
    George Cannata et al., Appellants, v. City of New York, Respondent.
    Argued February 26, 1962;
    decided April 26, 1962.
    
      
      Raphael H. Weissman for appellants.
    I. On its face and as applied herein, former section 72-n of the General Municipal Law is unconstitutional. Section 72-n is not within slum clearance authorized by section 1 of article XVIII of the New York State Constitution and it also goes beyond the express limitation of section 10 of that article. (Matter of Murray v. La Guardia, 291 N. Y. 320; Kaskel v. Impellitteri, 306 N. Y. 73.) II. The finding of blight without tangible, physical blight is capricious and denies State and Federal constitutional due process. Section 72-n authorizes the condemnation of private property for a private purpose in denial of State and Federal constitutional due process. (Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333; Cincinnati v. Vester, 281 U. S. 439; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; 64th St. Residences v. City of New York, 4 N Y 2d 268; Matter of Mayor, Alderman & Commonalty of City of N. Y., 135 N. Y. 253.) III. Insofar as the action seeks declaratory judgment, it may be maintained whether or no the additional relief of injunction is available and whether or no there would be irreparable damage and whether or no a defense might he asserted in a condemnation proceeding when authorized. (Dun & Bradstreet v. City of New York, 276 N. Y. 198; Schneider v. District of Columbia, 117 F. Supp. 705; Berman v. Parker, 348 U. S. 26.)
    
      Leo A. Larkin, Corporation Counsel (Pauline K. Berger of counsel), for respondent.
    I. The challenged statute and project are valid under the State and Federal due process clauses. The reclamation and redevelopment of vacant dead areas, including the Flatlands Project area, is a public use, justifying condemnation. (Berman v. Parker, 348 U. S. 26; Kaskel v. Impellitteri, 306 N. Y. 73, 347 U. S. 934; Matter of Murray v. La Guardia, 291 N. Y. 320, 321 U. S. 771; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333; Matter of Brous v. Smith, 304 N. Y. 164; Matter of Mayor, Alderman & Commonalty of City of N. Y., 135 N. Y. 253; Matter of Cooper, 28 Hun 515, 93 N. Y. 507; People of Puerto Rico v. Eastern Sugar Associates, 156 F. 2d 316, 329 U. S. 772.) II. Tangible physical blight is not a prerequisite to constitutionality. III. Article XVIII of the New York State Constitution supports the validity of the taking authorized by section 72-n of the General Municipal Law. IV. Constitutionality of the proposed taking though confirmed by article XVIII is not dependent upon it. (People ex rel. New York Cent. & H. R. R. R. Co. v. Priest, 206 N. Y. 274; Berman v. Parker, 348 U. S. 26; Weitzner v. Stichman, 271 App. Div. 255, 296 N. Y. 907; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333.) V. Incidental private benefit does not diminish “ public use ” of the proposed project. VI. Section 10 of article XVIII of the Constitution does not prohibit industrial redevelopment. VII. Plaintiffs’ contention that the taking is for a private use is utterly unsupported in the record and contrary to the undisputed facts in the record. (Deniham Enterprises v. O’Dwyer, 302 N. Y. 451.) VIII. The commission’s designation and finding, being legislative in nature and having a rational basis, is not reviewable by the court. IX. The designation of the area and the appropriation of funds for its study did not violate the Federal or State due process clause.
   Chief Judge Desmond.

