
    Felix Stevens et al., Appellants, v. Town of Huntington et al., Respondents.
    Argued May 15, 1967;
    decided July 7, 1967.
    
      Charles T. Matthews for appellants.
    I. Rezoning of plaintiffs’ property from a commercial to a residential classification was confiscatory and unconstitutional. (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Shepard v. Village of Skaneateles, 300 N. Y. 115; Mary Chess, Inc. v. City of Glen Cove, 18 N Y 2d 205; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Dowsey v. Village of Kensington, 257 N. Y. 221; Town of Hempstead v. Lynne, 32 Misc 2d 312; Chusud Realty Corp. v. Village of Kensington, 22 A D 2d 895; Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269; Rockdale Constr. Corp. v. Incorporated Vil. of Cedarhurst, 275 App. Div. 1043, 301 N. Y. 519; Gardner v. Le Boeuf, 24 Misc 2d 511; Attoram Realty Corp. v. Town of Greenburgh, 8 A D 2d 937; Matter of Fucigna v. O’Connor, 14 Misc 2d 698; Horn Constr. Co. v. Town of Hempstead, 41 Misc 2d 438; Summers v. City of Glen Cove, 21 A D 2d 884, 17 N Y 2d 307; Thomas v. Town of Bedford, 11 N Y 2d 428; Gerzof v. Town of Huntington, 8 A D 2d 841, 8 N Y 2d 788; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393.) II. Residential zoning of plaintiffs’ property is arbitrary and discriminatory. (Udell v. McFadyen, 40 Misc 2d 265.) III. Plaintiffs were not obligated to apply for a variance before proceeding with this action. (Town of Hempstead v. Lynne, 32 Misc 2d 312; Scarsdale Supply Co. v. Village of Scarsdale, 8 N Y 2d 325.)
    
      Arthur Goldstein for respondents.
    I. The determination that the residential zoning does not unreasonably restrict the use of appellants’ property was properly affirmed by the Appellate Division. (Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269; Rodgers v. Village of Tarrytown, 302 N. Y. 115; Wiggins v. Town of Somers, 4 N Y 2d 215; Atlas v. Dick, 275 App. Div. 670, 299 N. Y. 654; Udell v. McFadyen, 40 Misc 2d 265; New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, 3 N Y 2d 844; Matter of Haussman v. Oatley, 285 App. Div. 832; Town of Hempstead v. Lynne, 32 Misc 2d 312; Arverne Bay Constr. Corp. v. Thatcher, 278 N. Y. 222; Dowsey v. Village of Kensington, 257 N. Y. 221; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Summers v. City of Glen Cove, 17 N Y 2d 307; Ulmer Park Realty Co. v. City of New York, 270 App. Div. 1044, 297 N. Y. 788; Capobianco v. Town of North Hempstead, 21 Misc 2d 32; MacEwen v. City of New Rochelle, 149 Misc. 251; Shapiro v. Town of Oyster Bay, 27 Misc 2d 844; Gardner v. Le Boeuf, 24 Misc 2d 511, 15 A D 2d 815; Matter of Forrest v. Evershed, 7 N Y 2d 256; Matter of Shaw v. Giglio, 31 Misc 2d 282; Euclid v. Ambler Co., 272 U. S. 365; Hadacheck 
      v. Los Angeles, 239 U. S. 394; Shepard v. Village of Skaneateles, 300 N. Y. 115; Osborne v. Village of East Hampton, 271 App. Div. 837.) II. Appellants have failed to prove that the residential zoning of their property is arbitrary and discriminatory. (Udell v. McFadyen, 40 Misc 2d 265.) III. Appellants failed to exhaust their administrative remedy. (Matter of Stevens v. Horn, 40 Misc 2d 351; Scarsdale Supply Co. v. Village of Scarsdale, 8 N Y 2d 325; Town of Cortlandt v. McNally, 282 App. Div. 1072; Grac v. Town of Hempstead, 9 Misc 2d 935; New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, 3 NY 2d 844; People v. Calvar Corp., 286 N. Y. 419.)
   Keating, J.

The appellants own about one acre of residentially zoned property on the northeast corner of Schwab Road and Route 110 in the Town of Huntington. They contend, thus far unsuccessfully, that the property is unsuitable for residential use and that the zoning classification so restrictive is unconstitutional in its application to their premises.

