(dissenting). I dissent in part and vote to affirm the judgment in toto for the following reasons:
Pratt Oval in Glen Cove consists of slightly over 19 acres, divided roughly into a 4-acre presently vacant interior area, surrounded by a 15-acre area, presently used for industrial purposes. By a 1960 amendment to the defendant city’s Building-Zone Ordinance, both areas were reclassified from light manufacturing to residential use. After trial, Special Term found that the 1960 amendment was unconstitutional as to the 4-acre interior area, but constitutional as to the surrounding 15-acre area.
I agree with the conclusion of the majority of this court that the ordinance is constitutional as to the surrounding 15-acre area, but dissent from the conclusion that the ordinance is likewise constitutional as to the 4-acre interior area.
The 4-acre interior area is concededly not suitable for residence purposes, since it is surrounded by substantial and profitably operated factory buildings in the 15-acre area. Although the factory buildings are nonconforming uses, it is unreasonable to assume that these uses will be discontinuéd or that the building's will be demolished within the reasonably foreseeable future. To compel the owners of property in the 4-acre interior area to be bound by a zoning ordinance which limits their property to residence or to other uses, which the Special Term on sufficient evidence found to be not economically feasible, is confiscatory. These owners should not be deprived from obtaining now a reasonable use of their property; they should not be compelled to await the passage of an unreasonable, unknown or unpredictable number of years before being permitted to obtain such use (cf. Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 230-232).
The proof here clearly establishes that the interior land “ cannot at present or in the immediate future be profitably or reasonably used without violation of the restriction ” imposed by the amended ordinance. "Where an ordinance “ permanently so restricts the use of property that it cannot be used for any reasonable purpose ” then “it is plain” that the ordinance goes ‘ ‘ beyond regulation, and must be recognized as a taking of the property” (Arverne Bay Constr. Co. v. Thatcher, supra, p. 232).
It is quite true, as indicated by the majority, that every property owner must share the common burdens inevitably imposed by a zoning ordinance. Nevertheless, when such burdens become so grossly disproportionate as to deprive a particular owner *271of the substantial use of his property for an unknown and uncertain number of future years, then, as to such owner, the ordinance becomes confiscatory in its effect and unconstitutional.
Stated another way, no owner may be deprived without compensation of the substantial use of his property through the medium of a zoning ordinance ostensibly enacted for the common good. If private property must be taken by a municipality for the public welfare, the appropriate constitutional method is readily available: a condemnation proceeding in which the owner may be compensated for the full value of his property. Judicial sanction should not be given to the utilization of a zoning ordinance as a substitute for a condemnation proceeding, and thereby deprive the owner of the substantial use of his property without just compensation.
Christ and Hill, JJ., concur with Benjamín, J.; Beldock, P. J., dissents in part and votes to affirm the judgment in toto, in opinion in which Rabin, J., concurs.
Judgment, insofar as appealed from by the six plaintiff corporations (Chess et al.), affirmed, without costs.
Judgment, insofar as appealed from by the defendants, reversed on the law and the facts, without costs, and judgment directed, without costs, declaring the zoning ordinance amendment nonconfiscatory and constitutional as applied to the property of the two plaintiffs, Cateo and Rorech.
Findings of fact contained in the decision (38 Misc 2d 555), which may be inconsistent herewith, are reversed, and new findings are made as indicated in the opinion herewith.