At issue in these consolidated actions is the validity of a December 5, 1978 resolution of the Board of Trustees of the Village of Spring Valley which provides, inter alia: “now, therefore, be it resolved, by the Board of Trustees of the Village of Spring Valley that a public emergency exist [sic] requiring the regulation of residential rents in all residential housing accommodations in the Village of Spring Valley” (emphasis supplied). The resolution was allegedly passed pursuant to the dictates of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4, hereinafter ETPA). The ETPA was enacted to deal with the problems arising out of an existing housing shortage. Subdivision a of section 3 thereof provides, in pertinent part:
Ҥ 3. Local determination of emergency; end of emergency
“a. The existence of public emergency requiring the regulation of residential rents for all or any class or classes of housing accommodations * * * shall be a matter for local determination within each city, town or village. Any such determination shall be made by the local legislative body *106of such city, town or village on the basis of the supply of housing accommodations within such city, town or village, the condition of such accommodations and the need for regulating and controlling residential rents within such city, town or village. A declaration of emergency may be made as to any class of housing accommodations if the vacancy rate for the housing accommodations in such class within such municipality is not in excess of five percent” (L 1974, ch 576, § 4 [§ 3, subd a], amd L 1980, ch 69, § 4).
I believe the challenged resolution is invalid because the crucial 5% vacancy determination, allegedly encompassing only buildings with six or more apartment units, was calculated in a thoroughly inadequate and haphazard manner. In addition, the resolution in issue fails to specify that it deals with buildings of six or more units, despite the clear statutory authority to specify such a limited category of residential housing. Instead, the broad language of the resolution covers “all residential housing accommodations in the Village of Spring Valley”. In light of the conceded failure to even attempt to survey this broad class of housing, the resolution is invalid.
At the outset, several pertinent observations must be made with regard to the governing standard of review. The majority places great reliance on the presumed validity of the resolution, which it characterizes as legislative in nature, and the failure of the landlords to rebut the presumption of validity. In Matter of Jewett v Luau-Nyack Corp. (31 NY2d 298, 305-306), the Court of Appeals noted: “An ordinance is distinguished from a resolution by the greater formality required for its enactment (Village Law, § 90; 5 McQuillin, Municipal Corporations, § 15.02, supra). An ordinance provides a permanent rule of government or conduct designed to affect matters arising subsequent to its adoption (Matter of Edgewood Ave. in City of Mount Vernon, 195 Misc. 314, 323-324, affd. 276 App. Div. 853; Town of Poestenkill v. Sicho, 54 Misc 2d 191, 194; Russell Sage Coll. v. City of Troy, 24 Misc 2d 344, 345-347; Kij v. Aszkler, 163 Misc. 63, 64; 5 McQuillin, Municipal Corporations, § 15.02, esp. at p. 43, and § 15.06, esp. at p. 57, supra). A resolution deals with matters of a temporary or special nature, where the action taken generally involves *107findings of fact and may be characterized as administrative (Matter of Collins v. City of Schenectady, 256 App. Div. 389, 392, supra; 1 Antieau, Municipal Corporation Law, § 4.05; Kleiber v. City of San Francisco, 18 Cal. 2d 718, 724, supra; Allen v. Wise, 204 Ga. 415, 417).”
The resolution in issue, dealing with a temporary housing emergency, and contingent upon a factual finding of a vacancy rate not in excess of 5%, could fairly be characterized as the product of an administrative determination. An administrative determination of vacancy rates would then have to be supported by substantial evidence in the record.
Even accepting the majority’s characterization of the resolution, the fact findings upon which legislation is based (in this instance the fact of a vacancy rate not in excess of 5%) are entitled to a mere rebuttable presumption of validity (see Wiggins v Town of Somers, 4 NY2d 215; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; 40 NY Jur, Municipal Corporations, § 725). In addition, a statutory restriction on the right of a landlord to charge rent for his property should be strictly construed, so that the key 5% determination provision of the statute should be read to require careful computations before a determination limiting the right to charge rent is reached (see McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 311, 312; Merritt v Village of Portchester, 71 NY 309).
Even accepting the presumption of validity of the fact findings upon which the resolution is based, the record herein supports the conclusion of the Supreme Court that the presumption has been rebutted. As previously noted, the challenged resolution covers all residential housing in the Village of Spring Valley. In light of the conceded failure to even attempt to survey the vacancy rate for all of the residential housing in the village, the resolution is invalid.
The majority ignores this fatal flaw by accepting the argument that it was not necessary to survey what the majority terms the “under-sixes” and other exempt properties because a declaration of a rental emergency would have no practical effect on the rents that could be charged for the exempt properties. This stance ignores the entire premise of the ETPA as well as this court’s previous *108decision in Central Plains Co. v City of White Plains (48 AD2d 326, 329-330), which states, in pertinent part:
“We find, however, that the Act is clear and unambiguous * * * The statute succinctly states that when the vacancy rate for ‘housing accommodations within such municipality is not in excess of five percent’ an emergency may be declared. It makes no exclusions. When the statute speaks of all housing in a city and its concomitant vacancy rate, it means precisely that, all housing. The fact that the Act specifically precludes a local government from regulating certain enumerated housing as defined in subdivision a of section 5 simply embodies the legislative restriction that housing already regulated should not be burdened with additional local regulation. But this directive has no bearing on the total number of housing units which are in fact available in a local area. In order to determine this a municipality must, as the City of White Plains has, survey all units within its city confines. The term exempt housing means, therefore, exempt from regulation under the Act, not exempt from consideration in determining vacancies. Although there is not unanimity of opinion, letters from the State Rent Administrator and the State Commissioner of the Division of Housing and Community Renewal, contained in the record on this appeal, support this position. And Mr. Justice Beisheim, in a case very similar to the instant one, specifically rejected the argument that exempt housing may not be included in a companion survey conducted by the City of Yonkers (Seasons Realty Corp. v City of Yonkers, 80 Misc 2d 601).
