Opinion
June 28, 1967
Appeal from a judgment of the Supreme Court, County of Schenectady, dismissing the complaint herein. On January 24, 1966, the Town Board of the Town of Niskayuna adopted a resolution amending the zoning ordinance and zoning map of the Town of Niskayuna changing the zoning classification of 13.3 acres located on the south side of the Troy Road and on the west side of Brookshire Drive and Pearse Road from "R-1" Single-Family Residence District to "R-4" Multi-Family and Professional Office District. The petitioner-appellant is a resident and property owner of the Town of Niskayuna; the respondents constitute the Town Board of the Town of Niskayuna, and the intervenor-respondent is an owner of real property in the Town of Niskayuna affected by the change in zoning. The trial court held that the proceeding, which had been commenced as an article 78 proceeding, was not proper and considered it as an action for declaratory judgment and, after a trial, judgment was granted in favor of the respondents and the complaint was dismissed. Three members of the Town Board voted in favor of the resolution, and two members voted against it. On this appeal, all parties agree that petitioner failed to obtain a sufficient number of signatures required by section 265 Town of the Town Law which would have made the amendment effective only by favorable vote of at least four members of the board and that procedurally the Town Board action was proper. Prior to the enactment of the amendment, a number of public hearings were held by the Town Planning Board and Zoning Commission and by the Town Board. The Planning Board and Zoning Commission recognized that the town did not have enough multi-dwelling areas, even though it disapproved the application, but the Town Board's Economic Development Commission did approve the application. The appellant challenges the amendment on the ground that it does not result in "promoting the health, safety, morals or the general welfare of the community." (Town Law, § 261.) The appellant contends that the trial court was in error in refusing to receive in evidence testimony relative to traffic conditions in the area and the effect on property values resulting from the change. One of the petitioner's witnesses was a police officer from the Town of Niskayuna Police Department, who was asked questions calling for conclusions as to the character of the traffic in the area and whether the change would add to the safety or benefit of the community, which questions were objected to and the objections sustained. Other witnesses who were residents of the area were questioned on the character of the traffic, the character of the neighborhood, and the effect on property values caused by the proposed change. The rulings of the trial court were proper in view of the form of the questions. Since, however, the petitioner was successful in having the record include testimony on his main contentions, either no error was committed in the exclusion of evidence, or any possible error was not prejudicial. In addition, evidence as to property values was not relevant since economic loss to a property owner resulting from a zoning change does not invalidate such a change. ( Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269; Matter of Wulfsohn v. Burden, 241 N.Y. 288.) The main contention of the appellant is that the change was not in conformance with any comprehensive zoning plan, and that the general welfare of the community was in no way enhanced, thus resulting in the unconstitutionality of the ordinance. In determining the question of reasonableness of the ordinance, all of the existing circumstances relative to the area involved, the object to be obtained and the necessity, or lack thereof, should be considered. The burden of establishing that the ordinance is unconstitutional and invalid because it is unreasonable or arbitrary, rests upon him who asserts it. ( Rodgers v. Village of Tarrytown, 302 N.Y. 115; Shepard v. Village of Skaneateles, 300 N.Y. 115.) If validity is fairly debatable, the legislative intent must be allowed to control. ( Levitt v. Incorporated Vil. of Sands Point, supra.) The record here establishes that the area involved was poorly suited to future development of one-family residences, that the future tendency was for commercial use; that the area included a trailer court existing as a nonconforming use and nearby was a cemetery, and property used in the sale of lawn mowers and snow blowers. Quality apartments as planned would benefit the town and should attract desirable residents. The petitioner further contends that the zoning change was accomplished for the benefit of the individual owners of the land involved rather than pursuant to a comprehensive plan for the welfare of the community. Although a proposed plan for the town existed, it was never formally adopted by the Town Board. In general, if a need is shown to exist for the betterment of the community and the change satisfies that need, such change may become a part of a comprehensive and well conceived plan. The Town Board made its determination after careful consideration of the relative advantages and disadvantages of the proposed change, and such amendment was in pursuance of a comprehensive plan for community development. ( Twenty-one White Plains Corp. v. Village of Hastings-on-Hudson, 14 Misc.2d 800, affd. 9 A.D.2d 934; Fieldston Garden Apts. v. City of New York, 7 Misc.2d 147, affd. 3 A.D.2d 903.) The respondents' action was neither arbitrary nor capricious and the resolution amending the zoning ordinance is valid and constitutional. ( Greenberg v. City of New Rochelle, 206 Misc. 28, affd. 284 App. Div. 891.) Judgment affirmed, with costs to respondents. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.