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SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.43292 <>; 305 N.Y.S.2d 252; 61 Misc. 2d 131 October 29, 1969 HOPE N. GARDNER, PLAINTIFF,v.HALSEY S. DOWNER ET AL., CONSTITUTING THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF OLD WESTBURY, DEFENDANTS Wydler, Balin, Pares & Soloway (Herbert M. Balin of counsel), for plaintiff. Pratt, Caemmerer & Cleary (George C. Pratt of counsel), for defendants. Mario Pittoni, J. Author: Pittoni

Mario Pittoni, J.

Author: Pittoni

 This is another of a long line of cases involving the innumerable battles between municipalities in Nassau County trying to keep properties within their confines residential in nature and commercial interests attempting to change those areas into more profitable business zones.

Plaintiff owner again sues for a judgment declaring the building zone ordinance of the Village of Old Westbury unconstitutional as it applies to plaintiff's property. Her first action was tried in 1960. (Gardner v. Le Boeuf, 24 Misc. 2d 511.) She again claims that the ordinance unconstitutionally restricts her property to one-family, one-acre plots under the village's Residence "B" zone, when it should be zoned "Business." Plaintiff's property has been zoned Residence "B" since 1926.

Plaintiff's property consists of 14 1/4 acres of wooded land on the northeast corner of Jericho Turnpike and Glen Cove Road. It is surrounded by Glen Cove Road, a county road, on the west; Hillside Avenue, a State road, on the north; a recharge basin property on the east; and Jericho Turnpike, a State road, on the south.

Although Glen Cove Road is a wide four-lane road, it is undivided. However, both Hillside Avenue and Jericho Turnpike are not only very wide but the east and west traffic lanes are divided by wide islands or malls. Hillside Avenue has the added feature of being higher than the subject property at one end and lower than the property at the other end.

The other three corners of Glen Cove Road and Jericho Turnpike, that is, the northwest, southwest and southeast corners, are commercially zoned and commercially used. There are two gasoline stations, the Red Coach Grille and a Carvel ice cream stand in these areas.

Above Hillside Avenue, the rest of the village, except for a few small areas for the village's convenience, is zoned residential, some for one-acre plots, some for two-acre plots and the rest for larger plots.

The history of the litigation involving this property is pertinent. In 1957, plaintiff first petitioned the village for permission to use her property for a shopping center. The petition was turned down. Her subsequent court action for a judgment declaring the residential zoning "B" of her property as unconstitutional was rebuffed by the courts (Gardner v. Le Boeuf, 24 Misc. 2d 511, affd. 15 A.D.2d 815). Thereafter, another application to the village for a rezoning to commercial or business use in order to build a Bloomingdale's department store was also rejected. After that, she started the present proceeding by applying to the village for a rezoning. Although the village's Planning Board recommended approval of her application, the village's Board of Trustees, after receiving a recommendation of disapproval by the County of Nassau Planning Commission and after considering other factors, denied her application. Plaintiff's present action followed that denial.

Meanwhile, her property, which had approximately 19 acres, was partially condemned by the State and county for road widening, and she received $105,800 for approximately 4 1/2 acres of the subject property.

Plaintiff rests her case primarily on Stevens v. Town of Huntington (20 N.Y.2d 352, 355, 356) and Matter of Fulling v. Palumbo (21 N.Y.2d 30).

The pertinent language in the Stevens case (pp. 355-356) is as follows:

"The appellants are entitled to succeed only if they have shown that the zoning ordinance, as applied to their property, is clearly arbitrary and unreasonable (Summers v. City of Glen Cove, 17 N.Y.2d 307). If the classification is fairly debatable, it must be allowed to stand (Shepard v. Village of Skaneateles, 300 N. Y. 115). If, on the other hand, the ordinance goes so far as to preclude the use of the property for any purpose to which it is reasonably adapted, it is confiscatory and unconstitutional (Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493). "No doubt, every restriction on the unincumbered use of property may impose a burden, provoke hardship, or adversely affect value (Matter of Wulfsohn v. Burden, 241 N. Y. 288, 302). That is one of the prices of society. But the question in each case is ultimately one of reasonableness and that, in turn, depends on a total view of the relevant facts and circumstances."

The Stevens case did not adopt any new rule; it merely said that the disparity of value between the property when zoned residentially and when zoned for business was a factor among others which the court weighed in its ultimate determination in respect to constitutionality. Thus, the test of the validity of a zoning ordinance is still one of reasonableness and whether under the restrictions of the ordinance the property is reasonably adapted to any of the permitted uses.

Be that as it may, in the Stevens case the owner had a legitimate complaint. His property was being upzoned from commercial to residential when it was located in an ocean of surrounding commercial uses. In fact, the property was also adjacent to the large Walt Whitman Shopping Center, one of the ...

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