
    William J. Levitt et al., Appellants, v. Incorporated Village of Sands Point et al., Respondents.
    Argued February 24, 1959;
    decided July 8, 1959.
    
      
      Ward R. Burns for appellants.
    I. Plaintiffs are not required to exhaust their administrative remedies before instituting plenary action. (Incorporated Vil. of Upper Brookville v. Faraco, 282 App. Div. 943, 307 N. Y. 642; People v. Calvar Corp., 286 N. Y. 419; Matter of Brous v. Smith, 304 N. Y. 164; Florentine v. Town of Darien, 142 Conn. 41; Matter of Otto v. Steinhilber, 282 N. Y. 71; Ulmer Park Realty Co. v. City of New York, 267 App. Div. 291; Dowsey v. Village of Kensington, 257 N. Y. 221; Municipal Gas Co. of Albany v. Public Serv. Comm., 225 N. Y. 89; Village of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123.) II. The amendment of April 27, 1954 is unconstitutional with respect to plaintiffs’ property in that it imposes an unreasonable dimensional restriction under all the facts and circumstances. (Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Standard Oil Co. v. Marysville, 279 U. S. 582; Zahn v. Board of Public Works, 274 U. S. 325; Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250, 261 N. Y. 506; 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; Baddour v. City of Long Beach, 279 N. Y. 167; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73; Dilliard v. Village of North Hills, 276 App. Div. 969.)
    
      Jackson A. Dykman, J. Oakey McKnight and Ralph W. Crolly for respondents.
    I. The ordinance is constitutional and bears a reasonable relation to the health, safety, morals and general welfare of the community. (Rodgers v. Village of Tarrytown, 
      302 N. Y. 115; Shepard v. Village of Skaneateles, 300 N. Y. 115; Wiggins v. Town of Somers, 4 N Y 2d 215; Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250, 261 N. Y. 506; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Simon v. Town of Needham, 311 Mass. 560; Franklin v. Village of Floral Park, 269 App. Div. 695, 294 N. Y. 862; Hyde v. Incorporated Vil. of Baxter Estates, 2 A D 2d 889, 3 N Y 2d 873; New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, 3 NY 2d 844.) II. In order to reverse the judgment of the Appellate Division this court must also reverse the finding of the Official Referee affirmed by the Appellate Division that “ [o]n all the proof it may not be held that the amendment restricts plaintiffs ’ property to a use for which it is not reasonably adapted ”. (Arverne Bay Gonstr. Co. v. Thatcher, 278 N. Y. 222; Kraft v. Village of Hastings-on-Hudson, 258 App. Div. 1060, 285 N. Y. 639; Franklin v. Incorporated Vil. of Floral Park, 269 App. Div. 695, 294 N. Y. 862; Dilliard v. Village of North Hills, 195 Misc. 875, 276 App. Div. 969; Franmor Realty Corp. v. Village of Old Westbury, 280 App. Div. 945, 304 N. Y. 843.) III. Zoning to be effective must not be static. IV. The dimensional restriction is valid. V. Plaintiffs were required to exhaust their administrative remedy provided by the ordinance. (People v. Calvar Corp., 286 N. Y. 419; New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, 3 N Y 2d 844; Incorporated Vil. of Upper Brookville v. Faraco, 282 App. Div. 943, 307 N. Y. 642; Matter of Great Neck Community School v. Dick, 3 A D 2d 664; Baddour v. City of Long Beach, 279 N. Y. 167; Matter of Otto v. Steinhilber, 282 N. Y. 71; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Gignoux v. Village of Kings Point, 199 Misc. 485.)
    
