Opinion
October 30, 1959
Appeal from the Chautauqua Supreme Court.
Present — McCurn, P.J., Kimball, Bastow, Goldman and Halpern, JJ. [ 16 Misc.2d 957.]
Judgment reversed on the law and facts, without costs of this appeal to any party, and judgment directed to be entered in favor of the defendants adjudging that the amendment to the Dunkirk Zoning Ordinance, adopted by the Common Council of the City of Dunkirk, New York, on the 17th day of June, 1958, is valid. Certain findings of fact disapproved and reversed and new findings made. Memorandum: We find in this record sufficient evidence to sustain the validity of the amendment to the Zoning Ordinance enacted by the Common Council in June, 1958. Upon parties, such as these plaintiffs, who attack an ordinance, "rests the burden of showing that the regulation assailed is not justified under the police power of the state by any reasonable interpretation of the facts. `If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.'" ( Shepard v. Village of Skaneateles, 300 N.Y. 115, 118; see, also, Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269; Rodgers v. Village of Tarrytown, 302 N.Y. 115, 121.) Applying this rule it cannot be said that the validity of the amendment was not fairly debatable. There was substantial evidence that the action of the Common Council did not constitute "spot zoning". It was an extension of the commercial area to include a corner property that had been long used for a nonconforming purpose. On two corners of the intersection there were gasoline service stations. All of the area north of Fifth Street on Central Avenue to Lake Erie had been zoned commercial. A substantial number of properties on Central Avenue between Fifth and Sixth are being used in part for nonresidential purposes. In fact, some of these plaintiffs are so using their residences in apparent violation of the Zoning Ordinance. All concur.