
    The People of the State of New York, Appellant, v John Randazzo, Respondent.
    Argued October 24, 1983;
    decided November 29, 1983
    
      APPEARANCES OF COUNSEL
    
      John H. Galloway, III, Special Village Prosecutor {Henry J. Smith and James G. Fine of counsel), for appellant.
    
      Joseph A. Lichtenthal and Anthony T. Antinozzi for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, and the case remitted to that court for a determination of the facts. (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b].)

This appeal concerns a traffic ordinance enacted by the Village of Scarsdale, declaring Walworth Avenue a one-way northbound street for a 50-foot segment beginning at the Scarsdale border. Neither the beginning nor the end of the one-way segment is at an intersection. The restriction applies during the hours of 4:00 p.m. to 6:00 p.m. on weekdays, and it does not apply to Westchester County buses. Respondent, a newspaper reporter, was ticketed after traveling in the wrong direction during the prohibited hours and was convicted of violating the ordinance, the validity of which he questions. The Village Court upheld the ordinance, but the Appellate Term reversed, finding it an unreasonable traffic regulation.

Although the State is responsible for regulating the streets, it has delegated much of this power to municipalities. A village is empowered to designate “any highway or any separate roadway thereof for one-way traffic” (Vehicle and Traffic Law, § 1640, subd [a], par 4), and it may enact such additional reasonable traffic laws as local conditions may require. (Vehicle and Traffic Law, § 1640, subd [a], par 16.) A traffic ordinance established by a municipality will be upheld so long as it is reasonable and nondiscriminatory. (7 McQuillin, Municipal Corporations [3d rev ed], § 24.618.)

Where an ordinance limits through traffic, factors to be weighed in determining its validity include the availability of convenient alternate routes, any discriminatory effect, and the necessity for the regulation in relation to traffic conditions. (People v Grant, 306 NY 258; Jones Beach Blvd. Estate v Moses, 268 NY 362; Mobil Oil Corp. v Village of Roslyn Harbor, 69 Misc 2d 79 [Meyer, J.].) For example, in Grant, upon which defendant relies heavily, we sustained a challenge to an ordinance of the Town of North Hempstead which prohibited through traffic in a 10-block area and was designed to reserve the use of the streets to local residents. The ordinance in Grant banned all travel through the area, in whatever direction, and wherever destined. (306 NY, at p 264.) The Scarsdale ordinance, by contrast, does not impose a blanket prohibition. It forecloses only southbound traffic on one street for two hours each weekday.

On the present record, the Appellate Term was not justified in striking down the regulation. Defendant’s challenge consisted of little more than citing People v Grant. No motion was made to dismiss the information on grounds of invalidity. (CPL 170.30, subd 1, par [a]; 170.35, subd 1, par [c].) Defendant did not show that alternate routes were unavailable or that these routes, if available, were inadequate. No mention was made of undue inconvenience imposed on southbound travelers on Walworth Avenue. Nor did defendant allege, much less prove, that the ordinance was designed to favor residents rather than to eliminate a dangerous traffic condition. He established no discriminatory effect. The only clue to the purpose and effect of the ordinance is in the decision of the Village Justice, who took judicial notice that the ordinance was enacted to address “an extremely difficult traffic situation” on Walworth Avenue resulting from the closing of one or more entrances to the southbound Bronx River Parkway, and that the ordinance succeeded in eliminating the traffic danger. He further noted the existence of many alternate routes for entry to the parkway. These considerations would weigh in favor of upholding the ordinance.

The Appellate Term found, as an additional basis for the result reached, that the “One Way” and “Do Not Enter” signs were positioned between intersections, necessitating U-turns. Subdivision (b) of section 1110 of the Vehicle and Traffic Law prohibits the enforcement of an ordinance if a required sign is not in a proper position or sufficiently legible to be seen by an ordinarily observant person. But defendant did not question the positioning of the signs. Consequently, there is no proof in this record of the actual distance between the signs and the intersections, or of the ability of an ordinarily observant person to see the signs before proceeding past the intersections.

