(dissenting). My confreres of the majority conclude that provisions of the zoning ordinance are arbitrary and violate due process under the State Constitution. The scholarly and exhaustive opinion of Justice Lazer presents a sharp review of the changing landscape of our times as it carefully weaves its way through the trial testimony of experts for both sides as they discussed the demographic trends which presumably affect the issues before the court.
Plaintiffs’ experts noted that the percentage of American households consisting of unrelated persons living together in 1980 has doubled since 1970 and that households consisting of *60unrelated persons have been achieving greater acceptance in society. It was their conclusion, therefore, that unrelated persons should be permitted to occupy homes in the same numbers as traditional families would under normal circumstances.
On the other hand, the town’s experts found the ordinance to be valid and the town’s definition of family to be reasonable, predicated primarily upon the premises that persons who move to the suburbs seek neighborhoods that permit them to pursue and sustain family values.
The majority opinion, citing case law and commentators, statutes and law review articles, expounds in depth on our changing world and concludes that an error of constitutional proportion was committed when the town, in its reallocation of admittedly scarce single-family housing, gave priority to young married couples to the exclusion of unmarried and unrelated couples or groups living together.
All this is heady wine indeed and cannot be lightly discounted. The opinion is interesting, informative and, on first reading, impelling. However, I have great problems in fitting the conclusion reached to the facts recited. As we separate the oranges from the apples, the conclusion appears as a classic non sequitur and falls far short of the mark. I therefore respectfully dissent.
Simply stated, the real and only issue is this: Upon this record should not the legislative judgment of the Town Board be sustained?
Let us therefore take a hard look at the facts.
Plaintiffs brought this action for declaratory and injunctive relief as the owners and renters of a four-bedroom, single-family residence in the Biltmore Shores section of Massapequa, in an unincorporated area of the Town of Oyster Bay in Nassau County.
According to their verified complaint, the McMinn plaintiffs entered into a lease in June, 1976 with the other plaintiffs or their predecessors in interest, under which the owners were paid $450 a month rent and the renters apportioned the cost among themselves. The renters were males, aged 22 to 25, who grew up in the Massapequa area and all but one of whom had families living in the town. None of the renters is related to another by blood or marriage. The McMinns bought another house several blocks away in which to reside, and the renters set up what the complaint conclusorily called a “single housekeeping unit”. The trial showed that the renters share certain cleaning and housekeeping chores and occasional social activities, but the trial *61court noted that their different hours of employment precluded their sharing dinner. The basic reason for their sharing a house after moving out of their family homes was the fact that they could not afford traditional rental units in the area; in addition, they found their “cooperative housing arrangement” with persons of common interests to be an “attractive, congenial and convenient residential life style”.
Plaintiffs’ residence, however, is located in a one-family zone under section 317 of the Building Zone Ordinance of the Town of Oyster Bay. The ordinance at the time of their entering into a lease defined a “family” as “any number of persons, related by blood, marriage, or legal adoption, living and cooking together on the premises as a single housekeeping unit”. Thereafter, an amendment included in this definition any two persons not so related who were 62 years of age or older and living and cooking together as a single housekeeping unit.
In October, 1976, the town’s building and zoning inspector notified the McMinns that their use of the residence violated the building zone ordinance, and when the McMinns failed to cure the alleged violations, he issued a summons returnable in the District Court. After adjournments in that court, plaintiffs commenced this action in the Supreme Court, Nassau County, for a declaration that the ordinance was invalid on its face and as applied under the due process and equal protection provisions of the New York Constitution (art I, §§ 6, 11), under the marital status antidiscrimination provisions of section 296 (subd 5, par [a]) of the Executive Law and under the principle of the State’s limited delegation to the town of its general police powers.
At the outset, the trial court properly denied the town’s motion to dismiss this action as moot when, during trial, it was disclosed that the McMinns had executed an agreement to sell the residence to a woman who planned to live there with her child and an unrelated male companion (cf. Group House v Board of Zoning & Appeals, 45 NY2d 266, 271). After taking evidence, the court concluded that plaintiffs had failed to show that the ordinance was unlawfully exclusionary of young, single adults even though approximately 92% of all residential units in the town were zoned as one-family dwellings, even though the demand for traditional apartment units effectively raised their cost so as to exclude young single adults, and even though changing social mores encouraged young, single adults to “prefer * * * to live outside of the family home in the interval between obtaining maturity and marriage” (111 Misc 2d 1046, 1051).