Route 110, in the vicinity of appellants’ property, is a heavily travelled north-south artery running through the Town of Huntington. Abutting property on Rdute 110 is commercially zoned and commercially used. Adjoining appellants’ property to the north on Route 110 are, successively, three empty stores, a bank and a large shopping center containing three major department stores, Korvette, Macy’s, and Abraham and Strauss. In the rear of Korvette’s department store is a tire center which services automobiles until late in the evening. From the pneumatic devices used therein irritating noises emanated throughout the day. Across Schwab Road, directly to the south of appellants’ property, is a Friendly Frost store. Across Route 110, directly to the west of the premises, is a supermarket. Diagonally across Route 110, at the southwest corner, are a number of small retail stores. This leaves only the property to the east of appellants’ land, on Schwab Road, for consideration. It, like appellants ’ property and the remainder of the property to the east, is residentially zoned, but, save for a single residential neighbor, the rest of the street to the next intersection will be used by the New York Telephone 'Company for housing electronic equipment to serve the community. This is a permitted qse for the residentially zoned Schwab Road,

The total picture which thus emerges has the appellants and one residential neighbor immersed in a well-travelled, highly commercial shopping area, aptly described by the town’s own expert as the hottest in Long Island.”

The chronology of events sheds some light on the evolution of the present situation. When appellants purchased the premises in 1950, the property was then in a quiet residential area. In 1955, the State undertook to widen and relocate the old Boute 110 and, in so doing, a portion of the appellants’ premises was taken. In 1959, the Town of Huntington rezoned appellants’ property along with other land on the north side of Schwab Boad as a Planned Shopping Center District, authorizing its use for the normal run of retail outlets usually found in suburban shopping areas. Construction of the shopping plazas already mentioned followed. Thereafter, in July, 1962, the appellants applied for permission to construct a restaurant on their property, then commercially zoned. The following month, the property was again rezoned by the town for residential use, allowing it to be used only for a home, church, school, library, fire station, telephone exchange, or professional office of a person who resides on the premises.

Justification for the rezoning of appellants’ property is grounded on the community’s desire to retain the residential character of Schwab Boad and to alleviate — or at least not compound — the already serious problem of traffic congestion existing at the intersection of Schwab Boad and Boute 110.

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.

Traffic congestion is a legitimate concern of government — readily brought within the police power to zone for the health, safety and welfare of the community (Matter of Larkin Co. v. Schwab, 242 N. Y. 330). So too is the goal of retaining the residential character of a neighborhood (Matter of Wulfsohn v. Burden, supra). But if these aims, admirable as they may be, have the effect of depriving a property owner of making any reasonable use of his property, there is a taking in violation of the Constitution. We think this is such a case.

At the outset, we note a certain paradox. The town, as already stated, rests its ordinance on the dual desire to retain the residential character of the area and to relieve a congested traffic problem. But as the court at Special Term commented: “ These arguments are somewhat contradictory. If Schwab Road is already congested then residential characteristics have been somewhat diminished, and the rationale appears to be slightly unrealistic” (46 Misc 2d 604, 606). In other words, as borne out by the facts, the residential character of Schwab Road has already been substantially destroyed at the corner of Route 110 by the density of traffic. At best, the retention of the property as residential would only serve to prevent a further increase in traffic, but it would do nothing to affect the character of the property as it now exists. As we said in another context, ‘ ‘ However compelling and acute the community traffic problem may be, its solution does not lie in placing an undue and uncompensated burden on the individual owner of a single parcel of land in the guise of regulation, even for a public purpose ” (Vernon Park Realty v. City of Mount Vernon, supra, p. 498).

Situated as the property is, adjacent to a large shopping area, it can hardly be said that the land is reasonably adapted to residential use. This does not mean, of course, that it is impossible to use the property as a residence. It has, in fact, been so used since 1950. But, in the intervening years, the character of the surrounding area has changed so radically that it is unreasonable to demand that the property be continued for use as a residence only. The burdens of traffic on Route 110, the noise, and the stores in the area, all contribute to making the property unsuitable for residential use — a fact amply established by the evidence.

Although there is a wide spread between the value of the property as presently zoned and its value, if zoned for commercial use, this disparity, of course, does not ipso facto render the restrictive zoning unconstitutional (Matter of Wulfsohn v. Burden, supra; Dowsey v. Village of Kensington, 257 N. Y. 221). In the circumstances, however, it is a significant indication of the use to which the property can reasonably be applied. When taken in conjunction with the factors already mentioned — the traffic and the adjacent shopping area — it becomes clear that the residential limitation is unreasonable. (See Rockdale Constr. Corp, v. Incorporated Vil. of Cedarhurst, 301 N. Y. 519; Summers v. City of Glen Cove, supra.)

