Petition — Robert E. Kurzius, Inc. v. Incorporated Village

Office-Sup*eme Court, U.S.

8 FILED

0-1372 FEB 13 1961

we. ALON STEWAS,

IN THE

Supreme Court of the United States

OCTOBER 1980 TERM

>

ROBERT E. KURZIUS, INC., ROBERT E. KURZIUS,

ANNEMARIE KURZIUS, and ADELE S. KURZIUS,

Petitioners,

—against—

INCORPORATED VILLAGE OF UPPER BROOKVILLE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

JOHN M. ARMENTANO

Counsel for Petitioners

374 Hillside Avenue

Williston Park, N.Y. 11596

(516) 741-1111

QUESTION PRESENTED

Whether respondent's rezoning of the

Subject property so that a single family

residence may only be built on a minimum

lot size of five acres is unconstitu-

tional because: (1) it is exclusionary

in purpose and in fact; and (2) it is an

impermissible exercise of the police

power, even though it is allegedly in

furtherance of preservation of open

space.

The Court of Appeals of the State of

New York, relying upon Agins v. City of

Tiburon, U.S. , 100 S. Ct. 2138,

held that respondent's five acre minimum

lot zoning was constitutional. This

holding is contrary to: (1) the

determinations of the Supreme Court of

Pennsylvania which held that three and

four acre minimum lot Zoning is

unconstitutional; (2) the determination

of the Supreme Court of Virginia which

held that two acre minimum lot zoning was

unconstitutional; and (3) strong dicta of

the Maryland Court of Appeals and the

United States Court of Appeals for the

First Circuit which seriously questioned

the validity as a permanent zone of five

acre and six acre minimum lot Zoning

respectively.

Accordingly, it is submitted that

this Court should grant certiorari in

order to settle the conflict between the

New York Court of Appeals and: (1) the

aforesaid State Courts of last resort

(Pennsylvania, Virginia, Maryland) and

(2) the United States Court of Appeals

for the First Circuit.

(ii)

TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES (iv)

QUESTIONS PRESENTED (i)

OPINION BELOW. . « © © e © © @© @ @ 1

JURISDICTION. o . ° . o o ° os o ° l

CONSTITUTIONAL PROVISIONS INVOLVED. . 2

FACTS DEVELOPED AT TRIAL. . .«. -« «© « « 4

POINT I . oc o e ° ° . . ° . 7 e e e ° 9

THE APPELLATE DIVISION PROPERLY

APPLIED THE TRADITIONAL SUB-

STANTIVE DUE PROCESS ANALYSIS IN

STRIKING DOWN THE FIVE-ACRE ZONING.

it) dS a ieee ie ek ee oe ee a ee ee ee eS

THE FIVE ACRE MINIMUM AREA

REQUIREMENT IS UNCONSTITUTIONAL

BECAUSE IT IS, IN PURPOSE AND

EFFECT, A COMMUNITY ATTEMPT AT

IMMUNIZATION AND EXCLUSION.

at) aw ee ae ger ae oe oor ae cae ae

THE FIVE ACRE MINIMUM AREA

REQUIREMENT IN THE UPPER

BROOKVILLE ZONING ORDINANCE

IS UNCONSTITUTIONAL BECAUSE IT

IS NEITHER A NECESSARY NOR

REASONABLE RESPONSE TO THE

PURPOSES FOR WHICH A VILLAGE

MAY RESTRICT LAND USE AND IT

IS NOT ENACTED FOR A VALID

POLICE POWER PURPOSE.

° * e o bl

CONCLUSION. ° ° » . + 7 ° . . a ° ° . 51

APPENDIX

TABLE OF AUTHORITIES

Page

Constitution of the United States:

U.S.Const. Amend. 5 2

U.S.Const. Amend. 14(1) 3

Statutes:

28 U.S.C. §1257(3) 2

28 USC. §2101 2

N.Y. Village Law §7-700 et seq. 38

N.Y. Village Law §7-704 25, 28

31, 32

N.Y. Village Law §7-726 et seq. 38

Cases:

Agins v. City of Tiburon,

100 S.Ct. 2138 7, Ss &g

Appeal of Kit-Mar Builders,

Inc., 439 Pa.466, 268 A2d

765 iz, is

Board of Supervisors v. Carper,

200 Va. 653, 107 SE2d 390 9, 10.

County Commissioners of Queen

Anne's County v. Miles,

246 Md. 355, 228 A2d 450 oe

(iv)

Euclid v. Ambler, 272 U.S. 365 49

Golden v. Planning Board of

Town of Ramapo, 30 NY2d 359,

334 NYS2d 138 49

Kurzius v. Inc. Village of

Upper Brookville, 51 NY2d 338,

67 AD2d 70, 414 NYS2d 579 ky Wa Wa

8, 25,

29

Levitt v. Inc. Village of

Sands Pt., 6 NY2d 269 8, 19

National Land and Investment

Co. ve. Kohn, 419 Pa.504,

215 A2d 597 | me i

Steel hill Dev. Inc. v. Town

of Sanbornton, 469 F2d 956

(lst Cir. 1972) 14, 16

Village of Belle Terre v.

Boraas, 416 U.S. l 8

(Vv)

SUPREME COURT OF THE UNITED STATES

ais Pe Taae eins tae Gai sae: ak aU ie ee «Oe xX

ROBERT E. KURZIUS, INC., ROBERT E.

KURZIUS, ANNEMARIE KURZIUS, and

ADELE S. KURZIUS,

Petitioners,

-against-:

INCORPORATED VILLAGE OF UPPER

BROOKVILLE, :

Respondent.

UN Re a a an a ie ae es a iad Nae. aur \ ale X

OPINION BELOW

The Court of Appeals of the State of

New York rendered an opinion which is

reported at 51 NY2d 338, attached hereto

as Appendix (p. A-l - A-10)

JURISDICTION

1. The remittitur of the Court of

Appeals of the State of New York which is

sought to be reviewed by this Court was

made and entered in the office of the

clerk of that Court on November 20, 1980

and the opinion of said Court is attached

as an Appendix (P. A-25).

2. No application has been made to

said Court for a rehearing or reargument

and no extension of time within which to

petition for certiorari has been

granted.

3. Jurisdiction of the United States

Supreme Court to review the order of the

New York Court of Appeals is confered by

28 U.S.C. $1257, subdiv. 3, and 28 U.S.C.

§2101.

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT 5

No person ... Shall be deprived of

life, liberty, or property, without due

process of law; nor shall private

property be taken without just

compensation.

AMENDMENT 14 (1)

No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection or the iaws.

FACTS DEVELOPED AT TRIAL

In 1960 the rulers of the Incorpo-

rated Village of Upper Brookville

("Village") determined that it was

necessary to rezone portions of the

Village, all of which had been zoned for

two acre development since the incorpora-

tion of the Village in 1932 (46).* To

accomplish this, they hired a pianner,

Francis Dodd McHugh, to prepare a compre-

hensive plan pursuant to which the zoning

ordinance would be developed (1193).

At numerous private meetings with

the major landowners, Mr. McHugh was told

how these owners desired to channel the

future of the Village (1342). By

October, 1960, he had incorporated these

aims into the "Comprehensive Master Plan"

* Unless otherwise indicated, numbers in

parentheses refer to pages in the

Record on Appeal before the New York

Court of Appeals.

(1369), which recommend the establish-

ment of five acre and two acre zones in

the Village (Ex. 41). In December, 1960

the new ordinance was passed, officially

establishing the two zones (Ex. 24).

In 1968, the corporate plaintiff

acquired 60 acres of land in the Village,

10 acres of which were zoned for two acre

development and 50 acres for five acre

development (92, 100). It obtained

approval for subdivision of the entire

parcel (102). Between 1969 and 1975, all

of the two acre lots were sold and homes

were constructed thereon (117).

To this date, none of the five acre

lots has been sold. However, two of

those lots are occupied by homes, one in

which plaintiff Robert E. Kurzius and his

family reside, and the other in which his

mother, plaintiff Adele Kurzius, resides

(110-111).

The plaintiffs challenge the

rezoning from two acres to five acres on

5

the grounds, among others, that, as

applied to their property, it was not a

reasonable response to any legitimate

concerns of the Village, and that the

five acre zoning itself was invalid

(29a).

After a non-jury trial in Supreme

Court, Nassau County, the Trial Court

upheld the ordinance (9a) and declared

that the zoning was constitutional --

that the plaintiffs had not proven that

five acre zoning was unreasonable.

The Appellate Division, the inter-

mediate New York Appellate Court,

unanimously reversed. It did so by

focusing on only one ground: the

constitutional validity of the five-acre

minimum lot zoning of the property (67

AD2d 71, 414 NYS2d 574, Appendix, p.A-ll).

After extensive discussion, the Appellate

Division unanimously concluded:

"The record demonstrates beyond

peradventure of doubt that the

leaders of the village, after

consulting with some of the large

landowners, decided to use their

zoning power to preserve the

village as a citadel of

privilege. Thus their zoning

power was not being used as a

proper exercise of the police

power to serve the general

welfare but rather to stop the

march of progress and to preserve

special benefits for the

privileged group of large

landowners which consists mainly

of present residents of the

village." (67 AD2d at 81, Appen-

dix, p. A-22).

The New York Court of Appeals

unanimously reversed and reinstated the

judgment of the Trial Court (51 NY2d

338, Appendix, p. A-1). In arriving at

its conclusior reversing the Appellate

Division, the Court of Appeals placed

controlling reliance upon the decision of

this Court in Agins v. City of Tiburon,

~~. vese _, 100 8.Ct. 32138. In this

regard the Court of Appeals stated:

"Although some courts have

assertedly found multi-acre zoning

7

to be per se exclusionary and thus

invalid (Developments in the Law -

Zoning, 91 Harv. L. Rev. 1427,

1641), we do not so hold because

»f what we perceive to be

legitimate purposes of such

zoning." (See Agins v. City of

Tiburon, U.S. _—-100 S.Ct. 2138,

Supra; Levitt v. Incorporated

Village of Sands Point, 6 NY2d 269).

In regard to a related question, the

Supreme Court has noted that '[a]

quiet place where yards are wide,

people few, and motor vehicles

restricted are legitimate guidelines

in a land-use project addressed to

family needs'. (Village of Belle

Terre v. Boraas, 416 U.S. L, @)-

Although environmental factors may

justify large lot zoning, we do not

hold that this type of zoning is

permissible without qualification,

because minimum lot requirements may

involve exclusionary practices." 51

NY2d 346, Appendix, p.A-9Q.

POINT I

THE APPELLATE DIVISION PROPERLY

APPLIED THE TRADITIONAL SUBSTANTIVE

DUE PROCESS ANALYSIS IN STRIKING

DOWN THE FIVE-ACRE ZONING.

As early as 1959, the Virginia

Supreme Court struck down an attempt by

the County of Fairfax to channel popula-

tion growth into one segment of the

county by imposing a two acre minimum

zone in another segment thereof. Board

of Supervisors v. Carper, 200 Va. 653,

107 SE2d 390. The County had argued that

the up-zoning was necessary for environ-

mental reasons, i.e., to prevent an

exhaustion of ground water supplies and

depletion of other natural resources.

The Virginia Supreme Court, noting that

zoning ordinances to be valid must pro-

mote the public health, safety, prosper-

ity, morals and public welfare, found the

purported justifications for the upzon-

ing unwarranted and with "no relation to

the health, safety, morals or general

welfare of the owners of residents of the

area so zoned." 107 SE2d at 397.

Six years later the Pennsylvania

Supreme Court struck down a iour acre

minimum zone in National Land and

Investment Company v. Kohn, 419 Pa. 504,

215 A2d 597. The Court applied tradi-

tional police power analysis to the

Town's purported justifications for the

upzoning, namely sanitation, drainage,

inadequate roads with attendant diffi-

culty of providing adequate fire protec-

tion, and preservation of the "cnaracter"

of the area. The Court found the

drainage justification "vague and

unconvincing" and the traffic rationale

"based upon possible future conditions."