*62The trial court nevertheless invalidated a portion of the ordinance to the extent that it excluded occupancy by any two individuals who were not related by blood or marriage. The court reasoned that the age-based distinction which authorized such occupancy by unrelated individuals age 62 or older was irrational, noting that the town was unique among its neighbors in authorizing this exception although it was not unique in its demographics. The court reasoned further that the Executive Law’s provision against discrimination based on marital status precluded enforcement of the ordinance to the extent it purports to prohibit occupancy in a one-family dwelling because the occupants are not married to each other.
Plaintiffs appeal from the resulting judgment to the extent that the court failed, inter alia, to declare that the zoning ordinance should not exclude unrelated persons of more than two in number from residing together as a single housekeeping unit in a one-family dwelling. Defendants cross-appeal and pray that this court declare the ordinance valid in its entirety.
In my view, the trial court was eminently correct in ruling that the evidence adduced by plaintiffs failed to demonstrate that the zoning ordinance was unconstitutionally applied to them because of its exclusionary nature. By its very definition, zoning is constantly and consistently exclusionary: some uses it sustains, other uses it discourages. The town’s decades-old restrictive definition of one-family homes has obviously come under pressure as the need for housing post-World War II children has given way to intragenerational competition between those children who, like plaintiff renters, are now young, single adults “between * * * maturity and marriage” and those children who have entered marriage and have embarked on producing and rearing the next generation. What plaintiffs ask this court to do is to arrogate unto itself the legislative task of reallocating the scarce resource of single-family housing among these two competing groups simply because, despite high demand from both, the town continues to employ a definition of single-family residency that reserves more than 90% of all housing units in the town for traditional family units to the exclusion of “cooperative” housing arrangements like plaintiffs. Such a blatant intrusion upon the legislative prerogative we should not commit (cf. Matter of Robert Paul P., 63 NY2d 233 [change in adoption laws must come from the Legislature]; Klostermann v Cuomo, 61 NY2d 525, 535 et seq. [“The paramount concern is that the judiciary not undertake tasks that the other branches are better suited to perform”]; Jones v Beame, 45 NY2d 402 [action concerning the treatment of animals in city *63zoo resulting from city financial crisis properly dismissed as beyond the scope of judicial correction, judicial process should not reorder city priorities]; see, also, Wells v Rockefeller, 311 F Supp 48, affd 398 US 901 [function of fixing congressional lines is, and should be, for Legislature; only when their work is violative of fundamental constitutional rights should the courts interfere]; Becker v Levitt, 489 F2d 1087, cert den 416 US 985 [courts are extremely reluctant to interfere with the taxing and spending power of State Legislatures]; The Courts: Separation of Powers [Roscoe Pound-American Trial Lawyers Foundation, 1983], pp 22, 94-97).
It is well established that a zoning ordinance, like any municipal law or ordinance, is cloaked with a presumption of constitutional validity (see Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 344; Rodgers v Village of Tarrytown, 302 NY 115,121). Equally well established is that a party seeking a declaratory judgment to the contrary must prove the ordinance’s unconstitutionality beyond a reasonable doubt (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 500; Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, 65; Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505; Lighthouse Shores v Town of Islip, 41 NY2d 7,11). As the Court of Appeals noted in Shepard v Village of Skaneateles (300 NY 115, 118), “[u]pon parties who attack an ordinance * * * rests the burden of showing that the regulation assailed is not justified under the police power of the state by any reasonable interpretation of the facts”, and more recently in describing this burden, the court stated: “The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well. While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality. The ordinance may not be arbitrary. It must be reasonably related to some manifest evil which, however, need only be reasonably apprehended. It is also presumed that the legislative body has investigated and found the existence of a situation showing or indicating the need for or desirability of the ordinance, and, if any state of facts known or to be assumed, justifies the disputed measure, this court’s power of inquiry ends. Thus, as to reasonableness, plaintiffs in order to succeed have the burden of showing that ‘no reasonable basis at all’ existed for the challenged portions of the ordinance” (Lighthouse Shores v Town of Islip, supra, pp 11-12).