Sixty-eight home owners in the Canarsie section of Brooklyn bring this suit for a declaratory judgment that section 72-n of the General Municipal Law is unconstitutional on its face and as applied to the proposed redevelopment of the area in which these people live. Since April, 1961 this statute, or one like it, has become part of article 15 of the General Municipal Law but at the times here in question it was section 72-n of that law (L. 1958, ch. 924). The section authorizes cities to condemn for the purpose of reclamation or redevelopment predominantly vacant areas which are economically dead so that their existence and condition impairs the sound growth of the community and tends to develop slums and blighted areas. There are in the statute declarations by the Legislature that such reclamation and redevelopment of such areas are necessary to protect health, safety and general welfare, to promote the sound growth of the community, etc. Recited by the Legislature were a number of conditions or, combinations thereof ’ ’ which 1 ‘ with or without tangible physical blight ” impair or arrest the sound growth of the community or tend to create slums or blighted areas. There are seven of these listed conditions as follows: subdivision of the land into lots of such form, shape or size as to be incapable of effective development; obsolete and poorly designed street patterns with inadequate access; unsuitable topographic or other physical conditions impeding the development of appropriate uses ; obsolete utilities; buildings unfit for use or occupancy as a result of age, obsolescence, etc.; dangerous, unsanitary or improper uses and conditions adversely affecting public health, safety or welfare; scattered improvements. The statute then goes on to declare that land assembly by individual or private enterprise for purpose of redevelopment in such areas is difficult of attainment, that the conditions above listed create tax delinquency and impair the sound growth of the community, that there is a shortage of vacant land in such communities for residential and industrial development, that it is necessary to clear, replan and redevelop such vacant land, and that for such purposes it is necessary that municipalities be given the condemnation and other powers provided by the act. It is particularly to be noted that the statute, while it becomes applicable on the existence of certain listed factors or combination of factors, expressly requires that the area is ‘1 predominantly vacant ’ \ Of the area here involved at least 75% is vacant. Section 72-n, beginning at paragraph a of subdivision 3 thereof, describes the procedure. The Planning Commission, after public hearing, may designate an area for these purposes providing there are findings that the area is vacant or predominantly vacant, and, in addition, findings as to the existence of some or all of the seven conditions above listed and findings that those conditions impair or arrest the sound growth of the community or tend to create slums or blighted areas. The Planning Commission must then make a detailed statement of the existing physical, economical and sociological conditions in the project area and a general statement of the new project and there must be hearings on a preliminary plan and approval of the preliminary and final plan by the local legislative body,' whereupon the municipality may acquire the property by condemnation or .otherwise and may sell it for the purpose of clearing, replanning, redevelopment, etc., in accordance with the final plan.

This action came into Special Term on the city’s motion for a dismissal of the complaint and for summary judgment and the court held that plaintiffs are not entitled to relief. On appeal to the Appellate Division, Second Department, that court modified only to the extent of directing that judgment go for defendant city, the court holding that in an action for declaratory judgment the granting of a motion by the defendant for judgment on the pleadings properly results not in a dismissal of the complaint but in a declaration on the merits in favor of defendant. The Appellate Division, as stated, modified by directing a declaratory judgment for the city.

This complaint does not allege any failure to carry out any of the statutory procedures. It points out that the Planning Board in this case made findings not only as to the vacancy of a large part of the area but also of these statutory factors: that the land is subdivided into plots of such form, shape and insufficient size as to prevent effective economic development, that the streets are obsolete and of poorly designed patterns, and that the improvements are scattered and incompatible with appropriate development. The real basis of the complaint is its statement that there is in the area no such “ tangible physical blight ’ ’ as to constitute the area of slum. Plaintiffs’ argument, most simply put, is that this taking is not for a public use ” because it is a taking of nonslum land for development into a so-called “ Industrial Park ” or area set aside for new industrial developrnent. We agree with the courts below that an area does not have to be a “ slum” to make its redevelopment a public use nor is public use negated by a plan to turn a predominantly vacant, poorly developed and organized area into a site for new industrial buildings.

We see nothing unconstitutional on the face of this statute or in its proposed application to these undisputed facts. Taking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use (Matter of Murray v. La Guardia, 291 N. Y. 320; see Kaskel v. Impellitteri, 306 N. Y. 73, cert. den. 347 U. S. 934; Cuglar v. Power Auth. of State of N. Y., 3 N Y 2d 1006). The condemnation by the city of an area such as this so that it may be turned into sites for needed industries is a public use (see Graham v. Houlihan, 147 Conn. 321; Opinion of the Justices, 334 Mass. 760; Wilson v. Long Branch, 27 N. J. 360; People ex rel. Adamowski v. Chicago Land Clearance Comm., 14 Ill. 2d 74; Berman v. Parker, 348 U. S. 26).

The judgment should be affirmed, with costs.

Van Voorhis, J. (dissenting).