215 A2d at 609, 610. As to preservation

10

of the "character" of the community, t

Court stated:

And,

"If the preservation of open

Spaces is the township objective,

there are means by which this can

be accomplished which include

authorization for ‘cluster

zoning' or condemnation of

development rights with

compensation paid for that which

is taken. A four acre minimum

acreage requirement is not a

reasonable method by which the

Stated end can be achieved." 215

A2d at 611 (emph. suppl.)

later:

"There is no doubt that many of

the residents of this area are

highly desirous of keeping it the

way it is, preferring, quite

naturally, to look out upon land

in its natural state rather than

on other homes. These desires,

however, do not rise to the level

of public welfare. This is

purely a matter of private desire

which zoning regulations may not

be employed to effectuate." 215

A2d at 611 (emph. suppl.)

In 1967, the Maryland Court of

Appeals upheld a five acre minimum lot

size in County Commissioner's of Queen

he

Anne's County v. Miles, 228 A2d 450,

11

246

Md. 355. In doing so, however, the court

specifically distinguished both Carper,

Supra and Kohn, supra, in that the five

acre zone before it amounted to only 6.7

percent of the county whereas in Carper

66.6 percent of the county was burdened

with the minimum lot requirement and in

Kohn the four acre minimum applied to 30

percent of the town. 228 A2d at 458.

For comparison purposes, in the case at

bar the respondent Village of Upper

Brookville has placed within its five

acre zone 46 percent of its total land

area (Ex. I, pp. 27-28).

In 1970, the Supreme Court of

Pennsylvania had occasion to reconsider

its decision in National Land, Supra, in

Appeal of Kit-Mar Builders, Inc., 439 Pa.

466, 268 A2d 765. There, the

constitutional validity of two and three

acre minimum lot requirements was under

review. Concord Township's basis for

this zoning was a purported concern for

sewerage disposal. The Court applied

National Land as follows:

"As we pointed out in National

Land, there are obvious

advantages to the residents of a

community in having houses built

on four - or three - acre lots.

However, minimum lot sizes of the

magnitude required by this

ordinance are a great deal larger

than what should be considered as

a necessary size for the building

of a house, [footnote omitted]

and are therefore not the proper

subjects of public regulations.

As a matter of fact, a house can

fit quite comfortably on a one

acre lot without being the least

bit cramped. [footnote omitted]

Absent some extraordinary

justification, a zoning ordinance

with minimum lot sizes such as

those in this case is completely

unreasonable." 268 A2d at 767

(Emph. suppl.).

Turning to that purported justification,

the Court branded the Township's alleged

concern with adequate sewerage as "pat-

ently ridiculous," 268 A2d at 769, and

13

invalidated both the two and three acre

minima.

In 1972, the United States Court of

Appeals for the First Circuit decided

Steel Hill Development, Inc. v. Town of

Sanbornton, 469 F.2d 956 (lst Cir. 1972).

There, the issue was the propriety of a

Six acre minimum lot requirement. The

federal court upheld the zoning but ona

very limited basis. The area in question

was a major recreational and resort area

in New Hampshire with convenient access

to most New Hampshire ski areas. The

rationale for the large lot zoning by the

town was that the plaintiffs' proposed

cluster development would cause severe

problems of pollution, sewage disposal,

drainage and erosion. The court

carefully read the conflicting trial

testimony of the various experts and

concluded that the finding of the

14

District Court was not clearly erroneous.

Nevertheless, the court reached this

conclusion most reluctantly and warned as

follows:

"Yet, though it may be proper for

Sanbornton to consider the

foregoing factors, we think the

town has done so in a most crude

manner. We are disturbed by the

admission here that there was

never any professional or

Scientific study made as to why

Six, rather than four or eight,

acres was reasonable to protect

the values cherished by the

people of Sanbornton. On_

reviewing the record, we have

serious worries whether the basic

motivation of the town meeting

was not simply to keep outsiders,

provided they wished to come in

quantity, out of the town. We

cannot think that expansion of

population, even a very

Substantial one, seasonal or

permanent, is by itself a

legitimate basis for permissible

objection. Were we to adjudicate

this as a restriction for all

time, and were the evidence of

pressure from land-deprived and

land-seeking outsiders more real,

we might well come to a different

conclusion. Where there is

natural population growth it has

to go somewhere, unwelcome as it

may be, and in that case we do

15

not think it should be channeled

by the happenstance of what town

gets its veto in first. But, at

this time of uncertainty as to

the right balance between

ecological and population

pressures, we cannot help but

feel that the town's ordinance,

which severly restricts

development, may properly stand

for the present as a legitimate

stop-gap measure." 469 F. 2d at

962. (Emph. suppl.).

The court concluded by stating:

"Thus, while we affirm the

District Court's determination at

the present time, we recognize

that this is a very special case

which cannot be read as

evidencing a general approval of

6-acre zoning and that this

requirement may well not

indefinitely stand without more

homework by the concerned

parties." 469 F. 2d at 9€2 (emph.

Suppl.)

Regardless of whether the minimum

lot areas in each of the above cases were

invalidated or seriously questioned, the

courts took similar approaches. They

compared the purported justifications for

the zoning advanced by the municipalities

16

to the purposes for which the local

enabling statute permitted land use

restrictions to be imposed. They then

determined whether the restrictions

imposed were a reasonable response to

those purported concerns. In all of the

cases, the municipality had put forth

concerns as to sewerage disposal,

adequacy of roads, fire protection, and

the like.

In the case at bar, what concerns has

the Village of Upper Brookville ex-

pressed? Not one single objective other

than a desire to keep the Village rural

and "exactly the way it is." [Ex. 32,

p. 4] Nor could it advance anything more

Significant than that because, based on

the trial record, the Village simply did

not have any justifiable concern upon

which to predicate its five acre minimum

zoning requirement.

17

Based on the trial record, the

Appellate Division was correct in

concluding that the Village "Zoning power

was not being used as a proper exercise

of the police power to serve the general

welfare but rather to stop the march of

progress and to preserve special benefits

for the privileged group of large

landowners which consists mainly of

present residents of the village." (67

AD2d at p. 81, Appendix, p. A-22). Far

from acting as a “super legislature", the

Appellate Division found that there

existed here no legal nexus between any

legitimate Village concern and the

imposition of the five-acre zoning

requirement. Thus, that Court did not

substitute its judgment for that of the

Board of Trustees of the Village of Upper

Brookville. Rather, it applied to the

zoning under review the substantive due

process analysis mandated by this Court.

18

Accordingly, the Appellate Division

correctly found that zoning invalid.

The Court of Appeals, however,

specifically rejected the non-New York

decisions invalidating large lot zoning,

discussed above,

"because of what we perceive to

be the legitimate purpose of such

zoning" (see, Agins v. City of

Tiburon, US __, 100 S.Ct.

2138, supra, Levitt v.

Incorporated Village of Sands

Point, 6 NY2d 269) 51 NY2d at

346, Appendix, p. A-9.

Accordingly, the New York Court of

Appeals has relied upon this Court's

decision in Agins to uphold large lot

zoning which has been invalidated by the

highest Courts of sister states and

seriously questioned by the First Circuit

Court of Appeals and the Maryland Court

of Appeals. In Agins this Court was

concerned with a single five acre parcel

on which appellant therein potentially

could have build five homes, i.e., one

19

acre zoning. It is submitted that the

Court of Appeals misread this Court's

decision in Agins when it was employed to

justify five acre minimum zoning of 46

percent of a municipality on the North

Shore of Long Island.

Therefore, certiorari should be

granted in order to determine whether the

five acre minimum lot zoning of the

Subject property is unconstitutional as

an unreasonable use of the police power,

and whether this Court's decision in

Agins insulates large lot zoning from

constitutional scrutiny, irrespective of

area, provided the alleged purpose is the

preservation of open space.

POINT II

THE FIVE ACRE MINIMUM AREA

REQUIREMENT ILS UNCONSTITUTIONAL

BECAUSE IT IS, IN PURPOSE AND

EFFECT, A COMMUNITY ATTEMPT AT

IMMUNIZATION AND EXCLUSION

The evidence demonstrates not only

an abuse of the police power, but also an

attempt by the Village to impose the

minimum lot size so as to keep the

Village "the way it is", a euphemism for

excluding any meaningful population

influx.

The relationship of minimum lot area

requirements to population growth was

well known to the Village at the time the

ordinance revisions were being discussed

in 1960. The Village Planner, Mr.

McHugh, testified that, were the entire

Village to remain at the pre-1960 two

acre zoning classification, the

21

Saturation population would be 3,500.

(1199) Yet, in an undated letter to the

Village residents entitled "Area

Development Plan", it was disclosed that

merely by establishing an additional five

acre zone, the anticipated ultimate

population would be reduced to

approximately 1,850 persons. (Ex. 6 )

Thus, even under the two acre/five acre

zoning scheme, (the least drastic of the

up-zZoning proposals), the Village had

achieved a 48% decrease in anticipated

maximum population. The record makes

clear, then, the purpose of the five acre

restriction: population exclusion.

That the Village achieved this goal

in practice is borne out by the 1970

census data introduced by the plaintiffs

at trial (Ex. 34). The following table

depicts that data in conjunction with the

22

zoning classifications of the nearby

villages, of which classifications the

Trial Court below took judicial notice.

(832)

Village Percentage of Residential

Grownth Since 1960 Zoning

Mill Neck 40.1 5S acre, 3

acre, 8,000

sq. ft.

Matinecock 2el oS acre,

2 acre,

15,000 sq.

ft.,10,000

sq. ft.

Upper Brookville 13.1 acre,

acre

Old Brookville 58.5 acre,

acre

re dO dO Oo

Brookville 118.8 2 acre

Muttontown 64.5 2 acre, l

acre, 1/2

acre

Old Westbury 56.2 2 acre,

l acre,

8,000 sq.

+e

It is expecially interesting to note that

23

a

the smallest percentage growths occurred

in Matinecock, Upper Brookville, and Mill

Neck, in that order, the only 5 acre Zoned

villages in Nassau County (832). Needless

to say, the vast bulk of the land in these

Villages is zoned five-acre minimum.

The impact of the five-acre area

requirement upon Upper Brookville housing

Starts was also graphically illustrated

at trial: between 1961 and 1976, only |

seven (7) houses (including the two

Kurzius homes) were built on five acre

lots in the Upper’ Brookville five acre

zone (539) and there have been no five

acre subdivisions approved (other than

the Kurzius') in any other Long Island

village with a five acre zone. (539)

In strenuously attempting to avoid

the impact of the above, the Village

urges that the zoning ordinance finally

adopted was hardly designed to create a

24

"citadel of privilege", a characteriza-

tion established by the Appellate

Division (67 AD2d 81, Appendix, p. A-22).

Were that the true intent. the Villiage

argued in the Court of Appeals, "the

minimum lot size might have been fixed at

One of the larger alternatives which were

considered and rejected." (Appellants'

Brief in Court of Appeals at p. 17)

Yet the record unmistakably dis-

closes an intent by the Village fathers

to mandate the largest minimum lot size

possible that would withstand judicial

scrutiny ie order to maintain the status

quo for reasons unconnected with the

purposes of zoning (Village Law, §7-704).

(704, 1348) Indeed, from McHugh's very

first meeting with the Board of Trustees,

it became clear that at least three of

the trustees had misgivings as to whether

a 20-acre minimum lot size could survive

25

a court test. (704, 705) The larger lot

zoning proposals, moreover, were later

labelled "too ambitious" by several of

the trustees. (1348)

By June, 1960, the real purpose

behind the entire up-zoning was made

abundantly clear by Mr. McHugh in his

report to the trustees:

"Tt appears that Upper Brookville

and its neighboring villages will

be subject to increasing

pressures for more intensive land

utilization and development in

the future. Inasmuch as their

general character and outlook are

Similar, the six villages

[Matinecock, Mill Neck, Old

Brookville, Brookville,

Muttontown and Upper Brookville]

would be well advised to join

forces in preparing an ‘area

plan' and in exercising related

controls to protect themselves."

