Opinion
March 18, 1985
Appeal from the Supreme Court, Westchester County (Marbach, J.).
Order reversed insofar as appealed from, on the law, with costs, the second and third decretal paragraphs thereof are deleted, and it is declared that Rye City Code § 197-13.2 is invalid as it constitutes an improper regulation of the form of ownership of property.
The ordinance in question purports to create a new zoning district, applicable only to plaintiff's 22-acre lot. The ordinance further directs, among many other things, that the purported district must be maintained in single ownership, and further provides that any development of the property, which is severely restricted, be limited to residential condominiums.
As a fundamental principle, zoning is concerned with the use of the land, and not with the person who owns or occupies it ( see, e.g., Matter of Dexter v. Town Bd., 36 N.Y.2d 102, 105; Matter of Weinrib v. Weisler, 33 A.D.2d 923, affd 27 N.Y.2d 592; North Fork Motel v. Grigonis, 93 A.D.2d 883; Allen v. Town of North Hempstead, 103 A.D.2d 144).
The instant ordinance, which purports to direct how the property may be held to the exclusion of all other forms of ownership, must fail because, as a general principle, a municipality does not have the power to regulate the manner of ownership of a legal estate, as "it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulations" ( North Fork Motel v. Grigonis, supra; see also, McHenry State Bank v. City of McHenry, 113 Ill. App.3d 82, 446 N.E.2d 521, 524; CHR Gen., Inc. v. City of Newton, 387 Mass. 351, 439 N.E.2d 788, 791; Bridge Park Co. v. Borough of Highland Park, 113 N.J. Super. 219, 273 A.2d 397, 399; County of Fayette v Cossell, 60 Pa. Commw. 202, 430 A.2d 1226, 1228; Graham Ct. Assoc. v. Town Council of Town of Chapel Hill, 53 N.C. App. 543, 281 S.E.2d 418). Although in the majority of the above cases the general principle was invoked to prevent a municipality from excluding the condominium form of ownership, and here the instant ordinance permits that form of ownership to the exclusion of all others, the result is the same. The city here has attempted to dictate how property may be owned, and that is exactly what it is not authorized to do.
In light of our determination, we do not reach the other issues. Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.