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TOWN HEMPSTEAD v. HERBERT W. GOLDBLATT ET AL. (01/19/61)

COURT OF APPEALS OF NEW YORK 1961.NY.40620 <http://www.versuslaw.com>; 172 N.E.2d 562; 9 N.Y.2d 101 decided: January 19, 1961. TOWN OF HEMPSTEAD, RESPONDENT,v.HERBERT W. GOLDBLATT ET AL., APPELLANTS Town of Hempstead v. Goldblatt, 9 A.D.2d 941, affirmed. Counsel Milton I. Newman, Emil N. Baar and Edward M. Miller, for appellants. William C. Mattison, Richard P. Charles and Mario Matthew Cuomo, for respondent. Chief Judge Desmond and Judges Dye and Fuld concur with Judge Burke; Judge Van Voorhis dissents in an opinion in which Judges Froessel and Foster concur. Author: Burke


Town of Hempstead v. Goldblatt, 9 A.D.2d 941, affirmed.

Chief Judge Desmond and Judges Dye and Fuld concur with Judge Burke; Judge Van Voorhis dissents in an opinion in which Judges Froessel and Foster concur.

Author: Burke

 The question raised is whether an ordinance of the Town of Hempstead regulating the defendants' business is confiscatory and in violation of the due process clause of both the Federal and State Constitutions.

The defendants seek to revise a judgment of the Appellate Division unanimously affirming a judgment of Special Term upholding the constitutionality of the ordinance and enjoining the defendants from conducting sand mining and excavation on certain property in the Town of Hempstead until a permit has been issued and certain violations of the ordinance have been corrected. They contend that the ordinance cannot be sustained as a valid exercise of police powers and that it violates defendants' vested rights in an established nonconforming use.

Since the courts below have unanimously found that the defendants' proof failed to overcome the presumption of constitutionality and to establish the unreasonableness of the regulations, we may not hold that the ordinance which is an exercise of the town's statutorily delegated police power is invalid, unless there is no justification on "any state of the facts". (United States v. Carolene Prods. Co., 304 U.S. 144, 154.)

The sand and gravel pit in question lies in the midst of a densely populated residential area. Included within a radius of 3,500 feet are more than 2,200 homes and 4 schools with an enrollment of 4,500 children. The pit itself occupies a 38-acre tract of which approximately 20 acres is beneath an artificial lake with an average depth of 25 feet. In order to provide protection against the danger of cave-ins, falls, drownings and water pollution, the ordinance makes provision for setbacks, degrees of slope, barricades, fences, lights, retaining walls and maximum ground water level. Neither the injunction granted nor the ordinance proscribes any future excavation. The injunction merely conditions future operation upon the issuance of a permit from the Town of Hempstead, and the correction of certain violations of the ordinance. There are approximately 18 acres which are available for excavation. The hazards to both life and property accompanying the uncontrolled operation of these pits are common knowledge, and their restraint need not await an event. The minimal safety standards currently required by the Town of Hempstead have not been demonstrated under the circumstances here to be an unreasonable means to accomplish this end. Upon this record a threat to the community's welfare may at least be said to be "reasonably apprehended". (Wiggins v. Town of Somers, 4 N.Y.2d 215, 219.) "It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining [case cited]. To so hold would preclude development and fix a city forever in its primitive conditions. There must be progress, and if in its march private interests are in the way they must yield to the good of the community." (Hadacheck v. Los Angeles, 239 U.S. 394, 410.) It is not the function of the courts but of legislators to determine the "reasonableness, wisdom and propriety" of the regulations needed to protect the community (South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177, 191), and their regulatory power, as the United States Supreme Court has pointed out, governs pre-existing uses (Queenside Hills Co. v. Saxl, 328 U.S. 80; Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, cert. denied, 360 U.S. 902). Recognizing, therefore, that this court may not question the need for the legislation (Olsen v. Nebraska, 313 U.S. 236, 246) where there is found, as here, a rational basis for the legislative choice and no factual support for declaring it arbitrary (Lincoln Bldg. Associates v. Barr, 1 N.Y.2d 413, 418-420), we do not believe that this ordinance can be declared as a matter of law to go beyond regulation to a degree which would impair its validity.

The judgment appealed from, therefore, should be affirmed, with costs.

Disposition

Judgment affirmed.

Van Voorhis, J. (dissenting). Defendants appeal as of right from a judgment upholding the constitutionality of Ordinance No. 16 of the Town of Hempstead, and enjoining the defendants from operating a sand and gravel pit until a permit has been issued by the Town of Hempstead, and certain violations of the said ordinance have been corrected. The defendant, Goldblatt, is the owner of 38 acres of land located in the Town of Hempstead, which is the property involved in this litigation. The other defendant, Builders Sand and Gravel Corp., is the operator of the business of excavating and selling the sand and gravel taken from the land. The property was purchased by Mr. Goldblatt's father in 1927 and the excavation and sale of sand and gravel has been carried on since 1927. Within a year after operations began, the excavation had gone below water level and an artificial lake was created, averaging now approximately 25 feet in depth.

The entire premises of defendant Goldblatt are surrounded by 7,000 lineal feet of a 6-foot chain-link fence, topped by 3 strands of barbed wire. The fence was built and the gravel pit was operated in accordance with a 1945 ordinance and is admittedly in conformity therewith.

When the 38 acres of land owned by defendant Goldblatt were purchased and dredging operations began in 1927, the surrounding property was mainly farm land. The first provision for residential zoning of property was enacted in January, 1930. Thereafter and during the time defendants continued their dredging operations, the surrounding area became heavily populated. Thus, defendants did not bring their business into a residential area; defendants' neighbors voluntarily came into this area where defendants' operations and the artificially created lake were evident and obvious.

In 1956 the plaintiff town brought to trial its first legal proceeding to terminate the defendants' dredging operations. That was a suit in Supreme Court, Nassau County, to restrain defendants from operating on the theory that defendants' dredging operations constituted a violation of the Zoning Ordinance of the Town of Hempstead.

It was held that defendants had a legal right, consisting of a prior nonconforming use, to continue their excavation and operations under water on their "entire premises * * * notwithstanding any Ordinances of the plaintiff". The opinion of Justice Hill states: "I find that the defendants are now and have been since 1927 conducting a prior nonconforming use on the premises, and that they have made such a substantial investment in improvements in the business to warrant a continuance of this nonconforming use, see People v. Miller, 304 ...


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