(dissenting). We would reverse and deny summary judgment.
This is a class action brought on behalf of property owners and taxpayers of the Village of Ossining. Briefly stated, the purpose of the suit is to restrain respondent Urban Development from erecting multiple dwelling units on a 12-acre tract in the village zoned by village ordinance for one-family dwellings. A prior appeal to the Court of Appeals was dismissed (31 N Y 2d 963) upon the ground that questions other than the validity of the enabling statute creating respondent were involved. We deem that question to be one of statutory rather than constitutional interpretation.
As respondent does not deny that the construction it proposes would violate the zoning ordinance, the first question is whether respondent is exempted from the restrictions. The act in questión is chapter 174 of the Laws of 1968. Subdivision (3) of section 16 is the specific grant of power that respondent relies on. Reducing the statutory verbiage to its essentials for this question, it reads: ‘ ‘ After consultation with local officials * * * the corporation * * * shall, in reconstructing * * * any project, comply with the requirements of local laws * * * provided however, that when, in the discretion of the corporation, such compliance is not feasible or practicable, the corporation * * * shall comply with the requirements of the state building construction code * * * applicable to such construction ’ ’. It could hardly be clearer that this language confers no immunity or exemption from zoning regulations. It refers exclusively and repeatedly to ‘ ‘ construction ”; and.the deviations from local laws made permissible are as to materials, processes and the like, which determine what the builder must produce in the way of safety, sanitation and other considerations. Nothing in the language relied on purports to deal with the use of buildings to be constructed or whether buildings not in conformity with allowable uses may be built, which is what zoning regulations are concerned with. It would be the broadest perversion of the language of the act to find any other interpretation.
Unfortunately, the attention of the learned Special Term which granted respondent’s application was not directed to this point. The opinion assumes, in the absence of challenge by counsel, that exemption from zoning was granted by the statute and is concerned with whether the Legislature, in view of the *399Home Buie provisions, had the power to do so. It is not necessary to decide whether the Legislature has the constitutional authority to do something which we find it did not do.
Respondent argues that the point, not having been raised below, is no longer arguable. While appellate discretion is properly and generally exercised in that way, the rule, especially outside the field of strictly private litigation, is not inviolable. Besides, the Court of Appeals having determined that nonconstitutional questions are presented, and this being the only one discernible, it must be considered viable.
Lastly, a substantial portion of respondent’s brief is devoted to the social benefits which will flow from the construction. Quite naturally it ignores the devastating effects on the householders who enacted the ordinance as a guarantee of the maintenance of the way of life they provided for themselves. These are sociological questions not properly within the competence of the court and we take no position on them except to say that we do not agree that this is an instance where the powers of darkness are attempting to block the march of social progress.
Nunez, J. P., and Kupferman, J., concur with Lane, J.; S teuer, J., dissents in an opinion in which Murphy, J., concurs.
Judgment, Supreme Court, New York County, entered on July 11,1972, affirmed, without costs and without disbursements.