“The plaintiffs may be correct that the exempt housing is always fully occupied and therefore an emergency situation may exist at all times since the vacancy rate in the nonexempt housing would have to be extremely great to offset the zero vacancy rate in the exempt units (see Amsterdam-Manhattan Inc. v City Rent & Rehabilitation Administration, 15 NY2d 1014, 1015-1017 [dissenting opn.]) However, it should be noted that the alleged full occupancy in the exempt categories may be an indicator of the unavailability of housing in the nonexempt sector. And, as previously noted, it is the scarcity of housing in an entire community which triggers an emergency declaration *109for an entire city. In any event, the Act merely permits a municipality to declare an emergency when the rental units become scarce, but does not compel such a declaration. When a statute is clear, as this Act is, courts must effectuate its mandate.” (Emphasis supplied.)
Without a survey having been conducted as to all Spring Valley residential units, including exempt properties, there is no basis in the record for concluding that a housing emergency exists. Although there might be a shortage of units in larger buildings of six or more units, the potential availability of housing in smaller buildings and other accommodations means that there might be a great deal of housing available in the Spring Valley market as a whole.* Accordingly, there is no basis for concluding there is an emergency with regard to all residential housing accommodations in Spring Valley.
Even if I could accept the view that it was only necessary to survey buildings with six or more rental units, my position would remain unchanged because the procedure used to survey these units to determine vacancy rates was woefully inadequate. The survey was conducted solely on the initiative of the Village Attorney, a person who was neither a survey taker nor a statistical technician. Landlord records were never subpoenaed. Ms. Ulman sent out a series of two letters. The first referred to Spring Valley’s “annual survey”, although the uncontroverted testimony established that no survey was conducted in 1975, 1976, and 1977. The letter, although making reference to the ETPA, never focused upon the fact that a survey was being conducted to determine if it was necessary to limit the right of a landlord to charge rent based upon requisite vacancy calculations. The threat of the letters, which was carried out, to presume a zero vacancy rate, is unacceptable. The presumption was created by neither statute nor case law, but by a Village Attorney who was not empowered to create such a presumption. Nor does the record *110contain any statistical basis for concluding that a nonresponder should be deemed to have a zero vacancy rate, as opposed to a rate consistent with responders.
It strikes me as quite odd that only 18 out of 53 landlords responded to a letter which might have had so great an impact on their right to determine what rents they could charge. It would be a fair conclusion that this was because the significance of the letter was never adequately set forth. The record is also devoid of any explanation as to why only 19 of 35 nonresponders were subsequently visited by building inspectors. If the presumption of a zero vacancy rate was valid, it should have been applied to all 35 nonresponders, and if it was invalid, all 35 nonresponders had to be surveyed. The testimony of the sole statistical expert in this case was that the failure to survey 16 of the 53 landlords rendered the vacancy rate calculation too questionable to be relied upon. Furthermore, the testimony of Mark Weidman, a managing partner of a 296-unit complex with 23 vacancies, that he never received the crucial survey questionnaire, was never controverted. In short, I fear that the determination of the Village Attorney was in reality based on, in her own words, “the survey, together with my own particular knowledge of the housing situation in the village of Spring Valley” (emphasis supplied). Her personal knowledge simply could not serve as the substitute for a properly conducted, statistically sound survey.
In summary, I find myself in disagreement with the majority because it ignores the plain language of the ETPA. A resolution covering all residential housing accommodations must be based on a survey of all such units. The plain language of the statute and case law demand no less.
I also believe that the majority has improperly shifted the burden to make the determination as to the crucial vacancy rate from the village to the landlords. This has been accomplished by allowing the minimal effort of the village in conducting a seriously deficient survey to shift the burden to the landlords to rebut the vacancy rate determination. The village should be required to conduct an adequate survey in the first instance. Accordingly, I *111respectfully dissent and vote to affirm the judgment dated November 3,1982 and the two judgments dated November 18, 1982 insofar as appealed from.
Niehoff and Rubin, JJ., concur with Gibbons, J. P.; Thompson, J., dissents and votes to affirm the judgment dated November 3, 1982 and the two judgments dated November 18, 1982 insofar as appealed from, with an opinion.
Judgment of the Supreme Court, Rockland County, dated November 3, 1982 (in actions numbered 1 to 5) reversed, on the law, and two judgments of the same court, both dated November 18,1982 (in actions numbered 6 and 7, respectively), reversed insofar as appealed from by defendant Village of Spring Valley, on the law, it is declared that the resolution of the Village Board of Village of Spring Valley dated December 5, 1978 is valid, and it is directed that any and all moneys deposited by any of the plaintiffs with the Rockland County Clerk pursuant to the terms of any previously entered preliminary injunction requiring the escrowing of “excess rents” pending entry of final judgments in these actions, be paid over by said clerk to the tenants who initially paid them to the plaintiffs, together with any accrued interest thereon, less any handling fees to which said clerk may be entitled. Cross appeal by plaintiffs in action number 7 from stated portions of the judgment dated November 18, 1982 and entered in that action, dismissed as abandoned (22 NYCRR 670.20 [f]).
Appellant is awarded one bill of costs payable by respondents and respondents-appellants appearing separately and filing separate briefs.
The record indicates that the assessment rolls contained 63 properties with APT designations, covering five or fewer units. There were also 337 designations for R-2, which includes two-family dwellings. There is no indication in the record as to the vacancy rate for other forms of exempt housing accommodations. Doris F. Ulman, the former Village Attorney, conceded there were a “couple of hundred” apartments in buildings containing fewer than six apartments.