      Philip Huntington for Incorporated Village of Lattingtown and others, amici curiae, in support of respondents’ position.
    I. The ordinance is constitutional and bears a reasonable relation to the health, safety and general welfare of the Village of Sands Point. (Fischer v. Bedminster Twp., 11 N. J. 194; Franmor Realty Corp. v. Village of Old Westbury, 280 App. Div. 945; Dilliard v. Village of North Hills, 276 App. Div. 969; Shepard v. Village of Skaneateles, 300 N. Y. 115; New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, 3 N Y 2d 844; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 344 U. S. 802.) II. The ordinance as amended does not restrict plaintiffs’ property to a use for which it is not reasonably adapted. (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Franklin v. Incorporated Vil. of Floral Park, 269 App. Div. 695, 294 N. Y. 862; Kraft v. Village of Hastings-on-Hudson, 258 App. Div. 1060, 285 N. Y. 639; Baddour v. City of Long Beach, 279 N. Y. 167.) III. The Official Referee erred in holding that there are other and different tests of validity to be applied to amendments to zoning ordinances from those applied to original enactments. (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Shepard v. Village of Skaneateles, 300 N. Y. 115; Penataquit Assn. v. Furman, 283 App. Div. 875; Franmor Realty Corp. v. Village of Old Westbury, 280 App. Div. 945, 304 N. Y. 843; Gignoux v. Village of Kings Point, 199 Misc. 485.) IV. The court has no power to order municipal officials to perform any legislative acts; and has no power in this action for a declaratory judgment to order municipal officials to issue a permit, under the provisions of the zoning ordinance of defendant village. (Boord v. Wallander, 195 Misc. 557; Boord v. O’Brien, 277 App. Div. 253, 302 N. Y. 890; People v. Friedman, 302 N. Y. 75; Matter of Leone v. Brewer, 259 N. Y. 386.)
   Feobssbl, J.

The enactment of a two-acre minimum lot area requirement is, in an appropriate case, a legitimate exercise of the police power (Village Law, § 89, subd. 30; §§ 175, .177; Dilliard v. Village of North Hills, 276 App. Div., 969; Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, appeal dismissed 344 U. S. 802; Senior v. Zoning Comm. of Town of New Canaan, 146 Conn. 531, decided April Term, 1959; Fischer v. Township of Bedminster, 11 N. J. 194; see Franmor Realty Corp. v. Village of Old Westbury, 280 App. Div. 945, motion for leave to appeal dismissed 304 N. Y. 843; Elbert v. Village of North Hills, 262 App. Div. 856). The evidence in this record as to the character and location of the Village of Sands Point, with its isolated geographical position in a fringe area on the northern tip of a peninsula, and of the Residence “ A ” District therein, consisting of rolling and partly wooded land in an attractive rural residential community, supports the ■finding of the Appellate Division on the factual issue of the reasonableness of the zoning ordinance.

Even if the validity of the regulation were “ fairly debatable ”, as plaintiffs’ expert at the trial conceded it was, the legislative judgment must be allowed to control ” (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 388). The presumption of validity is not changed by the fact that an amendment to a zoning ordinance is here involved (Rodgers v. Village of Tarrytown, 302 N. Y. 115, 121-123; Shepard v. Village of Skaneateles, 300 N. Y. 115,117-118).

Considering the zoning ordinance in its particular application to plaintiffs’ property, we agree with the finding of the learned Referee, affirmed by the Appellate Division, that the ordinance does not preclude the use of plaintiffs’ property for any purpose for which it is reasonably adapted (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 226). Mere lessening of profits as here, or even economic loss to an affected property owner, does not render a zoning ordinance confiscatory and thus unconstitutional in its application (Matter of Wulfsohn v. Burden, 241 N. Y. 288, 302).

We disagree, however, with the opinion of the Appellate Division insofar as it held that plaintiffs were precluded from raising the issue of confiscation by their failure to apply for a variance under the provisions of the ordinance. The theory of this action is that plaintiffs are entitled as a matter of right to a judgment declaring the unconstitutionality of the ordinance ; they do not ask for the relaxation of an assumedly valid regulation (Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493, 501; Dowsey v. Village of Kensington, 257 N. Y. 221, 231). Indeed, an application for a variance here, in effect to rezone 127 acres, would be futile (see Matter of Hess v. Zoning Bd. of Appeals of Vil. of Sands Point, 17 Misc 2d 22, involving an application for a variance as to 40 acres in this same village), since the Zoning Board of Appeals has no power to remake the zoning map under the guise of granting a variance (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347, 352-354 ; Dowsey v. Village of Kensington, supra, pp. 227-228).

The judgment should be affirmed, with costs.

Chief Judge Conway and Judges Desmond, Dye, Ftjld, Van Voobhis and Btjbke concur.

Judgment affirmed.  