(dissenting). The decision here made gives judicial sanction to a novel and unprecedented device whereby the board of trustees of a village may, in the exercise of its discretion, authorize the erection of multiple family dwellings on property, located wholly within established districts theretofore uniformly zoned for use as one- or two-family dwellings, by the simple expedient of declaring, upon the application of individuals owning a certain acreage, that henceforth such property shall constitute a new and separate zoning district. *127The device may have much to commend it in the way of administrative convenience, but it most assuredly is not “ zoning ”, as that term has previously been understood. We think the action of the board of trustees of the village of Tarrytown is unauthorized by the Village Law of this State, which is the sole source of the board’s power to act. Moreover, we feel that the board’s action, here approved, is completely at odds with all sound zoning theory and practice, and may well prove to be the opening wedge in the destruction of effective and efficient zoning in this State.
First of all, we think the board had no power to create the so-called “ Residence B-B ” district by the basic ordinance of 1947. Section III of that ordinance provided as follows: “ The boundaries of said newly created district or class of zone will be fixed by amendment of the official village building zone map, at such times in the future as such district or class of zone is applied, to properties in this village.” (Emphasis supplied.) That language can, in no sense, be considered as validly creating a new district or class of zone. It is essential to the creation of a zoning district that its physical boundaries be established in advance; otherwise there is no ‘£ district ”, there is merely the possibility that a district may one day be delineated. (Matter of Kensington-Davis Corp. v. Schwab, 239 N. Y. 54, 58-59.) Section 176 of the Village Law, entitled “ Districts ”, provides that “ * * * the board of trustees may, divide the village into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this act * * * ” (emphasis supplied). The plain import of that language is that after the board has exercised its power to ‘6 divide the village into districts ”, there should result a number of physically ascertainable districts, each having a definite “ shape ” and “ area ”. Obviously, the board of trustees, in enacting the 1947 ordinance, did not “ divide ” the village into districts; the board merely assigned a name or title to a district which might some day be created. As a result of that ordinance, no one could tell whether there would ever be any ‘1 Residence B-B districts ”, or, if so, what their number, shape and area might be. Thus, the reference in the ordinance to “ districts ” or “ zones ” is meaningless, for it is impossible to have a true “ district ” or “ zone ” without specified boundaries. As we *128said in the Kensington ease (supra, p. 58) “ Power was given under that law ‘ to divide the city into districts.’ This clearly contemplated fixed areas with defined boundaries. ’ ’ The key to any zoning ordinance is the map showing the boundaries of the areas affected. No map showing the location of the new Residence B-B district was, or could have been, made and filed with the 1947 ordinance which was therefore defective. (Village of Williston Park v. Israel, 301 N. Y. 713, affg. 276 App. Div. 968, affg. 191 Misc. 6.) All that the language of the 1947 ordinance means is that, from time to time, in the future, the board may, upon the application of individuals owning ten acres, set aside certain property in the village and assign to it the ‘1 Residence B-B ” designation. That, we submit, is “ spot zoning ”, if it may be classified as zoning at all, and is unauthorized under our statutes.
Under the mandate of section 177 of the Village Law, the regulations of the board of trustees, including the division of the village into districts, “ shall be made in accordance with a comprehensive plan ” (emphasis supplied). The action of the board in the case at bar cannot, under any view of the facts, be considered as taken “ in accordance with a comprehensive plan ”. The board takes no action on its own initiative. It makes no investigation to determine which areas of the village are suitable for the erection of multiple family dwellings, and which are not. With relation to the type of construction here involved, the board has adopted no plan, comprehensive or otherwise. Under the ordinance, the board merely waits for some individual, owning ten acres of land or who has acquired ten acres of land, to make an application to have it declared a 1 ‘ Residence B-B ” district; then the board accepts or rejects the application. That is not comprehensive planning by the board; it is just the opposite. It is spot zoning at the request of landed interests who may happen to find favor with the board. As a result of this decision, it is possible that there will be found in the residential areas of Tarrytown multiple family dwellings scattered (or spotted) haphazardly throughout the village without any studied, over-all plan — for how may the board adopt a comprehensive plan with respect to these multiple family dwellings when it is impossible for it to know the names, number and location of individuals who own or who may acquire ten-acre *129parcels and who may wish to avail themselves of the ordinance. This is an ordinance which "benefits those who can meet a property qualification and is thus undemocratic.