(6/3/60 report, p. 4, emph.

suppl.)

Despite the obvious purpose of the

substantial increase in the area

requirements as aforesaid, the Village

made every effort to redact the June 1960

26

plan so as to expunge therefrom all

references to this plan which have any

relationship to limiting the population

of the Village. In a three week period

between September 13, 1960 and October

11, 1960, the Village, not its planner,

took great pains to carefully eliminate

all such references (1375-1388).

Several specific illustrations of

these changes are as follows:

(a) On page 22 of Exhibit "5",

subparagraph "c" of paragraph "B-2" was

amended in the final version so as to

eliminate all reference to population

growth as an element of planning and to

relate such growth to "general economic

conditions".

(b) Again on page 22 of

Exhibit "5", paragraph "C.5" was elimi-

nated in its entirety in Exhibit "I".

This sentence, while innocuous in and of

27

itself, assumes greater significance when

read with other expressions of intent

which have been previously referred to

herein and those specifically deleted

after careful redaction by Village

officials and not the planner.

(c) On page 24 of Exhibit "5"

in the opening paragraph of the section

entitled "Major Land Uses", the language

at the end of the second sentence "and it

Suggests methods of preventing undesir-

able forms of growth" was deleted from

the final plan dated October 11, 1960

CBee “Ide

In summary, the record reveals a

village in 1960 acutely aware of the

relationship between large lot zoning and

population growth. It reveals a village

unalterably dedicated to retaining the

Status quo, unconnected with any purpose

of zoning (Village Law, §7-704) by

28

imposing the highest possible minimum

area standard that would withstand

judicial scrutiny. It reveals a village

concocting a "Comprehensive Plan" at the

behest of the major landowners, a plan

amounting to no more than an apologia for

the desires of those owners. It reveals

a village imposing a minimum area stand-

ard for no other reason than to secure

immunization from future growth

pressures. It reveals a village which,

in fact, has succeeded in preventing any

meaningful population influx.

The Appellate Division (67 AD2d at

p. 78, Appendex, p. A-i9) correctly saw

in these machinations a reflection of the

desire of those responsible for the

ordinance

"'to be left alone by the forces

of change' and thereby to

exclude from a large part of the

village anyone who could not

afford to purchase a minimum of

29

five acres and build a home

appropriate for such a large

lot." (1443-44)

30

POINT III

THE FIVE ACRE MINIMUM AREA

REQUIREMENT IN THE UPPER

BROOKVILLE ZONING ORDINANCE

IS UNCONSTITUTIONAL BECAUSE IT

IS NEITHER A NECESSARY NOR

REASONABLE RESPONSE TO THE

PURPOSES FOR WHICH A VILLAGE

MAY RESTRICT LAND USE AND IT

IS NOT ENACTED FOR A VALID

POLICE POWER PURPOSE.

(a) The Five Acre Standard Finds No

Justification In The Village

Police Powers.

Section 7-704 of the New York

Village Law sets forth in detail the

purposes for which a municipality may

impose land use restrictions as

follows:

le lessen congestion in the streets;

y secure safety from fire, panic,

floods and other dangers;

Se promote health and general

welfare;

4. provide adequate light and air;

Se prevent overcrowding of land;

6. avoid undue concentration of

population;

7. facilitate adequate provision of

transportation, water, sewerage,

31

XW schools, parks and other public

requirements.

Section 7-704 concludes with the

admonition that such zoning regulations

"shall be made with reasonable

consideration, among other things, as to

the character of the district and its

peculiar suitability for particular uses,

and with a view to conserving the value

of buildings and encouraging the most

appropriate use of the land throughout

such municipality." The record amply

demonstrates that the Upper Brookville

ordinance cannot find justification in

any of the above seven purposes

enunciated in section 7-704. To the

contrary, that record portrays in sharp

relief the real purpose behind the

ordinance: to satisfy the desires of the

major landowners of the Village by

keeping the Village exactly the way it

32

has been over the years, and, as a

necessary corollary, to prohibit any

meaningful population influx.

The record discloses that five acre

zoning was not necessary to lessen

congestion in the streets of Upper

Brookville. Plaintiff's expert land

planner testified that even had the

Subject property been placed in the two

acre zone, the effect on traffic would

have been miniscule because a minimal

number of additional vehicle trips per

day would be generated and because

existing county roads are capable of

carrying a substantial volume of traffic

through the Village (771). Thus, not

only could any traffic increase easily be

accommodated, but also the Village road

maintenance budget would be unaffected as

the bulk of that newly generated traffic

would traverse county roads. (590, 771)

33

The recoru discloses that imposition

of a five acre zone was not necessary to

secure safety from fire, panic, flooding

and other dangers. (820) Indeed, fire

considerations would be totally

inappropriate because the Village does

not even have its own fire department,

but rather contracts with the fire

department of a neighboring community for

fire protection (822). In any event,

the defendant presented no evidence on

this issue.

Concerning police protection, the

uncontradicted expert testimony of

plaintiff's land planner was that the

construction of new homes on the subject

property, if zoned for two-acre

development, could conceivably result in

an increased number of police calls, but

this consideration was not significant

34

enough to warrant placing the property in

the five acre zone. (822)

The uncontradicted evidence revealed

that Upper Brookville itself furnishes no

services to its residents. It contracts

with outside agencies for police

services, street lighting, water and fire

protection, street maintenance, and solid

waste collection. (828, 830)

Five acre zoning was not required

for provision of adequate sewerage

disposal due to the fact that each new

unit oonstructed would be required to

have a septic tank or cesspool sufficient

to meet anticipated needs. (591-595, 826)

Moreover, uncontradicted evidence

indicated that the soils on the subject

property possess excellent leeching

capability and that existing water supply

services were more than adequate to

accommodate the eStimated population

35

increase attendant to two acre

development of the Subject 50 acre

Property. (826)

The uncontradicted evidence

established that placement of the subject

property in the five acre zone was not

necessary to prevent overcrowding,

traffic congestion, reduction of light

and air, or danger from panic. (591) In

this regard, plaintiffs presented

uncontradicted testimony indicating that

the school age population in the district

Serving the subject property was

declining. (787)

(b) The Five Acre Requirement Was

Enacted At The Behest Of The

Major Landowners For Reasons

Having Nothing To Do With

Proper Municipal Concerns.

Thus, the five acre requirement

finds absolutely no justification in the

36

Village police powers. On the contrary,

the record makes it clear that the Upper

Brookville Zoning Ordinance was developed

to preserve the interests of the then

existing large landowners in the Village

without regard to the permissable

objective of zoning. In the words of the

Village itself in a newsletter to

residents, the new zoning was designed to

keep the Village "exactly the way it is."

(Ex. 32, p. 4)

The chronology leading to the

passage of the ordinance now under review

provides ample testimony to that

objective and supports the decision of

the Apellate Division in this regard. It

is undisputed that, after his retention

in 1959, the first thing which Francis

Dodd McHugh, the author of the Plan, did

was to check with the Village rules to

determine what they sought to accomplish

37

in its Comprehensive Plan. (Ex. 38, p.

4).

Mr. McHugh's initial recommendation

was to change the two acre Zoning which

had existed since the creation of the

Village 28 years earlier, to four

districts consisting of 20 acres, ten

acres, five. acres and two acres (1341).

By the November 30, 1959 meeting of the

Planning Board,* however, the Village had

grown fearful of such large lot zoning

because of its Susceptibility to legal

Challenge (706). In addition the

S|

Trustees** felt the need for more

* The Village Planning Board, in New

York, functions in an advisory

capacity in connection with

rezonings. (Village Law, Sec.

7-726 et seq.

** The Village Board of Trustees, in New

York, functions ina legislative

capacity in rezonings when it

actually passes a local law or

ordinance rezoning the property.

(Village Law, Sec. 7-700 et seq.)

38

guidance from the large landowners in

the Village (706). The official minutes

of that meeting of the Board of Trustees,

held in the Mayor's home, reflect these

concerns as follows:

(1)

(2)

Mr. McHugh stated that he

would be glad to answer any

questions pertaining to the

progress made to date and to

think of the studies and map

material and memoranda which

has been submitted to the

Village authorities to date

[sic]. (704)

Trustee Seaman expressed

some misgivings as toa

20-acre minimum residential

unit surviving a court test.

Mr. Miller and Mr. Wickham

Shared this doubt but

expressed themselves as

being open-minded and in

need of further argument

before reaching final

conclusions." (704) (emph.

suppl)

Mr. Ault (the then chairman

of the Planning Board) and

Mayor Edey "stressed the

importance of consulting the

large landowners to give

them opportunity to express

their views and position on

39

any such proposals." (705)

emph. suppl.)

The minutes of that November 30,

1959 meeting further state:

"Mr. Miller and the Village

Attorney pointed out that the

same objectives of five, ten or

twenty-acre residential unit

minimums could be achieved by the

larger landowners entering into a

declaration of restrictions

recordable in the office of the

Clerk of Nassau County and

binding upon the land and all

future owners thereof for a term

of years. It was pointed out

that there were essentially nine

landowners in the larger estate

category of which five were

completely of this character and

four partly of this character.

There was general discussion

regarding the relative advantages

of five, ten, and twenty-acre

minimums, and the practical and

legal effect of each and the

possibility of their surviving a

court test. (705) (emph.

Suppl.)

Those minutes continue:

"After further general discussion

it was decided that a committee

of Village authorities be authorized

to discuss with the larger

landowners the wisdom of

40

a master plan and zoning which would

establish larger residential units for

residential use and to discuss with

them the possibility of attaining

these objectives by the recording of an

appropriate declaration of covenants and

restrictions." (706) (emph. suppl.).

Thus, it is demonstrated by means of

official Village records that Francis

Dodd McHugh was not retained by the

Village for the purpose of making use of

his expertise as a planner to develop an

Objective Comprehensive Plan. Mr. McHugh

was, in fact, retained as a mere

Scrivener to record the desires of the

major landowners in a document to be

entitled "Comprehensive Plan".

Indeed, the very procedure adopted

by Mr. McHugh stands in stark contrast to

the procedure described by Harold J.

Letson, a highly qualified professional

planner (716) who testified as to his

role in the preparation of a

41

comprehensive master plan for the entire

Town of Huntington, Long Island. In

describing his approach to this task,

Letson stated:

"Well, in my own case, and that

is to say in the case of

Huntington, the consultant was

told to prepare the analyses and

the recommendation totally

independently. We did that and

we prepared our findings for the

township in a series of

preliminary reports which were in

good form and bound, finished

documents to all intents and

purposes, and that series of

reports contained the independent

recommendations and analyses of

the consultant. They were

submitted to a citizen's advisory

committee which then did its own

independent analysis, the two

efforts resulting in a final plan

which was ultimately adopted by

the Town of Huntington Planning

Board." (718, emph. suppl)

Thus, Letson was told to utilize his

independent professional expertise to

develop a land use plan for the Town of

Huntington. His independent findings and

recommendations were then made the focus

of further inguiry and discussion.

42

In contrast, Mr. McHugh had a

totally different function: to find out

how the large landowners wanted the

Village to develop (or not develop) and

implement that objective in a "master

plan". Thus, McHugh's effort was doomed

from the beginning to be nothing more

than an apologia for existing patterns of

development.

The extent of McHugh's consultations

with large landowners was detailed by him

on cross-examination:

"Q. Did you ever discuss your

proposals with large land

owners?

A. I went. The answer is yes.

Q. How many large land owners did

you talk to?