The appeal is from a declaratory judgment upholding the constitutionality of former section 72-n of the General Municipal Law. Pursuant to this section, which is now repealed and has been re-enacted in modified form in article 15 of the General Municipal Law, the City of New York proposes to condemn about 95 acres in the Canarsie section of Brooklyn to be resold to private developers — who are as yet unidentified and uncommitted—for a project to be known as ” Flatlands Urban Industrial Park”, which, in the opinion of the Board of Estimate and the City Planning Commission, will be more advantageous to the future of the city than the lawful uses to which the properties are being devoted by their present owners. There is no finding that any of this area is substandard or insanitary—i.e., slum. Plaintiffs are owners of 68 private residences which are not claimed to be physically deteriorated. The statute under which condemnation is undertaken authorizes acquisition by the city without physical blight of vacant or predominately vacant areas”. Vacant land comprises 75% of this area. The buildings are clustered together for the most part and not scattered through the vacant lands, nor is it necessary to condemn many of them in order to utilize the vacant lands except as the city planners deem it wise to enlarge the vacant area by converting residential to industrial purposes. This is not a case of slum clearance as the condemnation site was held to be in Kaskel v. Impellitteri (306 N. Y. 73). The present exercise of the power of eminent domain transcends anything involved therein. This kind of municipal redevelopment is not based on what was thought to have been the full scope of such enterprises by the New York State Constitutional Convention of 1938, for it goes beyond what is authorized by the housing article (N. Y. Const., art. XVIII) then added to the State Constitution, which provides only for low-rent housing or the reconstruction and rehabilitation of areas that are actually substandard and insanitary. This proceeding is not instituted on the basis that this area is substandard or insanitary but that the city will be improved if real property in good condition is transferred to other private owners who, in the judgment of city planners, will use it for more progressive purposes deemed to be more in accord with development of the municipality. Such a practice may bear hard on the owner, who loses the good will connected with his location (Banner Milling Co. v. State of New York, 240 N. Y. 533) and, in a world where politics is seldom absent from municipal administration, runs the risk of having his property taken from him to be transferred to more deserving owners.

Matter of Murray v. La Guardia (291 N. Y. 320) and Kaskel v. Impellitteri (supra) marked a major step beyond what had theretofore been held to be public purposes in the exercise of the power of eminent domain. Property owners had been accustomed to parting with their real estate involuntarily where required for governmental uses such as highways, public buildings, parks, or for the use of transportation or public utility corporations deemed to be affected with a public interest. In 1936 it was held that substandard and insanitary real estate could be condemned to be replaced with public housing or limited dividend housing corporations (Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333). The Murray and Kasltel cases signified a departure in that there condemnation of real property was sanctioned for resale to other private owners, for ordinary private uses not affected with a public interest. The public purpose was conceived to be the elimination of slums to which resale of the subject property to other private owners was incidental. The difference of opinion on the court in Kaskel v. Impellitteri Avas confined to Avhether the site to be condemned in that case could be classified as being slum; the court was unanimous concerning the constitutionality of the • statute there involved. Noav we are faced with a further step in the socialization process. It does not necessarily follow that because the former statute was upheld this statute must be constitutional also. In ruling upon the validity of a statute like this, we are not to proceed upon the assumption that the Legislature has plenary power or none. “ The state under the guise of paternal supervision may attempt covertly and gradually to mould its members to its will. The difference as so often is a difference of degree.” (Cardozo: The Paradoxes of Legal Science, p. 111.) I see no escape from the duty and responsibility of courts in ruling upon the constitutionality of legislation of this kind to weigh the social values which are involved, including the social value of ownership of private property, in order to determine whether the Legislature has exceeded its power under the Federal and State Constitutions.

Conceding that the poAver of eminent domain has been extended to the elimination of areas that are actually slum, the question here is whether this power can be further extended to the condemnation of factories, stores, private dAvellings or vacant land which are properly maintained and are neither substandard nor insanitary, so that their owners may be deprived of them against their will to be resold to a selected group of private developers whose projects are believed by the municipal administration to be more in harmony with the times. It begs the question, in my judgment, merely to assert that such properties are to be taken to prevent them from becoming actually blighted at some future date. It is possible that there are certain definable situations where conditions can constitutionally be eliminated which tend to produce slums, before the properties have deteriorated to that level. It is possible that some of what is contemplated by this statute, including portions of this project, could be accomplished under more limited legislation. What has been attempted under a statute in a particular instance does not determine its constitutionality which is adjudged in the light of Avhat could be done according to its terms (Rosalsky v. State of New York, 254 N. Y. 117, 121; McKinney’s Cons. Laws of N. Y., Book 2, Part 1, Constitutional Interpretation, n. 39, p. 40). The 1958 statute sub judice is not satisfied by eliminating slums. It provides for the elimination -of potential slums, which means anything that city planners think does not conform to their designs.

