The town, in the fifth through seventh paragraphs of its answer, as an affirmative defense and by way of an objection as a matter of law, demands judgment dismissing the verified complaint on the ground that the court is without power to grant the relief requested by plaintiff insofar as it requests the court to direct the town to change the zoning classification and also requests that defendants be restrained from enforcing the present zoning ordinance. The general rule regarding zoning classifications is that "courts may not usurp the legislative function of zoning property" ( Dobson Jamaica Realties v. Town of Brookhaven, 96 Misc.2d 722, 726, citing Emjay Props. v. Town of Brookhaven, 42 A.D.2d 907). "[T]he court's function is limited to the declaration of what the zoning classification may not be and does not extend to fixation of the proper zoning classification" ( Shapiro v. Town of Oyster Bay, 27 Misc.2d 844, 845; see, also, Pitaro v Randolph, 80 A.D.2d 553). However, there is an exception to that general rule.
The defendants did not appeal from the portion of the judgment which held the current B-1 zoning classification to be confiscatory, but they do contest the finding of discrimination. On this record, at least, we cannot conclude that the town board's refusal to rezone the parcel J-Business-3 was discriminatory or irrational (see Megin Realty Corp. v. Baron, 46 N.Y.2d 891). The current zoning conforms to the town's master plan and while it is apparent that a change from single-family residential must take place, the new zoning classification should be determined by the town board and not the judicial system (see Stilbell Realty Corp. v. City of New York, 54 A.D.2d 962; Emjay Props. v. Town of Brookhaven, 42 A.D.2d 907). Lazer, J.P., Gibbons, Gulotta and Cohalan, JJ., concur.
The last ground advanced by plaintiffs in support of their motion for summary judgment can be swiftly disposed of. A zoning change is a legislative act and is presumed to be constitutional and valid (Shepard v. Village of Skaneateles, 300 N.Y. 115; Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269; Emjay Props. v. Town of Brookhaven, 42 A.D.2d 907; 1 Anderson, American Law of Zoning [2d ed], § 4.26). Not only do the plaintiffs have the burden of proving the invalidity of the ordinance (see Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178), but it is rare that such a burden can be sustained on papers alone without a trial.
Zoning and land use regulations were deemed to be legislative functions, to be exercised by and within the particular expertise of the local legislative body. Thus, with the single exception of discriminatory zoning of similarly situated parcels, in which case the obvious remedy was to treat like parcels alike, a judicial declaration that a zoning ordinance was invalid as applied to a particular piece of property was never accompanied by a declaration which actually rezoned that property or placed it within a particular use classification (see, e.g., Lusk v. Town of Eastchester, 60 A.D.2d 645; Jurgens v. Town of Huntington, 53 A.D.2d 661; Emjay Props. v Town of Brookhaven, 42 A.D.2d 907). More recently, however, court challenges to exclusionary zoning on behalf of those excluded from the community have come into being, spawned by tremendous economic and social changes and the deterioration of city life.
In effect, it would prevent the municipality from amending the zoning ordinance in the future with respect to the district in which plaintiff's parcel is located, even though the amendment might be constitutional as applied to the parcel. Thus, such direction constitutes an impermissible rezoning of the parcel by the courts (see Emjay Props. v Town of Brookhaven, 42 A.D.2d 907). Mollen, P.J., Hopkins, Titone and Hawkins, JJ., concur.
The Court of Appeals therein held that nothing in that record warranted classification of the board's action as spot zoning and that the zoning was in accordance with a comprehensive plan of long duration. Allegations of confiscation are separate and distinct from allegations of discrimination or allegations that the zoning ordinance is not in accordance with a comprehensive plan. Clearly, a zoning ordinance can be discriminatory, and hence invalid, even though it falls short of being confiscatory (Udell v Haas, 21 N.Y.2d 463, 477). Finally, as a general rule, courts may not rezone property (Emjay Props. v Town of Brookhaven, 42 A.D.2d 907; Shapiro v Town of Oyster Bay, 27 Misc.2d 844, affd 20 A.D.2d 850). However, under circumstances such as those at bar, where the zoning of a plaintiff's property is discriminatory, we have held that such plaintiff must be accorded a change of zoning to remedy the discrimination (Vigilant Investors Corp. v Town of Hempstead, 34 A.D.2d 990). Hopkins, Acting P.J., Martuscello, Latham and Shapiro, JJ., concur.
Generally, the courts may not usurp the legislative function of zoning property (Emjay Props. v Town of Brookhaven, 42 A.D.2d 907) but there are exceptions to this general principle. (Hartsdale Venture Co. v Town of Greenburgh, 59 A.D.2d 903.)