(concurring in part and dissenting in part). With one exception, I concur in the scholarly and comprehensive opinion of my brother Mr. Justice Gulotta.
The amended zoning ordinance enacted by the Town of New Castle in response to the caveat of Berenson v Town of New Castle (38 NY2d 102) was a derisive mockery, verging on contempt. As Mr. Justice Gulotta clearly states, the amended ordinance which purports "to provide 100 to 150 units of multifamily housing in the central business district of Chappaqua * * * was based solely on spatial capacity and, as a general matter, could not be realized without the conversion *525of existing commercial space into residential space or the construction of a second floor on the tops of one-story commercial buildings, there being so little vacant land left to develop”. He then properly points out that under those circumstances "the construction of no more than 27 new units was realistically possible.”
While he then cautions the town that "at this juncture * * * a lack of good faith” in enacting a proper ordinance "may call for sterner measures”, he nevertheless gives it six months more "to remedy its zoning deficiency”. Thus, the town is gaining additional time in its struggle for exclusiveness. I do not believe it is entitled to such a bonus. Such an extension of time to enact a proper ordinance can only constitute a signal to other municipalities to do likewise, so that if they cannot have segregation forever they will at least have it for many tomorrows.
In a case such as this where the dilatory tactics of the town have prevented the plaintiffs from proceeding with their building project for more than five years, two strikes should be out. The conduct of the town fathers exhibits a flagrant and intentional and malicious policy of disregard for the law which was clearly intended to impede, if not entirely defeat, the rights of the plaintiffs. Thus, the zoning ordinance should be declared invalid with no period of grace. If there is no zoning until the town fathers shoulder their proper responsibilities — so be it. They should not be given leisure time to reform. Enough is enough.
Mollen, P. J., Hopkins and Martuscello, JJ., concur with Gulotta, J.; Shapiro, J., concurs in part and dissents in part, with an opinion.
Judgment of the Supreme Court, Westchester County, entered December 30, 1977, modified, on the law, by deleting the third, fourth, fifth and sixth decretal paragraphs thereof and substituting therefor provisions (1) remanding the matter to the town board to remedy its zoning deficiency within a period of six months, (2) directing the town board to rezone plaintiffs’ property for multifamily use and (3) directing that Special Term retain jurisdiction for the purpose of allowing plaintiffs to challenge the sufficiency and validity of any amended ordinance by supplemental pleadings in this case. As so modified, judgment affirmed, with costs to respondents payable by appellant.