It might be thought, perhaps, that in the march of progress there is no limit to the power of the Legislature even short of authorizing municipal officials to determine, through zoning or eminent domain, who shall be permitted to own real estate in cities and to what purpose each separate parcel may be devoted. The sound view is still, however, that due process includes substantive as well as merely procedural limitations and that under the mores of the day there are substantive limits to what municipalities can do with private property, even by means of statutes enacted under the spur of single-minded city planners imbued with evangelistic fervor. At some stage the rights of private property owners become entitled to be respected, even if their use of their properties does not coincide with the ideas, however enlightened, of the avant garde. The public theorists are not always correct; if they had full sway a century and a quarter ago the country would have invested its substance in the construction of canals, which any intelligent theorist would have seen was the effective way to promote the economic development of the United States. The railroads were just around the corner, but their advent was obvious to nobody. Imposing some constitutional limit to the extremely wide scope of this statute would be a far cry from returning to the days of laissez faire. There are those among whom the writer is one who believe that, although the Constitution does not enact Mr. Herbert Spencer’s Social Statics, it nevertheless holds substantive content in social matters and does mandate, at the minimum, some sort of economic or social middle way. It is not for the courts to question the wisdom of the Legislature in exercising the discretion which it has within constitutional limits, but there are limits to legislative power in dealing with private property and in my view they are exceeded by the breadth of the statute on whose constitutionality we are now ruling. The fundamental principle of government still applies which the mentor of the young Cyrus tried to implant in him in ancient Persia. "When asked whether a ruler should compel a subject whose coat was too large for him to trade it with another whose coat was too small, if one of them objected to the exchange, the young future ruler replied in the affirmative, for the reason that then each would have a coat that fitted him. The mentor told him that he was wrong, since he had confused expediency with justice. The question here, it seems to me, is where to draw the line between supposed expediency and justice. In Berman v. Parker (348 U. S. 26), the actual decision of the court did not go beyond what this court decided in Kaskel v. Impellitteri (306 N. Y. 73, supra), where it was recognized in both opinions that land, buildings or improvements, not in themselves insanitary or substandard, may be included in the condemnation site if necessary for the effective clearance, replanning, reconstruction or rehabilitation of the essentially slum area of which such land or property is a part. The question before the United States Supreme Court in the Berman case was whether a department store could be condemned which was so connected with a blighted area that the latter could not be rehabilitated without including the land occupied by the store. That was not a case, like this, of so-called ‘1 intangible blight. ’ ’ The principal area there was substandard and insanitary without dispute: 64.3% of the dwellings in it were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating. All of those circumstances were noted in the opinion of the court by Mr. Justice Douglas, who recognized that there was a basis on which the municipal planning commission could determine that the subject property was so interrelated with the slum properties that the latter could not be effectively eliminated without the former. Although the opinion uses broad language in certain paragraphs, which do speak of unlimited power in the planning commission, these obiter dicta should be limited and construed by what the same Supreme Court Justice said in his dissenting opinion in United States v. Wunderlich (342 U. S. 98, 101): “ Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.” Nothing in the facts decided in Berman contravenes, it seems to me, the trenchant statements in the opinion in the same case of the three-judge District Court (Schneider v. District of Columbia, 117 F. Supp 705, 719-720), which are perhaps more applicable to this case than to that in which the words were spoken:

“ Even if the line between regulation and seizure, between the power to regulate and the power to seize, is not always etched deeply, it is there. And, even if we progress in our concepts of the ‘ general welfare ’, we are not at liberty to obliterate the boundary of governmental power fixed by the Constitution.
The terms ‘ public use ’ and ‘ public purpose ’ have never been defined with precision, and cannot be. Localities, customs and times change, and with them the needs of the public may change. But even the most liberal courts have put boundaries upon the meanings. One eminent authority sums up the matter by saying that the courts which go furthest in sustaining the power of eminent domain hold that £ anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor ’ constitutes a public use. We think so unqualified a definition cannot be sustained, because every factory or mercantile house of any size meets that definition to some degree, and most certainly the Government has not an unrestricted power to seize one man’s property and sell it to another for the building of a factory or a store. The decisions of the courts which used such sweeping language and which are cited to us fall far short of supporting the contention made to us in the present case. We shall discuss them in a moment.
“It is said that the established meaning of eminent domain includes measures for the ‘ general welfare ’ and that new social doctrines have so enlarged the concept of public welfare as to include all measures designed for the public benefit. The difficulty lies somewhat in the unqualified philosophical declaration, but it lies more in the practicality that some person or persons must determine, if that be the rule, what is the public benefit. Therein lies the insuperable obstacle, in the American view. There is no more subtle means of transforming the basic concepts of our government, of shifting’ from the preeminence of individual rights to the preeminence of government wishes, than is afforded by redefinition of ‘ general welfare ’, as that term is used to define the Government’s power of seizure. If it were to be determined that it includes whatever a commission, authorized by the Congress and appointed by the President, determines to be in the interest of ‘ sound development ’, without definition of ‘ sound development ’, the ascendancy of government over the individual right to property will be complete. Such ascendancy would logically follow over the rights of free speech and press, it seems to us.”

