Opinion
February 5, 1940.
Action for a declaratory judgment, declaring the zoning ordinance of defendant village unconstitutional and void in so far as it restricts the use of plaintiff's property to residence purposes, and directing the building inspector to issue a permit for the construction of a gasoline station and restaurant on the premises. Judgment in favor of plaintiff reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. Findings of fact numbered 12, 16, 18 and 20 are reversed, and conclusions of law numbered 1 to 5, inclusive, are disapproved. This court makes a new finding that the zoning of plaintiff's property for residential use does not deprive the owner of the beneficial use of the land. We also find defendants' request to find numbered 29, and defendants' proposed conclusions of law numbered 1 to 3, inclusive. At most, the suitability of plaintiff's property for residential use presents a debatable question. In such circumstances the court may not substitute its judgment for that of the local legislative body. ( Matter of Fox Meadow Estates, Inc., v. Culley, 233 App. Div. 250; affd., 261 N.Y. 506.) Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.