Buckley v. Fasbender

281 A.D. 985, 121 N.Y.S.2d 3, 1953 N.Y. App. Div. LEXIS 4010

Opinion

In an action for a judgment declaring unconstitutional and void amendments to the Zoning Ordinance and Building Zone Map of the Town of Huntington, rezoning certain parcels of land from residence districts to “Light Industry” and “General Industry” classifications, and for injunctive relief, plaintiffs appeal from orders dismissing the complaint on defendants’ motions under rule 106 of the Rules of Civil Practice. Orders modified by adding at the foot thereof a provision granting leave to plaintiffs to serve an amended complaint, if they be so advised. As so modified, the orders are unanimously affirmed, without costs. The amended complaint to be served within twenty days from the entry of the order hereon. Accepting the facts alleged in the complaint and such inferences as can fairly be drawn from them as true, the complaint sufficiently shows that plaintiffs’ property rights are directly and specifically affected by the amendments so as to enable them to maintain an action to test the constitutionality of the enactments. (Cf. Marcus v. Village of Mamaroneek, 283 N. Y. 325, 332-333, and Hudson v. Town of Oyster Bay, 248 App. Div. 737.) While the complaint, as pleaded, does not state facts sufficient to constitute any cause of action, and was properly dismissed for that reason, plaintiffs may be able to allege a valid cause of action based upon the claim that the amendments in question constituted spot zoning and were not enacted pursuant to a comprehensive plan, for the general welfare of the community. (Cf. Rodgers V. Village of Tarry town, 302 N. Y. 115; Hudson V. Town of Oyster Bay, supra.) They should be permitted, therefore, to plead over, if they shall be so advised. Present — Nolan, P.' J., Carswell, Wenzel, Schmidt and Beldock, JJ.