Few more persuasive illustrations could be found than the statute (not necessarily the particular project) now before us for decision of situations where Absolute discretion ”, in the language of Mr. Justice Douglas, can be more destructive of freedom than any of man’s other inventions.” I do not imply that this power necessarily would be used to that end, but it potentially can be so employed. The constitutionality is to be tested by what can be done under this statute. If we uphold its validity, that means upholding everything which is an integral part of the act that can be done under its language.

Whether or not a proposed condemnation is for a public purpose is a judicial question (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451, 457). Perhaps the power of eminent domain might be invoked for the rehabilitation of vacant areas subdivided into lots of such irregular form and shape or insufficient size, depth, or width, as to render them incapable of effective or economic development; or rendered sterile by obsolete or poorly designed street patterns with inadequate access to such vacant areas rendering them unsuitable for appropriate development. It is possible that there are other conditions enumerated in former section 72-n of the General Municipal Law which could furnish a basis for condemnation. Nevertheless this act contains, in my judgment, fundamental defects which invalidate it. Thus it declares that in event of any of the factors existing which are enumerated in subparagraph a of subdivision 1, ‘ ‘ with or without tangible physical blight,” real property may be condemned if such areas impair or arrest “ the sound growth of-the community and tend to create slums and blighted areas.” Among- the factors enumerated are unsuitable topographical or other physical conditions impeding the development of appropriate land uses; an obsolete system of utilities serving the area, whatever that may mean; buildings and structures unfit for use and occupancy as a result of age, obsolescence, improper uses and conditions which adversely affect the general welfare; scattered improvements which retard the development of the land. When asked upon the argument of the appeal whether this means that the power' of eminent domain may be invoked in any case of this nature where, in the judgment of municipal officers, the property should be acquired and sold to some other private owners who would agree to use it for purposes that would accord more nearly in their judgment with the progress of the municipality, the Corporation Counsel replied in the affirmative. He could hardly do otherwise, in view of the language of the statute.

Neither is it sufficiently clear or definite what constitutes a “ predominantly ” vacant area. In order that the power of eminent domain may be invoked for this purpose, under this statute the area to be condemned must be ‘1 vacant ” or “ predominantly vacant.” In the case of this project it appears that the area is 75% vacant. We were told upon the argument that it would be enough if it were 50% vacant. The land which is occupied by buildings (plaintiffs’ own 68 private residences which have not been found to be in inferior condition or improperly maintained) appears to be linked to the project for the reason that a larger area than the vacant land is needed for the proposed industrial park, rather than that it is an integral part of an “ intangibly ’ ’ blighted area. However that may be in regard to this particular project, no such limitation is imposed by the statute itself whose constitutionality is being tested, which purports to render a finding by the governing body conclusive that an area to be condemned is “ predominantly vacant ” so as to enable almost any proportion of buildings to be condemned along with vacant land.- On the basis of indefiniteness alone it seems to me that this statute fails to meet recognized constitutional requirements (People v. Grogan, 260 N. Y. 138,145 et seq.). Although the requirement of definiteness is most frequently presented in criminal cases, it has equal application to sumptuary statutes such as this depriving persons of property in invitum.

For the reasons stated, I dissent and vote to reverse the judgment appealed from and to grant to the plaintiffs the relief demanded in the complaint.

Judges Dye, Fuld, Froessel, Burke and Foster concur with Chief Judge Desmond ; Judge Van Voorhis dissents in a separate opinion.

Judgment affirmed. 
      
       2 Nichols, Eminent Domain (3d ed., 1950), § 7.2 et seq.
      
     