While we do not sanction the unusual measure of establishing a one-way segment within a block, the record before us is inadequate to declare the ordinance invalid.

Simons, J.

(dissenting). I would affirm the order of the Appellate Term invalidating the ordinance because it is not reasonably justified by necessity or public safety and because it discriminates against nonresidents of the Village of Scarsdale.

A municipality’s power to regulate traffic on its streets is derived from the Legislature. It may do so only as permitted by State law (Vehicle and Traffic Law, § 1604) and then only if such regulation is reasonable and nondiscriminatory. Reasonableness is determined by what is necessary and justified by the requirements of public safety (7 McQuillin, Municipal Corporations [3d rev ed], § 24.610; and see People v Grant, 306 NY 258) and discriminatory impact is to be judged by the general rule that the public streets are for public use and a municipality may not discriminate by restricting them for its own residents “in priority to or exclusive of use by the general public” (People v Grant, 306 NY 258, 262, supra; see, also, City of New York v Rice, 198 NY 124, 128; 10 McQuillin, Municipal Corporations [3d rev ed], § 30.49, p 685). In considering the relationship between the judiciary and local legislatures it is to be remembered that the courts cannot invalidate ordinances unless they are unconstitutional, ultra vires or unreasonable. Ordinances properly enacted pursuant to delegated powers, however, may be invalidated if they operate unreasonably or arbitrarily under the circumstances (see Associated Transp. v City of Syracuse, 274 App Div 565; see, also, 56 Am Jur 2d, Municipal Corporations, § 386 et seq.).

Thus, while the village unquestionably had the power to designate certain village streets as one-way (see Vehicle and Traffic Law, § 1640, subd [a], par 4), the question before us on this appeal is whether it lawfully exercised that power when it designated a mid-block 50-foot segment of a highway, at the village boundary line, as one-way to prevent the entry of nonresident traffic. That the ordinance discriminates is established by its terms which permit buses but not cars to travel south on Walworth Avenue and by evidence in the record that the restriction is not applied to residents living along Walworth Avenue in the restricted area because they are permitted, as a matter of custom if not as a matter of legal right, to travel the wrong way on the 50-foot strip and proceed south to the village.

Moreover,- the ordinance is unreasonable because it blocks the entry of traffic into the village at the village line, not for any manifested consideration of public safety, but rather as a private convenience to those living in this residential area. That being so, the regulation is no less offensive than a physical barricade closing the street to outsiders (see People v Grant, 306 NY 258, supra; Merritt Manor Estates v Village of Elmsford, 30 Misc 2d 935 [Hopkins, J.]).

The ordinance was properly declared void because it manifestly was designed to exclude automobile traffic in the area, not to regulate it.

Judges Jasen, Jones, Meyer and Kaye concur; Judge Simons dissents and votes to affirm in an opinion in which Chief Judge Cooke and Judge Wachtler concur.

Order reversed and case remitted to the Appellate Term, 9th and 10th Judicial Districts, for further proceedings in accordance with the memorandum herein. 
      
       The dissent concludes that the ordinance is not reasonably justified by necessity or public safety, and that it discriminates against nonresidents of the Village of Scarsdale. These would certainly have been grounds for invalidating the ordinance, had there been evidence to support them. The fact that county buses are permitted to travel south on Walworth Avenue fails to establish discrimination and may even support a conclusion that the ordinance operates not to favor Scarsdale residents or exclude the public but to eliminate undue congestion and traffic danger. Similarly, no discrimination in favor of Scarsdale residents was shown. The testimony at best indicated that in isolated cases a local resident coming out of one of the two or three driveways within the 50-foot segment was permitted to travel south — hardly a foundation for the legal conclusion that the ordinance discriminated against nonresidents of the Village of Scarsdale.
     