Hates v. City of Yonkers

1 A.D.2d 1031

Opinion

Proceeding under article 78 of the Civil Practice Act to direct the respondent superintendent of buildings to issue a permit for the erection of a business building on property located in a residence district, where business is not permitted. In the proceeding, it was contended that the zoning ordinance of the City of Yonkers which classified the property in a residential zone, is unconstitutional and invalid. The appeal is from the order dismissing the proceeding. Order unanimously affirmed, without costs. There is no evidence that the ordinance in question deprives the owner of the beneficial use of the land, nor any showing of such urgent business need as to render unsuitable and unprofitable use of the property for residence purposes. There is no showing by competent testimony of such reduction in value of the land as to constitute confiscation; nor is there any evidence of discrimination. The question involved is a debatable question of fact and it is one to be resolved within the legislative discretion. (Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250, affd. 261 N. Y. 506; Kraft v. Village of Hastings-on-Hudson, 285 N. Y. 639; Ulmer Park Realty Co. v. City of New York, 270 App. Div. 1044, affd. 297 N. Y. 788.) Present—Wenzel, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ.