Town of Somers v. Camarco

Conway, Ch. J.

The plaintiff Town of Somers seeks an injunction preventing the defendants from continuing their sand and gravel business unless they comply with the provisions of the zoning ordinance. The defendants seek to have the zoning ordinance declared unconstitutional insofar as it applies to them.

The property herein involved consists of two tracts of land because they are separated by a road running in a north-south direction. The westerly parcel consists of 27 acres: the easterly one of 28 acres. The individual defendant acquired title to those lands by deeds recorded in the months of July and August, 1943. In 1944 substantial improvements were made on the westerly parcel for the handling of sand and gravel. Special Term found that both the easterly and westerly parcels were used and continued to be used for the removal of sand and gravel as a business since a time prior to 1945 and those findings have been affirmed. Together they presently reflect an investment by defendants of substantial value in lands, plant and structures. In 1945, the Town of Somers adopted a zoning ordinance placing the property here involved in a residential zone and article II (§5, subd. B) of that ordinance provided for the continuance of nonconforming uses and structures as follows:

“ B. Continuing Non-Conforming Uses or Structures.

“ Any building, structure or actual bona fide use, involving a substantial monetary investment, which shall exist at the time of the enactment of this ordinance may be continued, even though such building, structure or use shall not conform with the provisions of this ordinance for the district in which it is located, provided such existing building, structure or use shall have been constructed, altered or used in conformity with law and which shall be in conformity with other existing law. No change of use, however, shall be made in any building or land or part thereof unless such changed use shall be in conformity with the provisions of this ordinance.”

In 1952 and 1953 the zoning ordinance was amended and subdivision U of section 10 of article II was added, and in addition, article II (§ 5, subd. B) was amended so that the protection afforded to nonconforming uses no longer applied- to any “ Natural Products Uses ” set forth in article II (§ 10, subd. U).

The residents who testified were six in number. Two, husband and wife, became' residents five years after the adoption of the zoning ordinance of 1945 and live approximately 700 feet from the subject property; two, husband and wife, became residents four years after the adoption of the zoning ordinance of 1945 and they are in sight of the subject premises with a “ bird’s eye view ” of it; óné became a resident six years after the enactment of the 1945 zoning ordinance and resides approximately 600 feet from the Camarco property. The remaining-resident of the six who testified has resided one mile south of the Camarco property since 1940.

The courts, in order to afford stability to property owners who do have existing nonconforming uses, have imposed the test of reasonableness upon such exercise of the police powers. Therefore broad general rules and tests, such as expressed in People v. Miller (304 N. Y. 105), must always be considered in this context. In addition, the extent of the reasonable exercise of the police powers varies directly with the degree of the density of the population in the city, town or village involved. An ordinance which might be considered as reasonable if enacted in New York City, could be considered as unreasonable if enacted in a smaller political subdivision (see Tenement House Dept. v. Moeschen, 179 N. Y. 325, 335). A definition of reasonableness can not be made for all occasions, and must, of necessity, be considered anew in the light of each problem presented.

Under the facts and circumstances revealed by the record in this action, subdivision B of section 5 and subdivision U of section 10 of the zoning ordinance are unconstitutional insofar as they apply to the defendants. The over-all effect of the changes in subdivision B of section 5 and the introduction of and changes in subdivision U of section 10 of the ordinance in the years 1952 and 1953, is to unreasonably deprive the defendants of a “ vested ” right and to relegate them to the position of seeking permission to do that which they had a legal right to do. Generally, nonconforming uses and structures are constitutionally protected and permitted to continue, notwithstanding the attempted contrary provisions of a new or amended zoning ordinance, unless the resulting loss to the owner is relatively slight and insubstantial (People v. Miller, 304 N. Y. 105, supra). We do not pass upon the question of what may be a proper exercise of the town’s police powers so as to prevent the creation or maintenance of a nuisance on the premises of the defendants, or to otherwise lawfully regulate the defendants’ business.

The judgment should be affirmed, with costs.