A. Just a minute, please. My

recollection is that these were

very informal meetings with the

people at their homes and I

went with the mayor and usually

Mr. Ault to describe the

technical aspects of the things

we were Studying, and one of

those people was Mr. Arthur

43

Dean who owns considerable

acreage up there adjacent to

the Coe estate, the Davidsons

who own the property that is

now the Miller Club, Mr. Sam

Mitchel who owned considerable

acreage most of which he has

now given to the Nature

Conservancy, and that is as far

as I can remember.

Q. Did you have more than one

meeting with these people?

A. Each of the gentlemen was

separately met at his own house

Which was arranged by the mayor

or the chairman of the Planning

Board. These were not anything

more than informal

presentations of ideas and the

exchange of information.

Q. How many of such meetings did

you have with each of these

gentlemen?

A. One." (1342-3, emph.

Suppl.)

After the aforesaid individual

meetings with the large landowners, Mr.

McHugh presented a new proposal to the

Village on March 13, 1960, in which the

Village was divided into two, five and

eight acre minima, rather than the two,

44

five and twenty, or two, five and ten

acre zones that had originally been

Proposed (707).

In May, 1960, the Village dispatched

a letter to all residents notifying them

of the latest proposal for the three

zoning classifications (Ex. 38). By June

3, 1960, Mr. McHugh's efforts had been

compiled into a proposed Comprehensive

Plan, essentially reflecting the terms of

the May, 1960 letter to residents and

providing for three zones of two acres,

five acres and eight acres. (Ex. 6)

At the July 13, 1960 Planning Board

meeting, however, it became apparent that

certain influential landowners were not

satisfied with this plan (1226). At that

meeting, representatives of Messrs. Grace

and Torr, large landowners in the

Village, objected to the inclusion of

their properties within the proposed

45

ae

a

five-acre zone on the grounds that their

properties were surrounded on both sides

by property to be placed in the proposed

two-acre zone (1226-1227). They, too,

felt their lands should be placed in the

two-acre zone (1226-1227). Accordingly,

Succumbing to their wishes, the Planning

Board agreed to recommend to the Board of

Trustees that their two properties be

reclassified in the two-acre zone (810).

The Trustees dutifully complied with the

wishes of Messrs. Torr and Grace and

their properties were removed from the

proposed five-acre designation and placed

into the two-acre zone (Ex. 7).

By October, 1960, the Village had

again changed its mind concerning the

proposed Comprehensive Plan. In an

October 10, 1960 letter to Village

residents, Mayor Edey detailed the

reasons for the Board's decision to

46

eliminate the proposed eight-acre zone

and to have only a five-acre zone and a

two-acre zone in the Village, with the

Grace and Torr properties included in the

two-acre zone but the subject property in

the five-acre zone. (Ex.41)

The elimination of the eight-acre

zone had been accomplished rapidly

indeed. Mr. McHugh testified that his

proposed Master Plan dated June 4, 1960

(containing the proposed eight-acre,

five-acre and two-acre zones) remained

unrevised after public hearings held on

August 2, 1960, August 9, 1960 and

September 13, 1960 (1374). However, by

the Planning Board meeting of October 11,

1960, an entirely new Comprehensive Plan

had been negotiated, agreed upon and

published (1375), containing only a

five-acre and a two-acre zone, with a

change in the zone of the two specific

47

properties -- Grace and Torr above

described (1376).

Thus, a Comprehensive Plan which had

been under active consideration by the

Board of Trustees since at least May,

1959 was, sometime during the 28-day

period between September 13 and October

11, 1960, changed to accommodate the

desires of Messrs. Grace and Torr and of

other large landowners (1376). Indeed,

the influence of these landowners was so

pervasive that McHugh, by his own

admission, did not even participate in

the final discussions which resulted in

the shifting of the Grace and Torr

properties from the five-acre to the two-

acre zone (1226). The negotiated divi-

Sion of the Village was complete. The

large landowners were satisfied. Mr.

McHugh formally put forth "his" Master

Plan. The Village Board implemented it

48

by enacting an appropriate zoning

ordinance.

In summary, clearly the five-acre

zone enacted by the Village in 1960 was

neither a reasonable nor necessary

response to any concern pursuant to which

& municipality may legally impose land

use restrictions. Thus, that zoning is

unconstitutional, for it is "clearly

artibrary and unreasonable, having no

substantial relation to the public

health, safety, morals, or general

welfare." Euclid v. Ambler, 272 US 365;

see also, Golden v. Planning Board of

Town of Ramapo, 30 NY2d 359, 334 NYS2d

138.

Moreover, the blatently improper

method by which the comprehensive plan

and zoning were arrived at shows that

that plan and zoning were hardly a

response to any legitimate municipal

concerns, but were, in reality, nothing

49

more than the effectuation of the desires

of the major landowners to maintain and

insure the status quo by means of large

lot area restrictions.

50

CONCLUSION

Certiorari should be granted in order to

settle the conflict between the New York

Court of Appeals and the Supreme Courts

of Pennsylvania and Virginia. Further on

a dictum level, the New York Court of

Appeals is in conflict with the Maryland

Court of Appeals and the First Circuit

Court of Appeals.

Respectfully submitted,

JOHN M. ARMENTANO

Counsel for Petitioner

374 Hillside Avenue

Williston Park, New York

11596

(516) 741-1111

51

APPENDIX

338 51 NEW YORK REPORTS, 2d SERIES

Statement of Case

RoBerT E. Kurzius, Inc., et al., Respondents, v INCORPORATED

VILLAGE OF Upper BROOKVILLE, Appellant.

Argued October 6, 1980; decided November 20, 1980

SUMMARY

APPEAL from an order of the Appellate Division of the

Supreme Court in the Second Judicial Department, entered

March 26, 1979, which (1) reversed, on the law and the facts, a

judgment of the Supreme Court at Special Term (DouG.as F.

Youna, J.), entered in Nassau County after a nonjury trial,

declaring valid and constitutional that part of a zoning ordi-

nance which created a five-acre minimum lot requirement in

certain areas of the Incorporated Village of Upper Brookville

which are zoned for residential use, and (2) declared that

portion of the zoning ordinance unconstitutional as an unrea-

sonable and improper exercise of the police power.

In an action for a declaratory judgment, plaintiffs attacked

a zoning ordinance of the Village of Upper Brookville which

created, in certain areas of the village, minimum lot require-

ments of five acres. The issue on appeal was whether the

ordinance was constitutionally void and also invalid because

not enacted in compliance with section 7-704 of the Village

Law.

The Court of Appeals reversed the order of the Appellate

Division and reinstated the judgment of the Supreme Court,

holding, in an opinion by Judge GABRIELLI, that the ordinance

was constitutionally and statutorily valid, since there was no

proof that regional needs were ignored in formulating the

ordinance or of a discriminatory purpose, and no proof that

the ordinance has excluded or will exclude persons having a

need for housing within the municipality or within the region.

Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brook-

ville, 67 AD2d 70, reversed.

HEADNOTES

Municipal Corporations — Zoning — Large-Lot Zoning

1. A zoning ordinance of the defendant village which creates, in certain

areas of the village, minimum lot requirements of five acres, is constitution-

ally and statutorily valid, where there was no proof of regional needs or

discriminatory purpose and no proof that the ordinance has excluded or will

exclude persons having a need for housing within the municipality or

within the region; the purpose of the ordinance was to preserve the open-

space areas of the village, which may be a legitimate goal of multiacre

KURZIUS v UPPER BROOKVILLE [51 NY2d 338] 339

Statement of Case

zoning, and plaintiffs have not demonstrated that the ordinance was not

enacted in accordance with a comprehensive master plan or that pressing

regional needs were ignored in formulating the ordinance. The ordinance

was not an unreasonable and improper exercise of the police power, or

beyond the power delegated by section 7-704 of the Village Law.

Municipal Corporations — Zoning

2. In general, the enactment of a zoning ordinance is a valid exercise of

the police power if its restrictions are not arbitrary and they bear a

substantial relation to the health, welfare and safety of the community, and

section 7-704 of the Village Law provides that zoning regulations must be

made in accordance with a comprehensive plan, and may be made only for

certain enumerated purposes, including the promotion of health and the

general welfare of the village; thus, both the constitutional and statutory

validity of a zoning ordinance depend on the facts of the particular case and

whether it is really designed to accomplish a legitimate public purpose, and

a zoning ordinance will be invalidated on both constitutional and State

statutory grounds if it was enacted with an exclusionary purpose, or it

ignores regional needs and has an unjustifiably exclusionary effect.

Municipal Corporations — Zoning — Constitutionality

3. As legislative acts, zoning ordinances carry a presumption of constitu-

tionality, which presumption is rebuttable, but unconstitutionality must be

demonstrated beyond a reasonable doubt; if the validity of the legislative

classification for zoning purposes is fairly debatable, the legislative judg-

ment must be allowed to control.

Municipal Corporations — Zoning — Large-Lot Zoning

4. There is a two-part test for determining when large-lot zoning has been -

used in an impermissible manner: first, the local board is required to

provide a properly balanced and well-ordered plan for the community; and

secondly, in enacting the zoning ordinance, consideration must be given to

regional needs and requirements. Generally, a zoning ordinance enacted for

a statutorily permitted purpose will be invalidated only if it is demonstrated

that it was enacted for an improper purpose or if it was enacted without

giving proper regard to local and regional housing needs and has an

exclusionary effect, and once an exclusionary effect coupled with a failure to

balance the local desires with housing needs has been proved, then the

burden of otherwise justifying the ordinance shifts to the defendant.

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES*

67 NY Jur, Zoning and Planning Laws §§ 21, 118, 163

CLS, Village Law § 7-704

82 Am Jur 2d, Zoning and Planning §§ 25, 96, 103

16 Am Jur TRIALS 99, Relief From Zoning Oordinance

ANNOTATION REFERENCES

Validity of zoning regulations precribing minimum area

for house lots or requiring an area proportionate to

numbe of families to be housed. 95 ALR2d 716.

340 51 NEW YORK REPORTS, 2d SERIES

Points of Counsel

Comment Note.—Exclusionary zoning. 48 ALR3d 1210

(as to minimum lot-area requirements, see § 5).

* By the Publisher's Editorial Staff.

POINTS OF COUNSEL

Joseph L. Tobin, Jr., for appellant. I. The holding of the

court below that defendant’s five-acre zoning is “exclusionary”

is neither supported by proof in the record nor by the deci-

sions of this court. (Matter of Golden v Pianning Bd. of Town

of Ramapo, 30 NY2d 359; Berenson v Town of New Castle, 38

NY2d 102.) Il. The zoning ordinance is not discriminatory as

applied to plaintiffs’ property. (Matter of Grimpel Assoc. v

Cohalan, 41 NY2d 431.) III. The zoning ordinance, as applied

to the subject property, is consonant with the comprehensive

plan. (Albright v Town of Manlius, 28 NY2d 108; Rogers v

North Amer. Philips Co., 37 Misc 2d 923, 19 AD2d 838;

Twenty-one White Plains Corp. v Village of Hastings-on-Hud-

son, 14 Misc 2d 800, 9 AD2d 934; Matter of Town of Bedford v

Village of Mount Kisco, 33 NY2d 178.) IV. The zoning ordi-

nance is not confiscatory as applied to plaintiffs’ property.

(Gates of Woodbury Co. v Town of Oyster Bay, 29 AD2d 943;

Koff v Incorporated Vil. of Flower Hill, 29 AD2d 655, affd sub

nom. Chase Manhattan Bank v Incorporated Vil. of Flower

Hill, 28 NY2d 694.)

John M. Armentano, George J. Farrell, Jr., and Robert V.

Guido for respondents. I. The five-acre minimum area require-

ment in the Upper Brookville zoning ordinance is illegal

because it is neither a necessary nor reasonable response to

the purposes for which a village may impose land use restric-

tions under the village law. II. The five-acre minimum area

requirement is unconstitutional because it is, in purpose and

effect, a community attempt at immunization and exclusion.

