
    In the Matter of Sam Slavin et al., Respondents, v Hollis S. Ingraham, as Commissioner of Health of the State of New York, et al., Appellants.
    Argued September 9, 1975;
    decided October 28, 1975
    
      
      Louis J. Lefkowitz, Attorney-General (Francis J. Keehan, Ruth Kessler Toch and Stanley Fishman of counsel), for appellants.
    I. Uncontroverted testimony that the owners of a farm sold 26 lots therefrom, along existing highways or rights-of-way, without Health Department approval of a subdivision plan, and that seasonal residences were erected and water supply and sewage disposal facilities installed on 14 of the lots, constitutes substantial evidence to support the commissioner’s determination that the farm owners violated section 1116 of the Public Health Law by dividing a tract of land into five or more parcels along an existing street, highway or right-of-way for sale as residential lots or residential building plots. (Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65; People v Valerius, 31 NY2d 51; Noce v Kaufman, 2 NY2d 347; Travelers Ins. Co. v Pomerantz, 246 NY 63; Bradley v O’Hare, 2 AD2d 439; Labor Bd. v 
      
      Nevada Cooper Co., 316 US 105; Labor Bd. v Greyhound Lines, 303 US 261; Matter of Holland v Edwards, 307 NY 38; Matter of Gordon v New York Life Ins. Co., 300 NY 652; Matter of Club 95 v New York State Liq. Auth., 23 NY2d 784.) II. The court below erred in holding that the subdivision of land into lots used for residences does not constitute evidence that a parcel was divided for sale as residential lots or building plots, in violation of section 1116 of the Public Health Law in the absence of evidence establishing that (a) the subdivider represented himself as a subdivider of land for residential purposes, and (b) the lands are zoned residential or the deeds restrict the use of the lots to residential purposes. (Bright Homes v Wright, 8 NY2d 157; Kordel v United States, 335 US 345; Rosehen v Ward, 279 US 337; Hornbeck v Towner, 25 Misc 2d 956, 14 AD2d 646; Brown Paint Co. v Reinhardt, 210 NY 162; Marion v Coon Constr. Co., 157 App Div 95, 216 NY 178; State of New York v Garlick Parkside Mem. Chapels, 30 AD2d 143, 23 NY2d 754.)
    
      Benjamin M. Goldstein for respondents.
    I. Under the circumstances herein, the order of transferral was inappropriate, Special Term should have treated this proceeding as an action for declaratory judgment, and should have accorded it a plenary trial upon the central issue of the constitutionality of Public Health Law (§ 1115 et seq.) and of the regulations promulgated thereunder. (Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400; Matter of Concord Realty Co. v City of New York, 30 NY2d 308; Matter of King Road Materials v Town Bd. of Town of Rotterdam, 37 AD2d 357, 32 NY2d 890; Matter of Parochial Bus System v Parker, 40 AD2d 1062; Matter of Pilgrim Packing Co. v Wickham, 35 AD2d 637; Matter of 700 Cent. Park Ave. Corp. v Russo, 35 AD2d 574.) II. Public Health Law (§1115 et seq.) is patently unconstitutional and even if deemed constitutionally valid, these statutes were given an unconstitutional application by appellants. (Junar Constr. Co. v Town Bd. of Town of Hempstead, 57 Misc 2d 727; Metropolitan Life Ins. Co. v Durkin, 301 NY 376; Herrick v Ingraham, 74 Misc 2d 234.) III. Under section 12-a (subd 2) of the Public Health Law, appellants’ determination was improper as there is no legal evidence to sustain it as required under such statute. (Matter of Stork Rest, v Boland, 282 NY 256.) IV. The courts should strictly construe statutes which are penal in nature or in derogation of the common law. (Gay v Seibold, 97 NY 472; 
      People v Ryan, 274 NY 149; Imperato v Wasboe, 47 Misc 150; Department of Health of City of N.Y. v Owen, 42 Misc 221, 94 App Div 425; Town of Ithaca v Lucente, 36 AD2d 560; Matter of 440 East 102nd St. Corp. v Murdock, 285 NY 298; Triborough Bridge & Tunnel Auth. v Crystal & Son, 2 AD2d 37, 2 NY2d 961; City of Albany v Anthony, 262 App Div 401; Matter of Sibarco Stas, v Town Bd. of Vestal, 29 AD2d 907; People ex rel. Ortenberg v Bales, 224 App Div 87.) V. The courts in construing statutes avoid constructions which cause hardship or injustice, unequal operation of the statute, mischievous or disasterous results or unconstitutionality. (Kauffman & Sons Saddlery Co. v Miller, 298 NY 38; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677.) VI. The language of the statutes (§ 1115 et seq.) is so vague and indefinite that it violates the requirements of due process as the department here attempts to apply it. (Trio Distr. Corp. v City of Albany, 2 NY2d 690.) VII. Statutes which deny petitioners their constitutional right of equal protection under the law as the department has applied section 1115 (et seq.) are unconstitutional. (Aerated Prods. Co. of Buffalo v Godfrey, 263 App Div 685; Cowan v City of Buffalo, 247 App Div 591; Matter of Barry Equity Corp. [Marcia Hat Co.], 276 App Div 685.) VIII. These statutes are confiscatory; they deprive petitioners of their property without due process of law; and, in effect, they constitute a taking of property without just compensation as the Health Department here attempts to apply them. (People v Hawkins, 157 NY 1; Pennsylvania Coal Co. v Mahon, 260 US 393; Westwood Forest Estates v Village of South Nyack, 23 NY2d 424; Mardine Realty Co. v Village of Dobbs Ferry, 1 NY2d 902; Matter of Fuller v Palumbo, 21 NY2d 30; Junar Constr. Co. v Town Bd. of Town of Hempstead, 57 Misc 2d 727; Matter of Mariash v Papen, 26 NY2d 1000; Blye v GlobeWernicke Realty Co., 33 NY2d 15; Arverne Bay Constr. Co. v Thatcher, 278 NY 222.) IX. The determination of the court below in annulling the commissioner’s determination was proper. (Hornbeck v Towner, 25 Misc 2d 956, 14 AD2d 646.)
   Cooke, J.

