The prototype of that regulation, enacted by a neighboring town, had previously been upheld by us as proper and reasonable zoning, a valid exercise of the police power. (See Barkmann v. Town of Hempstead, 294 N.Y. 805, affg. 268 App. Div. 785. ) By that other section (Art. XVII, ยง 174.2), the Board is empowered to issue "temporary and conditional permits for a period not to exceed two (2) years for structures, buildings and uses in undeveloped sections of the Town, as determined by the Board, in contravention of the requirements of this Ordinance."
x rel. Fordham Manor Ref. Church v. Walsh, 244 N.Y. 280; Matter of Reed v. Board of Stds. Appeals, 255 N.Y. 126; People ex rel. Arseekay Syndicate v. Murdock, 265 N.Y. 158; People ex rel. Sullivan v. McLaughlin, 266 N.Y. 519; People ex rel. Hudson-Harlem Val. Tit. Mtge. Co. v. Walker, 282 N.Y. 400; Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N.Y. 534, supra, app. dsmd. 309 U.S. 633; Matter of Douglaston Civil Assn. v. Board of Stds. Appeals, 278 App. Div. 659, affd. 302 N.Y. 920; Matter of Di Bari v. Board of Stds. Appeals, 280 App. Div. 810, affd. 1 N.Y.2d 756; Matter of Ernst v. Board of Appeals, 274 App. Div. 809, affd. 298 N.Y. 831; Matter of Del Vecchio v. Tuomey, 283 App. Div. 955, affd. 308 N.Y. 749; Matter of Von Kohorn v. Morrell, 9 N.Y.2d 27). Board action refusing to grant a "special exception" is by definition and in essential character discretionary and not a denial of a right (see Matter of Reed v. Board of Stds. Appeals, 255 N.Y. 126, supra; Barkmann v. Town of Hempstead, 294 N.Y. 805). Otherwise, there would be no point in listing certain uses as the permitted ones in a use district and listing others as permissible only when specially, exceptionally and affirmatively authorized by the board. Our memorandum decision in Matter of Rothstein v. County Operating Co. ( 6 N.Y.2d 728, supra) meant that special exceptions grants or denials, even though by a legislative body, were for court review purposes administrative with the result that they are subject to review "as to reasonableness" in an article 78 proceeding.
It should also be noted in considering whether the ordinance constitutes a taking of property without due process that petitioner is not being deprived of any substantial part of the value of the premises involved. Nor is he here being totally prevented from carrying on his hobby, as was the case in People v. Miller ( 304 N.Y. 105, 109) where we quoted with approval the statement in Barkmann v. Town of Hempstead ( 268 App. Div. 785, affd. 294 N.Y. 805) that "`Depriving [defendant] of this pastime does not affect substantially [his] property rights * * * in the use of the premises, which are otherwise undisturbed and unimpaired.'" Thus, balancing the restriction as between the unlimited exercise of petitioner's hobby on the one hand and the public interest on the other, it has not been shown by any reasonable interpretation of the facts in this record that the ordinance is not justified under the police power of the State ( Shepard v. Village of Skaneateles, 300 N.Y. 115, 118); and even if the legislative classification for zoning purposes as construed by the board be "fairly debatable", the legislative judgment must be allowed to control ( Euclid v. Amber Realty Co., 272 U.S. 365, 388 supra; Rodgers v. Village of Tarrytown, 302 N.Y. 115, 121; Shepard v. Village of Skaneateles, supra; Town of Islip v. Summers Coal Lbr. Co., 257 N.Y. 167, 169, 170; Matter of Wulfsohn v. Burden, 241 N.Y. 288, 296-297).