III. The court below properly applied the traditional substan-

tive due process analysis in striking down the five-acre zoning.

(Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269;

Westwood Forest Estates v Village of South Nyack, 23 NY2d

424; French Investing Co. v City of New York, 39 NY2d 587;

Steel Hill Dev. v Town of Sanbornton, 469 F2d 956.) IV. The

Upper Brookville ordinance is unconstitutional because it was

not enacted pursuant to a comprehensive plan as required by

section 7-704 of the Village Law. (Udell v Haas, 21 NY2d 463;

Rogers v North Amer. Philips Co., 37 Misc 2d 923, 19 AD2d

KURZIUS v UPPER BROOKVILLE [51 NY2d 338] 341

Points of Counsel

838; Twenty-one White Plains Corp. v Village of Hastings-on-

Hudson, 14 Misc 2d 800, 9 AD2d 934; Town of North Hemp-

stead v Village of North Hills, 38 NY2d 334; Matter of Town

of Bedford v Village of Mount Kisco, 33 NY2d 178.) V. The

Upper Brookville zoning ordinance as applied to the Kurzius

property is discriminatory and therefore void. VI. The rezon-

ing of plaintiffs’ property is confiscatory in that it has ren-

dered it unmarketable. (McGowan v Cohalan, 41 NY2d 434;

French Investing Co. v City of New York, 39 NY2d 587;

Williams v Town of Oyster Bay, 32 NY2d 78.) VII. As to the

contention of the amici curiae, neither the “regional develop-

ment plan” and the “north shore area plan” nor the Adiron-

dack Park Agency Act and the cases cited by amici curiae

furnish a justification for the zoning under review. (Wambat

Realty Corp. v State of New York, 41 NY2d 490; Levitt v

Incorporated Vil. of Sands Point, 6 NY2d 269.)

Gus Bauman for National Association of Home Builders and

others, amici curiae. Large-lot zoning (here, five acres) has the

demonstrable effect, if not also the purpose of so increasing

housing costs as to be exclusionary, thereby unconstitutionally

violating the police power standard of protecting the public

health, safety or general welfare. (Berenson v Town of New

Castle, 38 NY2d 102; Matter of Golden v Planning Bd. of

Town of Ramapo, 30 NY2d 359, 409 US 1003.)

William H. Mathers for Village of Cove Neck, amicus cur-

iae. I. The North Shore Area Plan (NSAP) which calls for low

density zoning is compatible with and supported by other

regional plans. II. The concept of exclusionary zoning must

only be examined within the framework of regional needs and

practical considerations. (Euclid v Ambler Co., 272 US 365;

Matter of Diocese of Rochester v Planning Bd. cf Town of

Brighton, 1 NY2d 508; Matter of Wulfsohn 7 Burden, 241 NY

288; Berenson v Town of New Castle, 38 NY2d 102.) III. Five-

acre zoning does not stop growth if it is compatible with

regional plans which direct where proper growth should take

place. (Village of Belle Terre v Boraas, 416 US 1.)

Edward N. Costikyan and Steven S. Honigman for North

Shore Area Mayors Joint Municipal Survey Committee, ami-

cus curiae. I. The ordinance accomplishes a legitimate public

purpose by preserving open space. (Levitt v Incorporated Vil.

of Sands Point, 6 NY2d 269; Matter of Golden v Planning Bad.

of Town of Ramapo, 30 NY2d 359; Village of Belle Terre v

342 51 NEW YORK REPORTS, 2d SERIES

Opinion per Gasrre.u, J.

Boraas, 416 US 1.) II. The ordinance is not exclusionary.

(Matter of Fulling v Palumbo, 21 NY2d 30; Salamar Bldrs.

Corp. v Tuttle, 29 NY2d 221; Connolly v Incorporated Vil. of

East Hills, 26 NY2d 801; Gardner v Le Boeuf, 24 Misc 2d 511,

15 AD2d 815.)

OPINION OF THE COURT

GABRIELLI, J.

[1] Plaintiffs, in this action for a declaratory judgment,

attack a zoning ordinance of the defendant Village of Upper

Brookville which creates, in certain areas of the village,

minimum lot requirements of five acres. The ordinance in

question was adopted some 20 years ago and, while plaintiffs

originally attacked the ordinance on various grounds, the

Appellate Division by its holding and the plaintiffs, in this

court by their briefs and argument, have narrowed the law

issues to the sole contentions that the ordinance is constitu-

tionally void and also invalid because not enacted in compli-

ance with section 7-704 of the Village Law. The Appellate

Division sustained plaintiffs’ claim of constitutional invalidity

and struck down the ordinance. We reverse and sustain the

ordinance. :

The Village of Upper Brookville, located on the north shore

of Long Island, enacted a zoning ordinance in 1960 which

required a minimum lot size of at least two acres in some

portions of the village, and at least five acres in other por-

tions. At that time the village contained a number of rela-

tively peaceful and rural areas. The ordinance was enacted by

the village some two months after its approval and adoption

of a comprehensive master plan involving the entire 2,737

acre area of the village. This plan was the culmination of an

18-month study conducted under the direction of Francis Dodd

McHugh, an architect and professional planner engaged by

the village. The master plan as finally adopted was the prod-

uct of intensive studies made by both the village planning

board and the board of trustees, and was subjected to and

widely discussed at several announced public hearings.

In 1968, the corporate plaintiff purchased a 60-acre tract of

land within the village. Pursuant to the provisions of the

ordinance adopted some eight years prior to plaintiffs’ pur-

chase of his acreage, 10 acres of this land were zoned for 2-

acre lot development, and the remaining land was in a zone

KURZIUS v UPPER BROOKVILLE [51 NY2d 338] 343

Opinion per GaBRIELLI, J.

requiring a minimum lot size of 5 acres. A short time later,

the corporate plaintiff received subdivision approval for five 2-

acre lots to be placed on the 10-acre parcel, and subsequently

erected and sold five houses on these lots. Plaintiffs later

commenced an action attacking the 5-acre minimum lot re-

quirement on their remaining 50 acres alleging, among other

things, that the ordinance was unconstitutional as an unrea-

sonable and improper exercise of the police power. It remains

undisputed that the subject property lies within a coherent

area characterized by estate-type development and is gener-

ally bounded by properties developed on a large lot basis.

[2] In general, the enactment of a zoning ordinance is a

valid exercise of the police power if its restrictions are not

arbitrary and they bear a substantial relation to the health,

welfare and safety of the community (Euclid v Ambler Co.,

272 US 365, 395). In New York, the Legislature has delegated

zoning power to village boards pursuant to section 7-700 of the

Village Law. Such delegation is not, of course, “coterminous

with stated police power objectives and has been considered

less inclusive traditionally” (Matter of Golden v Planning Bd.

of Town of Ramapo, 30 NY2d 359, 370, app dsmd 409 US

1003). Section 7-704 of the Village Law provides that these

zoning regulations must be made in accordance with a com-

prehensive plan, and may be made only for certain enumer-

ated purposes, including the promotion of health and the

general welfare of the village. Thus, both the constitutional

and statutory validity of a zoning ordinance depend “on the

facts of the particular case and whether it is ‘really designed

to accomplish a legitimate public purpose’ ” (Berenson v Town

of New Castle, 38 NY2d 102, 107, quoting Matter of Wulfsohn

v Burden, 241 NY 288, 299).

[1, 2] A zoning ordinance will be invalidated on both consti-

tutional and State statutory grounds if it was enacted with an

exclusionary purpose, or it ignores regional needs and has an

unjustifiably exclusionary effect (Matter of Golden v Planning

Bd. of Town of Ramapo, supra; Berenson v Town of New

Castle, supra). However, in this case, because there was insuf-

ficient and, indeed, a complete absence of proof of regional

needs or a discriminatory purpose and no proof that the

zoning ordinance in question has excluded or will exclude

persons having a need for housing within the municipality or

within the region, the issues are narrowed to the questions of

whether five-acre zoning is exclusionary per se and an imper-

344 51 NEW YORK REPORTS, 2d SERIES

Opinion per GasrRie.u, J.

missible exercise of the police power, and whether the village

acted within the ambit of section 7-704 of the Village Law.

(1, 3] As legislative acts, zoning ordinances carry a presump-

tion of constitutionality (Town of Huntington v Park Shore

Country Day Camp of Dix Hills, 47 NY2d 61, 65; Marcus

Assoc. v Town of Huntington, 45 NY2d 501, 505). We have

stated on several occasions that this presumption is rebutta-

ble, but that unconstitutionality must be demonstrated beyond

a reasonable doubt (e.g., Marcus Assoc. v Town of Huntington,

supra). This burden has not here been met. As Judge FuLp

stated in Rodgers v Village of Tarrytown (302 NY 115, 121):

“[T]he power of a village to amend its basic zoning ordinance

in such a way as reasonably to promote the general welfare

cannot be questioned. Just as clearly, decision as to how a

community shall be zoned or rezoned, as to how various

properties shall be classified or reclassified, rests with the

local legislative body; its judgment and determination will be

conclusive, beyond interference from the courts, unless shown

to be arbitrary, and the burden of establishing such arbitrari-

ness is imposed upon him who asserts it. In that connection,

we recently said (Shepard v. Village of Skaneateles, 300 N. Y.

115, 118): ‘Upon parties who attack an ordinance * * * rests

the burden of showing that the regulation assailed is not

justified under the police power of the state by any reasonable

interpretation of the facts. “If the validity of the legislative

classification for zoning purposes be fairly debatable, the

legislative judgment must be allowed to control.” (Village of

Euclid v. Ambler Realty Co., 272 U.S. 365, 388; see, also,

Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167, 169,

170; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 296-297.) ”

(2, 4] The zoning power, when properly used, is an effective

means to promote the public welfare. Large-lot zoning has also

been used to achieve this end, and minimum acre lot restric-

tions have been upheld on several occasions for varying rea-

sons (see 1 Anderson, New York Zoning Law and Practice [2d

ed], § 7.11) including, most recently, the preservation of open-

space land and the protection of a municipality’s residents

from the ill-effects of urbanization (Agins v City of Tiburon, —

US —, —, 100 S Ct 2138, 2141-2142). We realize, of course,

that large-lot zoning may also be used as a means to exclude

persons of low or moderate income; and as we have stated

before, we will not countenance community efforts at exclu-

sion under any guise (Matter of Golden v Planning Bd. of

KURZIUS v UPPER BROOKVILLE [51 NY2d 338] 345

Opinion per GaBRIELLI, J.

Town of Ramapo, 30 NY2d 359, 378, app dsmd 409 US 1003,

supra).

[4] The tests for determining when large-lot zoning has been

used in an impermissible manner are suggested by our deci-

sion in Berenson v Town of New Castle (38 NY2d 102, supra).

In that case we dealt with the validity of an ordinance

excluding multifamily housing as a permitted use. There we

expressed our concern for balanced and integrated communi-

ties, as well as our concern that regional needs be met. These

concerns gave rise to a two-part test. First, the local board is

required to provide a properly balanced and well-ordered plan

for the community. Secondly, in enacting the zoning ordi-

nance, consideration must be given to regional needs and

requirements. This portion of the test was fashioned to meet

the demands of both the Constitution and New York’s statu-

tory scheme, because under either basis the regulation must

promote the regional welfare (see Developments in the Law—

Zoning, 91 Harv L_Rev 1427, 1638). It requires a “balancing of

the local desire to maintain the status quo within the commu-

nity and the greater public interest that regional needs be

met” (Berenson v Town of New Castle, supra, p 110). In this

regard we there noted that “[s]o long as the regional and local

needs for such housing were supplied by either the local

community or by other accessible areas in the community at

large, it cannot be said, as a matter of law, that such an

ordinance had no substantial relation to the public health,

safety, morals or general welfare” (supra, p 111).