Petitioners, children of Ida Slavin, acquired title by inheritance in 1962 to three tracts of land, totaling 462Vi acres in size and located in an area of the Town of Halcott, Greene County, described as "mostly mountain.” Between then and a time in 1970, they deeded therefrom to various individuals a number of parcels and, in 1971, the State Department of Health instituted an administrative proceeding based on its contention that the conveyances were in violation of section 1116 of the Public Health Law. The gravamen of the charge, as set forth in the notice of hearing was that petitioners "have divided a tract of land in the Town of Halcott * * * into five or more parcels along an existing or proposed street, highway, easement or right-of-way, for sale or for rent as residential lots or as residential building plots and * * * have sold or offered for sale one or more of such parcels without having a plan of such subdivision filed with and approved by the Department * * * and without having filed a plan or map in the Office of the Greene County Clerk.”

At the hearing, 27 deeds running from petitioners and conveying that number of parcels were received in evidence, said instruments containing metes and bounds descriptions but not specifying the acreage granted. Records of the Town Board of Assessors, admitted in respect to 23 of those parcels, indicated that the smallest contained .75 of an acre and that the largest consisted of 9 acres, that 5 were of 5 acres or more, that 6 were of at least 3 acres but less than 5, that the remaining 12 varied in size from .75 acre to 2.6 acres, with 7 being under 2 acres, and that 9 of those tracts were vacant, unimproved land at the time of the hearing.

Subdivision 1 of section 1116 of the Public Health Law, as in effect in 1962 (L 1960, ch 996, eff July 1, 1960), provided: "No subdivision or portion thereof shall be sold, offered for sale, leased or rented by any corporation, company or person, and no permanent building shall be erected thereon, until a plan or map of such subdivision shall be filed with and approved by the department and such plan or map thereafter filed in the office of the clerk of the county in which such subdivision is located.” By virtue of section 63 of chapter 204 of the Laws of 1963, effective October 1, 1963, said statute was amended by the insertion of the words "or city, county or part-county department of health having jurisdiction” after the word "department”; and said statute remained unchanged until May 18, 1971, when chapter 266 of the Laws of 1971 inserted a provision in respect to the filing and approval of a plan or map in Suffolk County. During the period in question (see L 1953, ch 879, eff June 1, 1954), pursuant to section 1115 of the Public Health Law and as used in section 1116 of said law, "the word 'subdivision’ shall mean any tract of land which is hereafter divided into five or more parcels along an existing or proposed street, highway, easement or right-of-way for sale or for rent as residential lots or residential building plots, regardless of whether the lots or plots to be sold or offered for sale, or leased for any period of time, are described by metes and bounds or by reference to a map or survey of the property or by any other method of description.”

