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August 10, 1967

Eleanor LERNER, Plaintiff,
TOWN OF ISLIP, Defendant

The opinion of the court was delivered by: WEINSTEIN


 WEINSTEIN, District Judge.

 Plaintiff, owner of some 62 acres in the Town of Islip, seeks a judgment declaring that the applicable Town zoning ordinances violate her rights under the Fifth and Fourteenth Amendments to the United States Constitution. See 28 U.S.C. § 2201. She contends that reclassification of her property in December, 1962 as Residential AAA - requiring a minimum lot size of 40,000 square feet - effectively prevents its being utilized and amounts to an unconstitutional taking.

 Defendant has moved to dismiss on the grounds that this Court: (1) would perform a legislative act in granting a remedy, and (2) should abstain and leave the plaintiff to seek her remedy in a state court. Neither contention is valid.


 Paragraph 3 of plaintiff's prayer for relief can be read as a request that the Court declare the property reasonably adapted for use as a Business District - in effect, that it rezone. Courts will refuse to do more than declare a zoning ordinance constitutionally invalid as applied, leaving rezoning to local authorities. See, e.g., Chusud Realty Corp. v. Village of Kensington, 40 Misc.2d 259, 265, 243 N.Y.S.2d 149, 155 (Sup.Ct.1963), aff'd, 22 A.D.2d 895, 255 N.Y.S.2d 411 (2d Dep't 1964). But cf. Masten v. State, 11 A.D.2d 370, 206 N.Y.S.2d 672 (3d Dep't 1960), aff'd, 9 N.Y.2d 796, 215 N.Y.S.2d 508, 175 N.E.2d 166 (1961), (reasonable probability of imminent zoning change supported increased condemnation award on basis of reasonable new zone). The essence of the remedy sought - a declaration that a zoning ordinance is invalid as applied - is included within the standard judicial pharmacopoeia. Excessive demands for relief do not warrant dismissal of the entire case.


 A. Local Interest in Zoning.

 Defendant's second argument - that zoning is so peculiarly a matter of local concern that a federal court should abstain from exercising its jurisdiction - has allure. The state has divided the responsibility for zoning among its smaller governmental units - its towns, cities and villages. N.Y. Town Law, McKinney's Consol.Laws, c. 62, Art. 16; N.Y. Village Law, McKinney's Consol.Laws, c. 64, Art. VI-A. Cf. N.Y. Statute of Local Governments, McKinney's Consol.Laws, c. 58-A, Art. 2, § 10(6). So clear is this pattern that the very lack of areawide planning in the face of the haphazard spread of a huge northeast United States megalopolis has been sharply criticized by students of this subject. See, e.g., New York State Office for Regional Development, Change, Challenge, Response, A Development Policy for New York State, p. 76 (1964) ("planning which starts at the city center and ends at the metropolitan boundary is obviously too limited to deal with the statewide growth of tomorrow. * * * The result has been a criss-cross of lines of authority and responsibility"); Regional Plan Association, The Region's Growth, p. 24 (1967) ("There never has been a national policy for the allocation of population and employment among various parts of this country * * *"); Abrams, The City is the Frontier, pp. 215-220 (1965) (federal programs should be recast to meet "not only the needs of cities but also of the regions as a whole"); Babcock, The Zoning Game, p. 174 (1966) ("the federal government senses that coordination in planning * * * should be a prerequisite to federal aid").

 In view of the prevailing structure of local land control, it seems reasonable to urge that questions relating to zoning be restricted to state courts, to be handled initially by judges whose locus of jurisdiction is normally smaller than that of federal judges. Such a policy would accord with that governing administrative review in New York zoning cases; review is by Boards of Appeals made up of local representative citizens "[who] may act upon [their] own knowledge of conditions and * * * [their] own personal inspection ". Community Synagogue v. Bates, 1 N.Y.2d 445, 454, 154 N.Y.S.2d 15, 22, 136 N.E.2d 488, 493 (1956).

 Recognition of this pattern of land regulation has apparently influenced some federal courts to abstain from deciding zoning cases. See Overhill Corp. v. City of Grand Junction, 186 F. Supp. 69 (Colo.D.C.1960) (abstention proper to allow state courts to determine state issues and thus possibly avoid decision of federal constitutional question); McLarty v. Borough of Ramsey, 270 F.2d 232, 234-235 (3d Cir. 1959) (dictum on propriety of abstaining in zoning cases). Nevertheless, most federal courts decide zoning disputes - relatively few though they be compared to those in state courts - without referring to the abstention doctrine. See, e.g., Valley View Village v. Proffett, 221 F.2d 412 (6th Cir. 1955); Robertson v. City of Salem, 191 F. Supp. 604 (D.Ore.1961). Cf. Morrison v. Pettigrew, 14 F.2d 453, 456 (E.D.N.Y.1926) (duty of state courts "to construe their own statutes is rarely interfered with by federal courts", but zoning challenge held for trial on facts).

 A federal court may not surrender its jurisdiction once it is properly invoked "[in] the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise". Meredith v. City of Winter Haven, 320 U.S. 228, 234, 64 S. Ct. 7, 11, 88 L. Ed. 9 (1943). Unless this case falls within some recognized exception, therefore, the federal court must retain jurisdiction to determine whether "the action of the zoning authorities comes within the ban of the Fourteenth Amendment". Nectow v. City of Cambridge, 277 U.S. 183, 189, 48 S. Ct. 447, 448, 72 L. Ed. 842 (1928).

 B. Doctrine of Abstention not Applicable.

 Commencing with Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), the United States Supreme Court began developing a theory of abstention to justify the non-exercise of federal jurisdiction in a number of situations. The doctrine's limits have not been precisely marked, and recent cases suggest that it is losing its charm. See, e.g., Note, Federal-Question Abstention: Justice Frankfurter's Doctrine in an Activist Era, 80 Harv.L.Rev. 604 (1967). In any event, it is clear that the factors which have been invoked to justify withholding federal relief, on the most generous interpretation of the abstention doctrine, are not present in the instant case. See generally Mishkin, Supplementary Materials on the Federal Courts, ch. 13 (1966); Wright, Federal Courts, 169-77 (1963); IA Moore, Federal Practice paras. 0.202, 0.203; American Law Institute, Study of the ...

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