Generally then, a zoning ordinance enacted for a statutorily

permitted purpose will be invalidated only if it is demon-

strated that it actually was enacted for an improper purpose

or if it was enacted without giving proper regard to local and

regional housing needs and has an exclusionary effect. Once

an exclusionary effect coupled with a failure to balance the

local desires with housing needs has been proved, then the

burden of otherwise justifying the ordinance shifts to the

defendant (see Developments in the Law—Zoning, 91 Harv L

Rev 1427, 1641). Such is not, however, the case before us.

[1] In the instant case, plaintiffs attempted to show that the

enactment of the village ordinance was motivated by an

improper purpose by pointing to a portion of the testimony of

the architect retained by the village board. In his testimony

he stated that he had consulted with people within the village

including, of course, large landowners. This testimony does

Tes

346 51 NEW YORK REPORTS, 2d SERIES

Opinion per GaBRIELu, J.

not and cannot sustain the plaintiffs’ burden of proving an

exclusionary purpose, nor does it demonstrate any such pur-

pose, particularly when coupled with the other evidence pre-

sented in this case. The record shows clearly that the purpose

of the ordinance was to preserve the open-space areas of the

village, which may be a legitimate goal of multiacre zoning

(see Agins v City of Tiburon, — US —, 100 S Ct 2138, supra).

Additionally, plaintiffs have not demonstrated that the ordi-

nance in question was not enacted in accordance with a

comprehensive master plan, or that pressing regional needs ©

were ignored in formulating the ordinance.* There was no

proof that persons of low or moderate incomes were foreclosed

from housing in the general region because of an unavailabil-

ity of properly zoned land. In fact, there was no showing of

need in the village for lots of less than five acres. Thus,

plaintiffs failed to prove that the two-pronged Berenson test

i had not been met. Absent a showing by plaintiff of an exclu-

sionary purpose behind a zoning ordinance, or that the zoning

authority had failed to meet the criteria set forth in Berenson,

the presumption of constitutionality which accompanies the

legislative act must prevail unless the ordinance is without a

doubt facially invalid. Based upon the record before us, we

cannot say that the ordinance in question was an unreasona-

ble and improper exercise of the police power, or beyond the

power delegated by section 7-704 of the Village Law.

Although some courts have assertedly found multiacre zon-

ing to be per se exclusionary and thus invalid (Developments

in the Law—Zoning, 91 Harv L Rev 1427, 1641), we do not so

hold because of what we perceive to be legitimate purposes of

such zoning (see Agins v City of Tiburon, — US —, 100 S Ct

2138, supra; Levitt v Incorporated Vil. of Sands Point, 6 NY2d

269). In regard to a related question, the Supreme Court has

noted that “[a] quiet place where yards are wide, people few,

and motor vehicles restricted are legitimate guidelines in a

land-use project addressed to family needs” (Village of Belle

Terre v Boraas, 416 US 1, 9). Although environmental factors

may justify large-lot zoning, we do not hold that this type of

zoning is permissible without qualification, because minimum

lot requirements may involve exclusionary practices.

Q)aithough regional needs may presently be met, this does not foreclose a zoning

ordinance from all future inquiry. As population patterns shift and the demand for

housing in a given region necessarily increases, a re-examination of an existing

zoning scheme may be warranted (see County Comrs. of Queen Anne's County v

Miles, 246 Md 355; see, also, Stee! Hil] Dev. v Town of Sanbornton, 469 F2d 956).

KURZIUS v UPPER BROOKVILLE [51 NY2d 338] 347

Opinion per GasRIELu, J.

We recognize that area zoning of this nature might in some

circumstances not here present tend to prevent some individu-

als from making use of zoned land, just as any zoning ordi-

nance tends to prevent certain other desired uses. Therefore,

in order to withstand a claim of the potential for an exclusion-

ary effect, these ordinances must be motivated by a proper

purpose. The contrary has not here been demonstrated.

In Berenson we pointed our the anomaly of a court’s being

required to perform the tasks of a regional planner, since

zoning and regional planning are essentially legislative acts

(Berenson v Town of New Castle, 38 NY2d 102, 111, supra).

Since that time several comprehensive plans for the region

have been developed. However, because these studies were not

part of the record on appeal, they could not be considered by

the court (see Matter of Levine v New York State Liq. Auth.,

23 NY2d 863). Nonetheless, they illustrate the approach to

regional zoning problems which was favored in Berenson.

Upon the record before us, plaintiffs have not met their

burden of proving an exclusionary purpose or noncompliance

with the Berenson criteria. They have thus failed to overcome

the presumption of constitutionality which attaches to the

village ordinance in question, and have failed to demonstrate

that the ordinance did not meet the requirements of the

Village Law. We also find the other arguments put forth by

plaintiffs to be without merit.

Accordingly, the order should be reversed, with costs, and

the judgment of Supreme Court, Nassau County, declaring the

ordinance to be valid, reinstated.

Chief Judge Cooke and Judges JASEN, JONES, WACHTLER,

FUCHSBERG and MEYER concur.

Order reversed, with costs, and the judgment of Supreme

Court, Nassau County, reinstated.

70 67 APPELLATE DIVISION REPORTS, 2d SERIES

Rosert E. Kurzius, Inc., et al., Appellants, v INCORPORATED

VILLAGE OF UppER BROOKVILLE, Respondent.

Second Department, March 26, 1979

SUMMARY

APPEAL from a judgment of the Supreme Court at Special

Term (DouGias F. Youna, J.), entered May 13, 1977 in

Nassau County, which, after a nonjury trial, upheld the

validity of that part of a zoning ordinance which created a

five-acre minimum lot requirement in certain areas of the

Incorporated Village of Upper Brookville which are zoned for

residential use.

HEADNOTES

Municipal Corporations — Zoning

1. A five-acre minimum lot requirement in certain portions of a village

zoned for residential use is unconstitutional as an unreasonable and im-

proper exercise of the police power inasmuch as it clearly manifests the

exclusionary goal of the village’s residential zoning; the limitation is against

the general public interest since it seeks to limit the number of people

living in the village to 1,850. The zoning power may not be used to stop the

march of progress and to preserve special benefits for a privileged group of

large landowners which consists mainly of present residents of the village,

and while the police power involves the protection of the general welfare of

the community, the “community” whose welfare must be considered in

testing the validity of an application of the zoning power by a local

government is not limited to the confines of the geographical subdivision

adopting a zoning ordinance but extends to the rights of others in search of

a more comfortable place to live as well as to the needs of the region in

which the local unit is located.

Municipal Corporations — Zoning

2. Zoning ordinances are susceptible to constitutional challenge only if

clearly arbitrary and unreasonable, having no substantial relation to the

public health, safety, morals, or general welfare, and the validity of a zoning

ordinance depends on the facts of the particular case and whether it is

really designed to accomplish a legitimate public purpose.

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES*

67 NY Jur, Zoning and Planning Laws §§ 14 et seq.

82 Am JuR 2d, Zoning and Planning §§ 11-17, 38-46

25 Am Jur Pi & Pr Forms (Rev), Zoning and Planning,

Forms 41-58

8 Am JuR Proor or Facts 2d pp 53 et seq. Unreasonable-

ness of Zoning Restriction

KURZIUS v UPPER BROOKVILLE [67 AD2d 70] 71

16 Am Jur TRIALS pp 99 et seq. Relief from Zoning

Ordinance

ANNOTATION REFERENCE

Validity of zoning regulations prescribing minimum

area for house lots or requiring area proportionate to

number of families to be housed. 95 ALR2d 716.

* By the Publisi. .’s Editorial Staff.

APPEARANCES OF COUNSEL

Farrell, Fritz, Caemmerer & Cleary, P.C. (John M. Armen-

tano and Robert V. Guido of counsel), for appellants.

Sprague, Dwyer, Aspland & Tobin, P.C. (Joseph L. Tobin,

Jr., of counsel), for respondent.

OPINION OF THE COURT

SHAPIRO, J.

(1] This appeal involves, among other issues, the constitu-

tional validity of a zoning ordinance of the defendant Incorpo-

rated Village of Upper Brookville (hereinafter village). Except

for a small area along Route 25-A zoned for business, the

remainder of the land in the village was zoned for single

homes with a minimum lot size of at least two acres in some

portions of the village and of at least five arres in the other

portions. The plaintiffs are the owners of -proximately 50

acres of land which are located within the five-acre minimum

lot zone. They attack the zoning of this land on a number of

grounds. In our opinion the sole ground which calls for ex-

tended consideration is their contention that the five-acre

minimum lot zoning is constitutionally invalid. We agree with

that contention.

THE FACTS

The village is located in the Town of Oyster Bay. Shortly

after its incorporation it adopted a building zone ordinance

covering the entire village. That ordinance restricted single-

family dwellings to two-acre minimum lots. In 1951 a small

part of the village, an area along Route 25-A, was zoned for

business. In April, 1959 the village retained Francis Dowd

McHugh, an architect specializing in urban and community

development, to make a study of the village’s zoning and

72 67 APPELLATE DIVISION REPORTS, 2d SERIES

planning. His studies showed that the area of the village

totaled 2,737 acres or approximately four and one-quarter

square miles. He testified that when he embarked on his study

the village was semirural and largely open. There were then

some residences located in several places in the village which

were on lots less than two acres in size. There were other

residences which were located on lots of from two to five acres.

There were several farm areas and some residences with five

acres or more of land. The commercial area consisted of only

two or three properties. He also testified that the estimated

population of the village at the time of his study in 1959 was

900 and that the 1960 census showed a population of slightly

more than 1,000. In January, 1976 the population of the

village was 1,232. The witness testified further that on the

basis of his study it was his opinion that the village could

accommodate a population of about 3,500.

After being retained by the trustees and the planning board

of the village, McHugh had several meetings with them which

he described as “constant informal meetings”. At one meeting,

held on November 30, 1959, he noted that 500 acres in the

village were then vacant, and 2,200 acres were used residen-

tially, of which 1,260 were of a “farm and estate character”.

He then proposed that 1,260 acres be zoned with a two-acre

minimum and that the balance be zoned with 5, 10 and 20-

acre minimums. The minutes of the meeting reveal that four

of the trustees had misgivings as to a 20-acre minimum

residential unit surviving a court test. The minutes also

indicate that the chairman of the planning board and the

mayor of the village “stressed the importance of consulting

the large landowners to give them opportunity to express

their views and position on any such proposals.”

The witness then testified that thereafter he and the mayor,

and “usually” the chairman of the planning board, met with

some of those landowners (naming three of them) who owned

considerable acreage in the village. These meetings were

arranged by either the mayor or the chairman of the planning

board and were held separately with each of the large land-

owners. The witness testified that he had not changed his

mind concerning the 2, 5, 10 and 20-acre minimums he had

proposed but that the people with whom he was meeting

“changed their desires to the various types of density.”

McHugh also testified that at later meetings the village

officials finally decided that the 10 and 20-acre proposal was

KURZIUS v UPPER BROOKVILLE (67 AD2d 70] 73

“too ambitious” and adjusted it to 8 acres. This was confirmed

by the minutes of the meeting of the planning board and

board of trustees held on March 13, 1960. At a later meeting

of the planning board held on May 11, 1960, it was decided to

take no formal steps towards the adoption of the plan pro-

posed by the witness “until further opportunity for study and

conference with property owners whose substantial property

interests were at stake and upon whose cooperation the Vil-

lage Board desires to rely.” After the May 11 meeting the

board of trustees of the village and the planning board an-

nounced that a public meeting on the subject would be held on

June 15, 1960. The letter announcing the meeting noted that

since World War II the village’s population had increased to

500 by 1950, had doubled since 1950, that the village was

continuing to grow and that if the present two-acre minimum

lot zoning prevailed with respect to the entire village it could

expect to have an ultimate population of approximately 3,500.