The Appellate Division was correct in its holding that the administrative determination of the Commissioner of Health, assessing penalties of $6,150 against petitioners was not supported by substantial evidence. One phase of the statutory proscription, as included in the definition of "subdivision”, is that the tract of land be "divided * * * for sale or for rent as residential lots or residential building plots”. The terms "residential lots” and "residential building plots” are not defined in title II of article 11 of the Public Health Law, of which sections 1115 and 1116 are a part, or in the pertinent Rules and Regulations of the Department of Health (10 NYCRR 74.1 [a]). Of vital significance, however, the deeds contain no restrictions limiting the respective parcels to residential uses, there were no zoning regulations during the years in question affecting their enjoyment, and the record is barren of proof that petitioners sold the pieces of realty singly or collectively for residential purposes or held themselves out as subdividers of the land for said purposes. As pointed out, the use of the land by the grantees, in the absence of proof connecting that use with the grantors, does not constitute evidence binding on the latter to the effect that the original tract was divided for sale or for rent as residential lots or residential building plots.

Although a substantial question with respect to constitutionality is raised (see Public Health Law, § 12; Trio Distr. Corp. v City of Albany, 2 NY2d 690, 696; McKinney’s Cons Laws of NY, Book 1, Statutes, § 273), we do not reach it here.

Judgment affirmed, with costs.

Fuchsberg, J.

(dissenting). Section 1116 of the Public Health Law, and its definitional companion, section 1115, are neither unique nor novel. (Cf Matter of Sidebotham, 12 Cal 2d 434, 437-438; see 1A Antieau, Municipal Corporations Law, § 8A.21.) They are an exercise by the State of its police power to provide for the care, health and protection of the public by seeking to assure adequate and satisfactory water and sewage facilities for people moving into new population areas.

Since the enactment of then section 89 of the Public Health Law in 1933 (L 1933, ch 403), they have continued virtually unchanged, except for an amendment in 1952 (L 1952, ch 66) which reduced from 10 to 5 the minimum number of plots that had to be involved for the statutes to apply. (See 22 Opns State Comp, 1966, p 44; .20 Opns State Comp, 1964, p 44; 1964 Opns Atty Gen 108; 1950 Opns Atty Gen 161.)

In all those years, they never have contained, and do not now contain, language restricting their reach to those who overtly hold themselves out as subdividers; they speak rather of the actuality of subdividing, not the pronouncements of those engaging in it. To now read the statutes otherwise by failing to apply them to the present case would be to drain them of power, to achieve the beneficial public purpose for which they have so long existed. Review of the facts in this case, undisputed as they are in the main, makes this crystal clear.

Petitioners are not strangers to land ownership who stumbled into this situation willy-nilly. However it was originally assembled, when they inherited the property in August of 1962 it was one continuous stretch of farm land. They sold two plots later that year, one as a camp. There was no further sales activity until 1965. Petitioners appear to have then embarked on an intensive campaign to sell off the property piece by piece. By 1967, within the short space of about two years, they had conveyed no less than 14 plots to separate buyers; within a short time dwellings had actually been erected by 11 of the 14 purchasers. But no map or plans, as required by section 1116, had been filed with the local health department governing the Town of Holcott, Greene County, where the property was located.

Nor were these filed by 1970, when the Department of Health intervened, though the number of sales then had reached 27, and 20% of the property had been deeded away among 27 new and different owners. The rest remained for sale. Every single one of the 27 sales had been made to an individual. Inescapably one must conclude here that the use intended by these buyers from the very beginning was residential in character. Without exception, every single structure built by them was in the nature of a dwelling, two being of the trailer type and the remainder conventional houses.

The parcels, as found by the department’s hearing examiner on the basis of recorded deeds and the Town Assessor’s records, met the definitional requirements of section 1115 that they be along an existing "street, road highway or right-of-way”. Because of the irregular and hilly terrain, the sizes of the parcels sold varied, but they all were limited in acreage. Fully three quarters of them consisted of five acres or less, making them, where located, unsuitable for other than residential purposes (cf. Hornbeck v Towner, 14 AD2d 646).

