasonable and void and not binding on the plaintiff insofar as the same pertains to the use of plaintiff’s premises, and for injunctive relief. After joinder of issue and on January 16, 1952, the common council amended the zoning ordinance by adding thereto a new district to be known as “ D. P. D.” (Designed Parking District). In substance, the effect of this amendment was to prohibit the use of the property for any purpose except the parking and storage of automobiles, a service station within the parking area and the continuance of prior nonconforming uses (Zoning Ordinance as amende^, January JR _ if)52$ ch. 4A). Faced with this change in classi^5a^qp,f|iie jyainu|f amended its complaint so as to include an attack on both tbe zoning* ordinance and the 1952 amendment. The amended complaint alleges that the ordinance and its 1952 amendment, as pertaining to the plaintiff’s property, work an undue hardship as to use, destroy the greater part of its value, are discriminatory as a denial of the equal protection of the law, and amount to a taking of private property without just compensation contrary to due process and, as such, are constitutionally invalid and void. The city justifies the ordinance and its amendment by reason of the congested traffic and parking conditions now existing in Mount Vernon which, itpSays, have become so acute as to reach a .strangulation point. \ However compelling and acute the community traffic problem may be, its solution does not lie in placing an undue and uncompensated burden on the individual owner of a single parcel of land in the guise of regulation, even for a public purpose.^ True it is that for a long time the land has been devoted to parking, a nonconforming use, but it does not follow that an ordinance prohibiting any other use is a reasonable exercise of the police power. "While the common council has the unquestioned right to enact zoning laws respecting the use of property in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare (General City Law, § 83), such power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably (Nashville, C. & St. L. Ry. v. Walters, 294 U. S. 405; Matter of Brous v. Smith, 304 N. Y. 164) and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222). By the same token, an ordinance valid when adopted will nevertheless be stricken down as invalid when, at a later time, its operation under changed conditions proves confiscatory (Abie State Bank v. Bryan, 282 U. S. 765) such, for instance, as when the greater part of its value is destroyed (Dowsey v. Village of Kensington, 257 N. Y. 221), for which the courts will afford relief in an appropriate case (Matter of Eaton v. Sweeny, 257 N. Y. 176).

On this record, the plaintiff, having asserted an invasion of his property rights (cf. Rodgers v. Village of Tarrytown, 302 N. Y. 115), has met the burden of proof by establishing that the property is so situated that it has no possibilities for residential use and that the use added by the 1952 amendment does not improve the situation but, in fact, will operate to destroy the greater part of the value of the property since, in authorizing its use for parking and incidental services, it necessarily permanently precludes the use for which it is most readily adapted, i.e., a business use such as permitted and actually carried on by the owners of all the surrounding* property. Under such circumstances, the 1927 zoning ordinance and zoning map and the 1952 amendment, as they pertain to the plaintiff’s property, are so unreasonable and arbitrary as to constitute an invasion of property rights, contrary to constitutional due process and, as such, are invalid, illegal and void enactments (U. S. Const., 5th and 14th Amendts; N. Y. Const., art. I, §§ 6, 7; Rockdale Constr. Corp. v. Incorporated Vil. of Cedarhurst, 301 N. Y. 519; Arverne Bay Constr. Co. v. Thatcher, supra; Dowsey v. Village of Kensington, supra; Matter of Eaton v. Sweeny, supra; Euclid v. Ambler Co., 272 U. S. 365; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167).

Mention should be made of appellant’s contention that plaintiff has no right to bring this action because it has not shown good faith in that the contract of purchase provided for a reconveyance of the premises to the seller, at the option of the purchaser, in the event that, within one year from the date of closing title, the purchaser was unable to obtain from the city or through court action a change of zoning so as to permit use of the premises for a business purpose, and, in that it purchased the property with knowledge of the zoning restrictions. There is no merit to this claim of lack of good faith. The plaintiff took title to the property by deed prior to the enactment of the 1952 amendment and could not very well have known or anticipated that the city, under the guise of regulating traffic, would permanently limit the use of the property to the parking of automobiles and incidental services, such as we have said constituted an illegal invasion of the plaintiff’s property rights. Under such circumstances, the validity of the zoning ordinance and its zoning map may be attacked at any time and at any stage of the proceedings. The right to challenge the validity of an ordinance by action for a declaratory judgment is not to be confused with a proceeding under article 78 of the Civil Practice Act to review a discretionary determination of a zoning board, as in Matter of Hickox v. Griffin (298 N. Y. 365). There, the evidence was deemed insufficient to warrant granting a variance of the zoning ordinance under applicable principles of law (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Ernst v. Board of Appeals on Zoning of City of New Rochelle, 298 N. Y. 831). Nor should this right of action be confused with the question of who may bring an article 78 proceeding as a “ person aggrieved ” (Matter of Hickox v. Griffin, supra; Matter of Taxpayers’ Assn. v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 215). Our recent case (Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86) is not authority to the contrary. There, too, the issue was a reasonable exercise of administrative discretion. The ordinance as a valid enactment was not challenged.

Purchase of property with knowledge of the restriction does not bar the purchaser from testing the validity of the zoning ordinance since the zoning ordinance in the very nature of things has reference to land rather than to owner (Bassett on Zoning, p. 177). Knowledge of the owner cannot validate an otherwise invalid ordinance. The owner’s right to attack the validity of a zoning ordinance is not waived by the circumstance that he has on a previous occasion applied for a variance. Such an application is, primarily, an appeal to the discretion of the board and, for that purpose, the validity of the ordinance is assumed but that does not operate to confer validity if, in fact, as here, the zoning ordinance is clearly confiscatory (cf. Arverne Bay Constr. Co. v. Thatcher, supra). Conversely, an attack on the legality of a zoning ordinance prior to any request for a variance has long been accepted as proper procedure (Dowsey v. Village of Kensington, supra).

In view of all that has been said, we find it unnecessary to mention the appellant’s other points beyond saying that we regard them as wholly lacking in merit.

The judgment appealed from should be affirmed, with costs.