The letter also stated that “the mass majority of the residents

would like to see the Village stay exactly as it is.” Under the

heading “How Are These Aims To Be Achieved?” the letter

stated that this could be done, “bly maintaining the present

two-acre minimum in * * * [those] sections of the Village

which best lend themselves to further development, and by

raising the minimum acreage requirement in the least devel-

oped and most beautiful areas which at the same time because

of their rugged contour are the least appropriate for close

development.” The letter continued that “It is the belief of the

trustees, the Planning Board and our two professional consul-

tants, that the above zoning is about the minimum which can

be expected to preserve the rural aspect of the Village as we

n’ know it. It envisages a probable total population of 1,850

people.”

The zoning ordinance which was finally adopted by the

village on December 11, 1960 established the following criteria

for placing property in a two-acre zone:

(a) Adjacent areas (of Upper Brookville and a neighboring

village) are now so developed or subdivided;

“(b) Topography generally is under 5% slope, without major

watercourse, and not necessarily wooded, but is suitable for

such development;

“(c) Access (via existing County or State road) is most

convenient to the Long Island and the Oyster Bay Express-

ways; and

74 67 APPELLATE DIVISION REPORTS, 2d SERIES

“(d) Adjacent areas are now more open uses or they may be

retained as ‘Reservation’ type of use in order to ensure perma-

nent open space for such close development.”

The ordinance also established these somewhat different

criteria for placing property in the five-acre minimum lot

zone:

“(a) Topography generally is rolling; or with slopes over 5%

but also with relatively flat plateau suitable for dwelling and

farming; wooded areas of native trees and watercourses also

are prominent natural features;

“(b) Existing uses are of the same general character, or

presently larger estates may suitably be utilized for Suburban

estate purposes in future;

“(c) Adjacent areas (within the Village and along its periph-

eries) generally have similar character, or such areas are now

or may reasonably be expected to become permanent open

uses; and

“(d) Access to railroad and highway is generally less conve-

nient.”

The new five-acre minimum lot zone was called “OP-1” or

“Suburban Estate”. The ordinance described these terms in

the following language: “A modest estate with plots of at least

5 acres per single family dwelling. Generally, such uses are

deemed the most desirable and appropriate use of land in the

north and central portions of the Village. As shown on the

plan map, Suburban Estates also are deemed desirable and

appropriate in the following parts of the Village: east of Mill

River Road; north of Remsens Lane; and along both Wolver

Hollow and Matinecock-Brookville Roads.”

In 1968 the corporate plaintiff purchased a parcel of 60

acres in the village. The parcel was then a farm. Ten acres of

the parcel were located within the two-acre minimum lot zone

and the remaining 50 acres were located within the five-acre

OP-1 minimum lot zone. The corporate plaintiff constructed

two residences on five-acre plots in the OP-1 portion of the

parcel in 1968, one for the use of the individual plaintiffs,

Robert and Annemarie Kurzius, and the other for Robert’s

parents. Robert’s father has since died and that home is now

owned by his mother, Adele Kurzius, the third individual

plaintiff. Title to each of these houses was conveyed to the

individual plaintiffs in 1970. The corporate plaintiff also se-

cured subdivision approval for five two-acre lots on the two-

KURZIUS v UPPER BROOKVILLE [67 AD2d 70] 75

acre minimum lot portion of the parcel and for nine five-acre

lots on the remaining portion. The corporate plaintiff then

partially improved all of the lots by providing drainage for

them and constructing roads. Thereafter the corporate plain-

tiff constructed and sold five houses on the two-acre minimum

lot portion of the parcel.

In April, 1974 the plaintiffs brought this declaratory judg-

ment action seeking a ruling that the five-acre oe ordi-

nance was unconstitutional.

At the trial, the plaintiffs attacked the jiedissanian on the

ground that it had been adopted in disregard of the compre-

hensive master plan adopted by the village on October 11,

1960, two months prior to the adoption of the ordinance. A

second ground of attack was that the plaintiffs’ property had

been improperly classified under the standards established in

the ordinance for two-acre minimum lot and five-acre mini-

mum lot zones in that its topography did not conform to the

requirements for the OP-1 zone, that is, it was not rolling, did

not have a slope of over 5%, was not wooded and had no

watercourse. Plaintiffs also submitted evidence to support

their claim that they were unable to sell any of the five-acre

lots contained in the 50 acres in that zone and that, therefore,

the ordinance was confiscatory as applied to those 50 acres.

Plaintiffs’ final argument was that the ordinance, insofar as it

imposed five-acre minimum lot zoning on a portion of their

property, was an abuse of the police power since it did not

serve the public welfare nor meet the standards contained in

sections 7-700 and 7-704 of the Village Law and that therefore

it was unconstitutional.

Section 7-700 of the Village Law provides in relevant part:

“Grant of power.

“For the purpose of promoting the health, safety, morals, or

the general welfare of the community, the board of trustees of

a village is hereby empowered, by local law, to regulate and

restrict the height, number of stories and size of buildings and

other structures, the percentage of lot that may be occupied,

the size of yards, courts and other open spaces, the density of

population, and the location and use of buildings, structures

and land for trade, industry, residence or other purposes.”

Section 7-704 provides:

“Purposes in view.

“Such regulations shall be made in accordance with a

76 67 APPELLATE DIVISION REPORTS, 2d SERIES

comprehensive plan and designed to lessen congestion in the

streets; to secure safety from fire, panic, floods and other

dangers; to promote health and the general welfare; to provide

adequate light and air; to prevent the overcrowding of land; to

avoid undue concentration of population, to facilitate the

adequate provision of transportation, water, sewerage, schools,

parks and other public requirements. Such regulations shall

be made with reasonable consideration, among other things,

as to the character of the district and its peculiar suitability

for particular uses, and with a view to conserving the value of

buildings and encouraging the most appropriate use of land

throughout such municipality.”

ZONING AND EXERCISE OF THE POLICE POWER

It is our view that the only ground which requires consider-

ation is the one which attacks the five-acre zoning as arbitrary

and unreasonable because it has no substantial relation to the

public health, safety, morals or general welfare.

[2] In Berenson v Town of New Castle (388 NY2d 102, 107)

the Court of Appeals pointed out that the Legislature autho-

rized local boards, “‘ [flor the purpose of promoting the health,

safety, morals, or the general welfare of the community,’ to

adopt zoning ordinances regulating and restricting, among

other things, ‘the height, number of stories and size of build-

ings and other structures,’ the size of building lots and the

over-all population density. (Town Law, § 281.)” [Section 7-700

of the Village Law tracks the language of the Town Law

quoted above and as to density, declares that the board of

trustees of a village is empowered by local law, to regulate

“the density of population, and the location and use of build-

ings, structures and land for trade, industry, residence or

other purposes”.] The court in Berenson then said (p 107):

“Zoning ordinances are susceptible to constitutional challenge

only if ‘clearly arbitrary and unreasonable, having no subetan-

tial relation to the public health, safety, morals, or general

welfare.’ (Euclid v Ambler Co., 272 US 365, 395; Matter of

Diocese of Rochester v Planning Bd. of Town of Brighton, 1

NY2d 508, 522.) Thus, it necessarily follows that the validity

of a zoning ordinance depends on tlie facts of the particular

case and whether it is ‘really designed to accomplish a legiti-

mate public purpose.’ (Matter of Wulfsohn v Burden, 241 NY

288, 299.)”

In Berenson the Court of Appeals had to determine the

KURZIUS v UPPER BROOKVILLE [67 AD2d 70] 77

propriety, under the above standard, of a zoning ordinance

which entirely barred multiple dwellings from a community.

Before dealing with that problem, the court said (p 108): ‘In

1959, we sustained the validity of a village minimum lot

requirement. (Levitt v Incorporated Vil. of Sands Point, 6

NY2d 269.) The court ruled that a reasonableness requirement

was satisfied since the village was in an ‘isolated geographical

position in a fringe area on the northern tip of a peninsula’.

Moreover, the district itself consisted of ‘rolling and partly

wooded land in an attractive rural residential community.’ (6

NY2d, at p 272 [emphasis in original].)” It then stressed the

limited impact of that holding (p 108): ‘We stated that the

enactment of a two-acre minimum lot requirement might, in

an appropriate case, be a legitimate exercise of the police

power. Significantly, the lot size requirement did not extend

throughout the village itself, but only applied within one

residential district.” (Emphasis supplied.) The Berenson court

also said that while it had ruled in Matter of Golden v

Planning Bd. of Town of Ramapo (30 NY2d 359, 376, app

dsmd 409 US 1003) that a town may adopt a program provid-

ing for phased growth, “we were careful to note that ‘commu-

nity efforts at immunization or exclusion’ would not be

countenanced.”

The Court of Appeals further declared in Berenson (pp 108-

109): “New York is not the only urban State to confront the

issue presented here. As in our own State, however, the

results have been mixed. The Supreme Courts of Pennsylvania

and New Jersey have struck down exclusionary zoning ordi-

nances. (Appeal of Girsh, 437 Pa 237; Southern Burlington

County NAACP v Township of Mount Laurel, 67 NJ 151, app

dsmd 423 US 808.) A Michigan court has taken a similar

position (Bristow v City of Woodhaven, 35 Mich App 205, 218-

219.) The New Jersey and Pennsylvania cases involved mini-

mum lot requirements, similar to the New Castle ordinance,

whereas the Michigan case involved a prohibition on the use

of mobile homes. On the other hand, in three States, it has

been held permissible to exclude business structures from the

community where adequate commercial services may be read-

ily obtained in nearby communities. (Valley View Vil. v

Proffett, 221 F2d 412 [Srewart, J.] [case involved a zoning

ordinance of an Ohio village]; Cadoux v Planning & Zoning

Comm. of Town of Weston, 162 Conn 425, cert den 408 US

924; McDermott v Village of Calverton Park, 454 SW2d 577

78 67 APPELLATE DIVISION REPORTS, 2d SERIES

[Mo].) In one Federal case, the court sustained the validity of

New Hampshire village’s minimum acreage requirement, at

least as a temporary measure. (Steel Hil] Development v Town

of Sanbornton, 469 F2d 956, 962.) Florida courts have upheld

the validity of exclusionary zoning provisions without any

qualifications. (Blank v Town of Lake Clarke Shores, 161 So 2d

683 [Fla]; Gautier v Town of Jupiter Is., 142 So 2d 321 [Fla].)”

By including among the cases it cited on the issue of exclu-

sionary zoning those which involved minimum lot require-

ments the Berenson court recognized that the use of minimum

lot requirements in zoning ordinances might well involve

exclusionary practices.

The court also dealt with a second aspect of the application

of the police power to zoning ordinances when it said that in

enacting a zoning ordinance, “consideration must be given to

regional needs and requirements.” In discussing such needs

and requirements it noted (p 110): “There must be a balancing

of the local desire to maintain the status quo within the

community and the greater public interest that regional needs

be met” (emphasis supplied). The court in Berenson concluded

its discussion of the need of zoning ordinances to “foster the

development of programs designed to achieve sound regional

planning” with the following trenchant statement (p 111):

“While the people of New Castle may fervently desire to be

left alone by the forces of change, the ultimat. determination

is not solely theirs. Whether New Castle should be permitted

to exclude high density residential development depends on

the facts and circumstances present in the town and the

community at large. Until the day comes when regional,

rather than local, governmental units can make such determi-

nations, the courts must assess the reasonableness of what the

locality has done.”

[1] An examination of the testimony of the planning expert

retained by the village in the instant case to draw up a

comprehensive plan and to set up various minimum lot zoning

districts makes it clear that the decision to create the five-acre

minimum lot zoning area, added by the 1960 amendment to

the zoning ordinance, reflected the desire of those responsible

for that ordinance “to be left alone by the forces of change”

and thereby to exclude from a large part of the village anyone

who could not afford to purchase a minimum of five acres and

build a home appropriate for such a large lot. In this connec-

tion it is noteworthy that the term used by the village for

KURZIUS v UPPER BROOKVILLE [67 AD2d 70} 79

residences located on two-acre minimum lots is “‘close develop-

ment.”