We are adjured by the prevailing opinion (p. 126) not “ to exalt form over substance and sacrifice substance to form ”, yet we think the decision of the majority has done just that. Essentially and basically, what has been done by the board of trustees in the instant case is to permit a nonconforming use in an established zone. Heretofore, such action has always been referred to as the granting of a “ variance ”, yet the board has here sought to cloak its ultimate objective under the label and form of “ rezoning ”. In order to protect and preserve our zoning systems from the frequent and inevitable attacks of interested parties who seek to avoid zoning laws for their own purposes, this court has imposed strict and severe limitations upon the granting of variances. Two recent illustrations are Matter of Taxpayers’ Assn. v. Board of Zoning Appeals (301 N. Y. 215), and Matter of Clark v. Board of Zoning Appeals (301 N. Y. 86). It cannot be denied that the individual respondent here would never have been able to secure a variance permitting the erection of multiple family dwellings in Residence A or B districts under the rules stated in those two cases. Nevertheless, the identical result has here been reached by denominating the action of the board as “ rezoning ”. In that fashion, the board of trustees (which, incidentally, does not even have the power to grant a variance, since that power resides in the board of appeals [Village Law, § 175]) has successfully avoided the long-established and stringent limitations upon the granting of variances, merely by adopting a procedure under the name of “ rezoning ”. Now, instead of making the required showing that (1) the land cannot yield a reasonable return if used only for a purpose allowed in that zone, (2) that the plight of the owner is due to unique circumstances and not to the general conditions of the neighborhood, and (3) that the use sought will not alter the essential character of the neighborhood (Matter of Taxpayers’ Assn. v. Board of Zoning Appeals, supra, p. 218), all a property owner need do is to show that he possesses ten acres of land and the board becomes authorized to permit a nonconforming use thereon. That, we submit, is truly exalting form over substance.
6
*130The case of Nappi v. La Guardia (295 N. Y. 652, affg. 269 App. Div. 693, affg. 184 Misc. 775), is clearly distinguishable from the case at bar. In the Nappi case, the New York City zoning resolution did not purport to establish a new district; it merely added a further permitted use to the uses already authorized in certain residence districts, in the city. The distinction is obvious and important. A person purchasing property in New York City in the designated residence districts would be on notice that the additional use was authorized. He may examine the zoning ordinance and discover, with certainty, all the permitted uses to which the adjoining property could be put. On the contrary, a person purchasing property in Tarrytown in a Residence A or B district to bring up his children now has no way of knowing whether the property next to his may or may not become the site of a multiple family dwelling with the attendant increases in population, traffic dangers, commerce and congestion.
Finally, it seems to us specious to argue that since the ultimate objective of the board might have been accomplished in a different and legal manner, that the procedure actually used should therefore be sustained. The question remains whether the particular method adopted by the board was in conformity with the legislative requirements found in the Village Law, and whether it accorded with sound, proper zoning theory and practice. In this case, we feel that the board’s action must fall on both counts. That being so, it is of no moment that the same result might have been reached through the employment of approved, legal procedures. Zoning methods are determined by the Legislature and not by the ingenuity of local boards of trustees or by the courts. In short, we think the end cannot here justify the means used.
The judgments below should be reversed and the case remitted to Special Term for the entry of a judgment in plaintiff’s favor in accordance with this opinion.
Lotjghran, Oh. J., Lewis, Dye and Froessel, JJ., concur with Fuld, J.; Conway, J., dissents in opinion in which Desmond, J., concurs.
Judgment affirmed.