Ulmer Park Realty Co. v. City of New York

270 A.D. 1044, 63 N.Y.S.2d 143, 1946 N.Y. App. Div. LEXIS 5257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1946
• Status: Published

Opinion

Judgment declaring unconstitutional the Zoning Resolution of the City of Mew York as applied to plaintiff’s land, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. Plaintiff failéd to overcome the presumption of constitutionality of the resolution. Its proof was insufficient to justify the finding that its land could not reasonably and profitably be used in conformity with the zoning resolution. Proof that the property could be more profitably or more beneficially used for industrial purposes than for residential purposes is not sufficient to warrant a declaration that a zoning resolution is confiscatory and unconstitutional. Where the suitability of plaintiff’s property for residential use presents a debatable question, the court may not substitute its judgment for that of the local legislative body. (Kraft V. Village of Bastings-on-Budson, 258 App. Div. 1060, affd. 285 N. Y. 639; Franklin v. Incorporated Village of Floral Park, 269 App. Div. 695, affd. 294 N. Y. 862.) Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Settle order on notice within ten days from the date of this decision. Hagarty, Acting P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.