*64In the case sub judice, plaintiffs have simply failed to carry the heavy burden that the law imposes upon them. The record before this court clearly establishes that a housing scarcity exists in the Town of Oyster Bay and that in the face of this shortage, the town simply chose to favor young married couples, who would beget and rear the very future of the town. It can scarcely be claimed that in making such an allocation of its finite resources the town board had “no reasonable basis at all” in enacting the subject zoning ordinance. Indeed, both the United States Supreme Court and our Court of Appeals have upheld the validity of one-family zoning as a means of protecting the family and its function of creating a stable, healthful environment for childrearing (see Village of Belle Terre v Boraas, 416 US 1; Group House v Board of Zoning & Appeals, 45 NY2d 266, supra; City of White Plains v Ferraioli, 34 NY2d 300). Despite the majority’s intimations to the contrary, the “cooperative” housing arrangement sought to be established in this case by a group of young males cannot possibly “bear * * * the generic character of a family unit” under the Court of Appeals gloss upon zoning ordinance provisions that, in essence, seeks to define a “family” in functional rather than biological terminology (City of White Plains v Ferraioli, supra, p 306). Unlike a family unit, exemplified by a biological family or a “surrogate family”, i.e., a group home with permanent surrogate parents, functioning as a family and supporting family values (see Group House v Board of Zoning & Appeals, supra, pp 272-273; see, also, City of White Plains v Ferraioli, supra, pp 304-305), the housing arrangement at bar lacks familial structure, cohesion and permanence. Needless to say, this group of four young males lacks the hierarchial structure of a family, and it lacks its cohesion as well. Although the trial court found that the four males shared occasional social activities, it noted that their different hours of employment precluded their sharing dinner — an activity which, surely, is a fundamental attribute of the family unit. Most important, the living arrangement lacks permanence. As the trial court found, one of the original tenants moved out soon after the signing of the lease; in January, 1977, another tenant was replaced; after the action was begun, still another of the original tenants moved out and another person moved in; and, at the beginning of trial, only one of the original tenants remained in the house. When one considers that the McMinns are owners of several other houses within the Town of Oyster Bay, all this has the look of a rooming house operation, rather than a functional family, and it must be remembered that even when speaking of group homes, the Court of Appeals warned that *65should such a home “become less of a surrogate family and more of an institution, it might then become an unpermitted use” (Group House v Board of Zoning & Appeals, supra, p 274). Nor can plaintiffs draw any support from the Executive Law’s prohibition against marital status discrimination. As the majority necessarily concedes, the plaintiffs lack standing to attack the zoning provisions as violative of this law since it is not their marital status that excludes them from having the generic character of a family unit*
The Court of Appeals has likewise upheld the concept of zoning to meet the special needs of a particular group, such as the elderly (see Maldini v Ambro, 36 NY2d 481, app dsmd 423 US 993). Again, in a society of finite resources, what is given to one group may require that it be taken from another. In this case, plaintiffs’ own exhibit in evidence, a June, 1977 comprehensive plan prepared for the town by its Department of Planning and Development, states that the insufficient supply of small housing units for the elderly, coupled with a large increase in “this valuable and stable segment of the Town’s population”, made “quality” housing for them “a number one priority”. It thus cannot be said that it was irrational or arbitrary for the town to amend its zoning ordinance to permit elderly couples not within the “family” mold to occupy single-family residences.
Accordingly, judgment should be entered in favor of defendants declaring that the building zone ordinance provision challenged in this action is constitutional and valid as to the plaintiffs (see Group House v Board of Zoning & Appeals, 45 NY2d 266, 274, supra).
Bracken and Brown, JJ., concur with Lazer, J. P.; O’Con-nor, J., dissents and votes to modify the judgment so as to declare that the ordinance in question is constitutional and valid as to the plaintiffs, with an opinion.
Judgment of the Supreme Court, Nassau County, dated August 10, 1981, modified, on the law, by (1) adding a declaration that the provision of section 1 of article 1 of the Building Zone Ordinance of the Town of Oyster Bay defining “family” is unconstitutional insofar as it prohibits two or more persons unrelated by blood, marriage or adoption to live together, (2) *66adding a provision that the ordinance is violative of the right of due process under section 6 of article I of the New York State Constitution, insofar as it prohibits occupancy of one-family homes by persons unrelated by blood, marriage or adoption, (3) adding a provision enjoining enforcement of the ordinance to the extent it is declared unconstitutional herein, and (4) adding a provision declaring that the ordinance is constitutional insofar as it limits occupancy of one-family homes to members of a single housekeeping unit. As so modified, judgment affirmed, with costs to the plaintiffs.
It should be noted that nothing in the building zone ordinance challenged by plaintiffs would appear to prevent any one of the plaintiffs from buying or renting the single-family residence in question. Marital status would be completely irrelevant. The issue is the ordinance’s restraint on types of joint occupancy for residential purposes.