The decision in Berenson v Town of New Castle (838 NY2d

102, supra) was foreshadowed by Matter of Golden v Planning

Bd. of Town of Ramapo (30 NY2d 359, 369, supra). In that

case the court dealt with an attempt to use the zoning power

“to provide an over-all program of orderly growth and ade-

quate facilities through a sequential development policy com-

mensurate with progressing availability and capacity of public

facilities.” The court rejected as “antiquated” the notion that

“the regulation of land use and development is uniquely a

function of local government—that the public interest of the

State is exhausted once its political subdivisions have been

delegated the authority to zone.” The court said (p 374):

“Experience, over the last quarter century, however, with

greater technological integration and drastic shifts in popula-

tion distribution has pointed up serious defects and commu-

nity autonomy in land use controls has come under increasing

attack by legal commentators, and students of urban problems

alike because of its pronounced insularism and its correlative

role in producing distortions in metropolitan growth patterns,

and perhaps more importantly, in crippling efforts toward

regional and State-wide problem solving, be it pollution, de-

cent housing, or public transportation (ALI, A Model Land

Development Code [Tent. Draft No. 2, April 24, 1970], Intro.

Mem., p. xv, citing Report of National Comm. on Urban

Problems [Douglas Comm.], Building the American City [1969];

see, also, New York State Planning Law Revision Study,

Study Doc. No. 4 [New York State Office of Planning Coordi-

nation, Feb., 1970]).”

The court went on to say (p 375): “There is, then, something

inherently suspect in a scheme which, apart from its professed

purposes, effects a restriction upon the free mobility of a

people until sometime in the future when projected facilities

are available to meet increased demands. Although zoning

must include schemes designed to allow municipalities to

more effectively contend with the increased demands of evolv-

ing and growing communities, under its guise, townships have

been wont to try their hand at an array of exclusionary

devices in the hope of avoiding the very burden which growth

must inevitably bring (see National Land & Inv. Co. v East-

town Twp. Bd. of Adj., 419 Pa. 504, 532, supra; Girsh Appeal,

437 Pa. 237; Concord Twp. Appeal, 439 Pa. 466, supra; see,

80 67 APPELLATE DIVISION REPORTS, 2d SERIES

also, Roberts, Demise of Property Law, 57 Cornell L. Rev. 1,

5).”

Also noteworthy are the following comments in Golden (pp

377-379):

‘It is the nature of all land use and development regula-

tions to circumscribe the course of growth within a particular

town or district and to that extent such restrictions invariably

impede the forces of natural growth (Euclid v Ambler Co., 272

U.S. 265, supra; National Land & Inv. Co. v Easttown Twp.

Bd. of Adj., 419 Pa. 504, 532, supra). Where those restrictions

upon the beneficial use and enjoyment of land are necessary

to promote the ultimate good of the community and are

within the bounds of reason, they have been sustained. ‘Zon-

ing [,however,] is a means by which a governmental body can

plan for the future—it may not be used as a means to deny

the future’ (National Land & Inv. Co. v Easttown Twp. Bd. of

Adj., 419 Pa. 504, 528, supra). Its exercise assumes that

development shall not stop at the community’s threshold, but

only that whatever growth there may be shall proceed along a

predetermined course (Euclid v Ambler Co., 272 U.S. 365, 387,

supra). It is inextricably bound to the dynamics of community

life and its function is to guide, not to isolate or facilitate

efforts at avoiding the ordinary incidents of growth. What

segregates permissible from impermissible restrictions, de-

pends in the final analysis upon the purpose of restrictions

and their impact in terms of both the community and general

public interest (see Euclid v Ambler Co., 272 U.S. 365, 387,

supra). The line of delineation between the two is not a

constant, but will be found to vary with prevailing circum-

stances and conditions (see, e.g., Euclid v Ambler Co., 272 U.S.

365, 387, supra; Rodgers v Village of Tarrytown, 302 N.Y. 115,

supra).

“What we will not countenance, then, under any guise, is

community efforts at immunization or exclusion. But, far from

being exclusionary, the present amendments merely seek, by

the implementation of sequential development and times

growth, to provide a balanced cohesive community dedicated

to the efficient utilization of land. The restrictions conform to

the community’s considered land use policies as expressed in

its comprehensive plan and represent a bona fide effort to

maximize population density consistent with orderly growth.

“Perhaps even more importantly, time growth unlike the

KURZIUS v UPPER BROOKVILLE [67 AD2d 70, 81

minimum lot requirements recently struck down by the Penn-

sylvania Supreme Court as exclusionary, does not impose

permanent restrictions upon land use (see National Land &

Inv. Co. v Easttown Twp. Bd. of Adj., 419 Pa. 504, supra;

Concord Twp. Appeal, 439 Pa. 466, supra)” (emphasis sup-

plied).

It is clear that in Golden v Planning Bd. of Town of Ramapo

(30 NY2d 359, supra) and in Berenson v Town of New Castle

(38 NY2d 102, 109, supra) the Court of Appeals elected to

follow the enlightened views of the Supreme Courts of Penn-

sylvania and New Jersey with respect to minimum lot zoning

rather than the status quo views of Florida which “have

upheld the validity of exclusionary zoning provisions without

any qualifications.” Here, unlike Levitt v Incorporated Vil. of

Sands Point (6 NY2d 269, supra) the record demonstrates that

the five-acre zoning minimum clearly manifests the exclusion-

ary goal of the village’s residential zoning. This minimum

area provision is an intrinsic and essential part of the village’s

misuse of the zoning power to limit the number of people

living in the village to 1850. It is therefore, clear that this

limitation is against the general public interest.

The record demonstrates beyond peradventure of doubt that

the leaders of the village, after consulting with some of the

large landowners, decided to use their zoning power to pre-

serve the village as a citadel of privilege. Thus their zoning

power was not being used as a proper exercise of the police

power to serve the general welfare but rather to stop the

march of progress and to preserve special benefits for the

privileged group of large landowners which consists mainly of

present residents of the village.

While the police power involves the protection of the gen-

eral welfare of the community (Dauernheim v Town Bd. of

Town of Hempstead, 33 NY2d 468, 473) the Court of Appeals

in both Golden yv Planning Bd. of Town of Ramapo (30 NY2d

359, 375, supra) and Berenson v Town of New Castle (38 NY2d

102, 111, supra), has made it clear that the “community”

whose welfare must be considered in testing the validity of an

application of the zoning power by a local government is not

limited to the confines of the geographical subdivision adopt-

ing a zoning ordinance but extends to the rights of others in

82 67 APPELLATE DIVISION REPORTS, 2d SERIES

search of a more confortable place to live as well as to the

needs of the region in which the local unit is located.*

The village contends that here, unlike National Land & Inv.

Co. v Easttown Twp. Bd. of Adj. (419 Pa 504), the zoning

ordinance’s primary purpose was not to prevent the entry of

newcomers but merely to avoid future burdens, economic and

otherwise, upon the administration of public services and

facilities. In answer, it need merely be pointed out that

exclusion of newcomers includes both selective admission as

well as total exclusion (see Township of Willistown v Chester-

dale Farms, 462 Pa 445, 449). As the Pennsylvania Supreme

Court said in Township of Willistown (citing Concord Town-

ship Appeal, 439 Pa 466) “ ‘The implication of our decision in

National Land [419 Pa. 504, 215 A.2d 597 (1965)] is that

communities must deal with the problems of population

growth. They may not refuse to confront the future by adopt-

ing zoning regulations that effectively restrict population to

near present levels * * * It is not for any given township to

say who may or may not live within its confines, while

disregarding the interests of the entire area.’ ”

In an effort to justify the exclusionary aspects of imposing

five-acre minimum lot zoning on a substantial portion of the

unused land, the village argues that it was seeking to preserve

open space. Based on the record in this case that contention is

nothing but a makeweight argument to support the exclusion-

ary effect of its zoning ordinance which was clearly designed

to stop proper growth (see Oakwood at Madison v Township of

Madison, 72 NJ 481).

We are fully aware of the line of authority which declares

that upon parties who attack a zoning ordinance rests the

burden of showing that the regulation assailed is not justified

under the police power of the State or by any reasonable

interpretation of the facts (Shepard v Village of Skaneateles,

300 NY 115, 118). We are also aware that in any area of even

“Implied in both Golden (supra) and Berenson (supra) is the truism that zoning

power, an exercise of the police power of the State, is to be used to protect and

preserve the common weal, not the private interest of individual property owners or

even of a local community. If an individual property owner or a group of such owners

wish to preserve the sparsely inhabitated rura! nature of their property they are, of

course, free to do so by voluntary association for that purpose. They may not,

however, under our system of constitutional government which guarantees equal

protection of the laws to all persons, invoke the compulsion of State power by the use

of a zoning ordinance to achieve that goal at the expense of other property owners

and would-be inhabitants of the community.

KURZIUS v UPPER BROOKVILLE [67 AD2d 70] 83

moderate density, comprehensive and balanced zoning is es-

sential to the health, safety and welfare of the community and

that the task of achieving this goal devolves upon the local

legislative body, and that its judgment must be allowed to

control if the classification is fairly debatable (Thomas v Town

of Bedford, 11 NY2d 428, 433; Rodgers v Village of Tarrytown,

302 NY 115, 121, supra; Euclid v Ambler Co., 272 US 365, 388,

supra). However, as we have noted, under the undeniable facts

in this case, the plaintiffs have met that burden for it is clear

that the ordinance before us was adopted to preserve the

present by denying the future. No longer may governmental

agencies retain the benefits of, or hereafter adopt, discrimina-

tory, exclusionary or selective zoning ordinances which are

designed solely to protect the interests of their more affluent

residents by turning a blind eye and a deaf ear to the plight of

the less fortunate of their own, or their regions’ residents.

The judgment appealed from should therefore be reversed

and a declaration should issue that that part of the zoning

ordinance which creates a five-acre minimum lot requirement

in certain portions of the village zoned for residential use is

unconstitutional because it constitutes an unreasonable and

an improper exercise of the police power. We limit our decla-

ration to the five-acre zoning minimum because that is the

only relief requested by plaintiffs.

Hopkins, J. P., GuLotra and MARTUSCELLO, JJ., concur.

Judgment of the Supreme Court, Nassau County, entered

May 13, 1977, reversed, on the law and the facts without costs

or disbursements, and it is declared-that that part of the

zoning ordinance which created a five-acre minimum lot re-

quirement in certain areas of the Incorporated Village of

Upper Brookville which are zoned for residential use is uncon-

stitutional as an unreasonable and improper exercise of the

police power.

Remittitur

COURT OF APPEALS

STATE OF NEW YORK

The Hon. Lawrence H. Cooke, Chief Judge,

Presiding.

2 No. 465

Robert e. Kurzius, Inc. & ors.,

Respondents

Ve

Incorporated Village of Upper

Brookville,

Appellant.

The appellant in the above entitled

appeal appeared by Sprague, Dwyer,

Aspland & Tobin; the respondents appeared

by Farrell, Fritz, Caemmerer & Cleary.

The Court, after due deliberation,

orders and adjudges that the order is

reversed, with costs, and the judgment of

Supreme Court, Nassau County, reinstated.

Opinion by Gabrielli, J. All concur.

The Court further orders that the

papers required to be filed and this

record of the proceedings in this Court

be remitted to the Supreme Court, Nissau

County, there to be proceeded upon

according to law.

I certify that the preceding

contains a correct record of the proceed-

ings in this appeal in the Court of

Appeals and that the papers required to

be filed are attached.

[s/

Joseph W. Bellacasa, Clerk

of the Court.

Court of Appeals, Clerk's Office, Albany

November 20, 1980