Dowsey v. Village of Kensington [supra) presented a similar situation. There, as in the present case, residentially zoned property fronted on ‘ ‘ the most active thoroughfare of that district ”. And there, as here, the residential property was particularly adaptable for commercial use and located adjacent to commercially zoned land. Finally, there, as here, a great disparity existed between the value of the property limited to residential use and its value as commercial property. We held that the restriction was patently unreasonable in its application to the particular premises.

Similarly, in the present case, the property in question is so totally unadaptable for residential use that the existing ordinance, as applied to it, amounts practically to confiscation. It is, therefore, unreasonable and void in its application to the appellants’ premises.

The order of the Appellate Division should, therefore, be reversed, with costs in all courts.

Bergan, J.

(dissenting). Plaintiffs’ property was bought for residence purposes and it was developed solely for this purpose by erecting a dwelling on it. Plaintiffs have not shown that which must be shown under the New York practice in an attack on the constitutional validity of a zoning ordinance, that the town’s residential classification (Residence C) precludes the owners from "use for any purpose to which it is reasonably adapted” (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 226).

Nor have they a vested right in the continuance of the prior commercial zoning classification. Plaintiffs applied in July, 1962, as the majority opinion .states, for a permit .to construct a restaurant while their property was zoned as a shopping center district; but this application was not made until over a month after a public hearing was held to rezone the area for residential use and while the matter was before the board. Plaintiffs never made any commercial use of the property. (New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, affd. 3 N Y 2d 844.)

Although the court is acting upon words having heavy implications of invalidity, .such as confiscatory ”, “ arbitrary ” and ‘ capricious ’ ’, the issue in actuality amounts to a routine controversy turning on a difference of opinion between local zoning officials and property owners on zoning classification.

The merits are arguable either way, but it takes more than that to invalidate a zoning regulation. For the property owners it is said that the large commercial development along Route 110 adjoining them to the north and on the other side of that road from them suggests their property, too, should be zoned for commercial use.

From the town’s viewpoint it is said that since plaintiffs’ property is actually located on Schwab Road and the property on both sides of that road for a considerable distance to the east (and its extension as Wolf Hill Road) is zoned and used for residential purposes, it is reasonable to continue to zone plaintiffs’ property as Residence 0. The telephone installation on Schwab Road is not a “ residence ”, but it is a permitted use in this zoning classification and does not affect the merits. All the rest of the property on Schwab Road and its continuation concededly is used for residence purposes.

The town also argues that there must always be some fixed point in zoning allocation at which commercial use of land ought to stop and residential use begin; that this residential street is reasonably such a point; and it is in the interest of public safety not to increase commercial usage and consequent traffic concentration in this area. Terms such as “ confiscatory ”, “ arbitrary ” and u capricious ” do not easily fit into a reasonable solution by responsible local officers, such as this obviously is, to a local problem.

Besides this, there is an issue of fact based on opinion evidence given on the trial as to the reasonableness of the classification which has been resolved against plaintiffs both at Special Term and at the Appellate Division. Evidence for the town based on expert opinion fully supported the reasonableness of the classification.

Aside from this affirmed factual evaluation, the ability of the Court of Appeals within its prescribed constitutional function as a law court of review to make an original local zoning choice as to the way property should or should not be zoned to supplant the judgment of town zoning authorities is, to say the least, open to serious doubt. We are not adequately equipped, either by technical experience or special competence, to devise wisely a detailed revision of local zoning arrangements.

Restrictive judicial preconceptions concerning the planned use of land, affecting zoning, as well as planned use of water resources, have come under increasing criticism for their long-term adverse effect on the public interest.

It has been observed, for example, that an “ individualistic bias in American legal style inhibits the development of an effective system of legal controls under which the conditions for urban self renewal can be optimized".

To this comment a more contemporaneous note has been added that this “ individualistic bias ” is “ the core of all of our land and water resource problems ”.

Moreover, plaintiffs have failed to pursue to the end available administrative remedies before resorting to judicial review (New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, supra).

The order should be affirmed.

Judges Van Voorhis, Burke and Scileppi concur with Judge Keating; Judge Bergan dissents and votes to affirm in an opinion in which Chief Judge Fule and Judge Breitel concur.

Order reversed, with costs in all courts, and matter remitted to Supreme Court, Suffolk County, for entry of judgment in accordance with the opinion herein. 
      
      . Mandelker, Daniel R., The Role of Law in the Planning Process (30 Law & Contemp. Prob. 26, 27).
     
      
      . Dali, Benjamin V., Law and Resources Problems (53 A. B. A. J. 433, 434 [May, 1967]).
     