She was found guilty in December 1983 and her conviction was thereafter affirmed by the Appellate Term. Leave to appeal to the Court of Appeals was denied ( People v. Crea, 64 N.Y.2d 758) and an appeal to the United States Supreme Court was dismissed for want of a substantial Federal question ( Crea v. New York, ___ US ___, 105 S Ct 2009). In our view, plaintiff village is entitled to a preliminary injunction against defendant's harboring of homing pigeons in light of its successful prosecution of the defendant and previous determinations of our Court of Appeals upholding the validity of ordinances such as that at bar against similar challenges ( People v. Miller, 304 N.Y. 105; Barkmann v. Town of Hempstead, 294 N.Y. 805). We note that Village Law ยง 20-2006, like Town Law ยง 268, authorizes injunctive relief against violations of a zoning ordinance without proof of any injury to the public ( see, Town of Islip v. Clark, 90 A.D.2d 500).
Absent such evidence petitioner has failed to sustain his burden of proof on this issue (see Shepard v Village of Skaneateles, 300 N.Y. 115; see generally, 1 Anderson, supra, ยง 2.09). We are unable presently to conclude that a permit system with one-year limits (as provided for in the Town Law, ยง 130), is not rationally related to the State's interest in the health, safety, morals and general welfare of the community (see Town Law, ยง 261; Barkmann v Town of Hempstead, 268 App. Div. 785, affd 294 N.Y. 805). Instead, this is a valid land-use ordinance where the line drawn by the legislative body must be respected against a charge of violation of equal protection if the ordinance is reasonable and not arbitrary (Village of Belle Terre v Boraas, 416 U.S. 1, 8) and bears a "rational relationship to a [permissible] state objective" (Reed v Reed, 404 U.S. 71, 76).
It is well settled that the objective of zoning ordinances is the regulation and restriction of property uses in order to promote the health, safety, morals and general welfare of the community (Town Law, ยง 261; Barkmann v Town of Hempstead, 268 App. Div. 785, affd 294 N.Y. 805). In the instant case, however, this section of the ordinance does not predicate its exclusionary effect upon the type of use to which the property may be subjected.
5) which, for all intents and purposes, is but an extension of the standards laid down in the prior ordinance and an implementation of its spirit and objectives. Nor do we believe that the board acted in excess of its power because the condition incidentally affected the operation of a business. The regulation of a kennel traditionally has been effectuated by a zoning ordinance; and the regulation may include the limitation on the number and age of dogs permitted (1 Anderson, New York Zoning Law and Practice [2d ed.], ยง 11.04; cf. People v. Bannett, 40 Misc.2d 296, affd. 14 N.Y.2d 493; Barkmann v. Town of Hempstead, 268 App. Div. 785, affd. 294 N.Y. 805). This case is unlike Matter of Schlosser v. Michaelis ( 18 A.D.2d 940), where the board attempted to restrict the number of employees and other details of the operation of a wholesale florist. Here, the number of dogs allowed is directly allied to the use and enjoyment of neighboring land.
Board action refusing to grant a "special exception" is by definition and in essential character discretionary and not a denial of a right (see Matter of Reed v. Board of Stds. & Appeals, 255 N. Y. 126, supra; Barkmann v. Town of Hempstead, 294 N. Y. 805). Otherwise, there would be no point in listing certain uses as the permitted ones in a use district and listing others as permissible only when specially, exceptionally and affirmatively authorized by the board...
In fact, "[b]oard action refusing to grant a 'special exception' is by definition and in essential character discretionary and not a denial of a right. Otherwise, there would be no point in listing certain uses as the permitted ones in a use district and listing others as permissible only when specially, exceptionally and affirmatively authorized by the board" (Matter of Lemir Realty Corp. v Larkin, supra, at p. 24 citing Matter of Reed v Board of Stds. Appeals, 225 N.Y. 126 (1931); Barkmann v Town of Hempstead, 294 N.Y. 805 (1945)).
The purpose of a zoning ordinance is to control and regulate the utilization, growth and development of the land within a certain locality. ( Matter of Weinrib v. Weisler, 33 A.D.2d 923, affd. 27 N.Y.2d 592; Barkmann v Town of Hempstead, 268 App. Div. 785, affd. 294 N.Y. 805.) Such local regulations relate solely to the land within a designated district and have no force and effect beyond that scope.