Under these circumstances, it would cast common sense to the winds to fail to infer that petitioners knew that the parcels of their property were being marketed for residential use and that, however they may have originally contemplated it, the disposal of their property was in fact eventuating into the form of a realty subdivision. And certainly the word "residential” is of sufficient common usage for it to have been understood by them without special definition. As a term "used in contradistinction to 'business’ or 'commerce’ ” (77 CJS, Residential, p 308; cf. Matter of Penn Cent. Co. v Johnston, 32 AD2d 718), it applies fully to this present case where there has never been a whisper of a suggestion that the latter uses were ever contemplated by anybody. Also, from the questions that inevitably arise during negotiations for such sales, petitioners can hardly have failed to become conscious of the motivations of their purchasers. And, even if the intended purpose of any single purchase somehow had been shrouded in mystery, it was no longer possible for the petitioners to have blinded themselves to reality once buyer after buyer after buyer constructed a residence and concerned himself with the associated essential problems of water and sewage.

But if any conjecture at all as to petitioner’s clear understanding of what was going on were possible, it was dissipated when, on October 23, 1967, following the sale of the 14 parcels, the department sent written notification to the petitioners advising them that the State of New York regarded the ongoing sales of the lots to have assumed the character of a subdivision, and referring them to the appropriate sections of the Public Health Law. The receipt of the notification is not denied. It was ignored. Petitioners were not much more responsive when, their sales having by then nearly doubled in number, in answer to another letter from the department dated June 1, 1971, they replied that they were negotiating with a land surveyor who would file plans for them. Such plans were never filed. Nor was the surveyor, though named in the letter of reply, produced as a witness at the hearing.

At the hearing, petitioners offered no proof of any kind, whether lay or expert, to support any possible claim that the parcels of land had been sold with any other purpose in mind than their use as homesites. In short, there was not the slightest effort to put any different light on what had, for at least the three years since the department’s 1967 letter, come to be a knowing and defiant promotion of a residential realty division in open violation of the Public Health Law.

Therefore, it appears almost impossible under the facts of this case to escape the conclusion that the commissioner’s determination was supported by such substantial evidence as to interdict judicial rejection. It is no less so because petitioners did not, in the course of the promotion of the sale of their property, formally use the word "subdivision” or advertise it as such. Those would only have been evidentiary factors and it is inconceivable, on the record here, that they could have affected the decision. As was said in Hornbeck v Tower (14 AD2d 646, 647, supra): "[T]he defendant never filed any plans for a subdivision with the department and the broad policy and sweeping language of section 1115 supports the conclusion that at some point in time * * * the * * * initial solid tract of land became a subdivision within the meaning of the Public Health Law and [appellants were] thereby duty bound to satisfy the Department of Health that there were 'methods for obtaining and furnishing adequate and satisfactory water supply and sewerage facilities to said subdivision’.”

Needless to say, this is not a case involving few and random sales of parcels of land, made on an unconcentrated pace, over many years, to nonresidential as well as residential users, and for which there are explained reasons negativing an intention to subdivide. In such a case it might be possible that the commissioner who, it is to be noted, took no action here until the violation had become flagrant might, conceivably, have found that there was no subdivision.

But for the court to decide that section 1116 is inapplicable to facts which are as revealing and as compelling as those in the present case is to undermine the effectiveness of a statute which has played an important role in health enforcement for over 40 years, all the more so now that the regulation of land use has come to be a matter of overriding and almost universal public concern.

Finally, the strength of this case only underlines the fact that the determination of the commissioner was far from arbitrary or capricious. (Matter of Fisher [Levine], 36 NY2d 146, 150; Matter of Marsh [Catherwood] 13 NY2d 235, 239.)

Accordingly, we would reverse the order of the Appellate Division and reinstate the Commissioner of Health’s determination.

Chief Judge Breitel and Judges Gabrielli and Wachtler concur with Judge Cooke; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judges Jasen and Jones concur.

Judgment affirmed. 
      
      . The Appellate Division found that petitioners had conveyed 26 parcels.
     
      
      . The District Sanitary Engineer of said department, having jurisdiction over Greene County, received no complaints of sanitary violations or reports of local health officers concerning the subject properties.
     